In recent years, variations on Engels’s concept of social murder have been adopted into British legal and sociological lexicons to conceptualize the state’s reckless sacrifices of its most vulnerable populations—people deemed socially undesirable, legally undeserving, and economically redundant. The state allows these populations to die a multitude of deaths by failing to protect them; notably, victims of social murder are relegated to society’s underclasses, if not completely excluded from the body politic, before they are physically eliminated. Social murder is neither genocide nor ethnic cleansing; instead, social murder captures the elimination of groups of people via atrocious events for which the state bears indirect or partial responsibility, through calculated abandonment instead of specific intent.

Social murder takes place in the United States, too, though it has yet to be recognized. This Article undertakes the task of introducing the concept of social murder into the American legal lexicon, explaining how the United States employs social murder as a necropolitical governance technology, and sounding an alarm concerning the likely increase in social murders as corporate authoritarianism and fascism threaten to overtake democratic rule of law. The Article makes the claim that because instances of social murder in the United States necessarily involve breaches of enforceable agreements as well as the democratic social contract, social murder is best analyzed through social contracting theory. Social murder should be viewed not simply as catastrophe, but as either extreme breach of the social contract, or as the performance of antisocial contracting that relies upon culling as governance.

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in part because the harm of racism is systemic, making it nearly impossible to attribute to a single actor. As a result, contracts cannot be fixed by declaring that contracting should be fair and making it a cause of action—instead we must address the underlying social issues that make unfair contracting economically rational. This is in part because contract law is the law of outcomes and not intentions, but 1981 mandates a deviation from this norm, requiring the court to explore the why of contract decisions. To enforce 1981 as intended, under modern conditions, requires altering the nature of contracting and shifting the burden of addressing systemic racism to the free market by analyzing economic choice—an approach that is antithetical to capitalism. Or it requires making America a place where all persons enjoy rights and lives equal to those as white citizens—an outcome that is not feasible without addressing systemic racism.

In the United States, poor children’s access to necessary healthcare is determined more by geography than medical need. This variation is not the result of thoughtful local tailoring but of excessive state autonomy and passive federal oversight. The result is a fragmented and unequal system that obscures accountability and fails the Nation’s most vulnerable children.

Building on scholarship showing how decentralized implementation of federal social programs can erode America’s social safety net, this Article examines how one of Congress’s most ambitious entitlements for children—Medicaid’s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit has been quietly undermined. In light of formidable political and legal obstacles to wide-scale reform, this Article contends that bottom-up strategies, through state-based litigation and grassroots legislative advocacy, offer the most viable path forward. Using EPSDT as a case study, this Article reveals both the structural perils of cooperative federalism and the possibilities of restoring children’s healthcare rights from the ground up.

In the one-hundred-year period since the enactment of the Federal Arbitration Act of 1925 (the Act), arbitration in the U.S. has become a battlefield embroiled in a multitude of contract law doctrines and competing arbitration jurisprudence concerning what rights can be contracted away. This battlefield has become particularly grisly with regards to the increased use of arbitration clauses in contracts with adhesive qualities between business entities and consumers. This Article seeks to confront and lay the foundations for resolving a concern raised by many arbitration scholars: scholars who argue that the use of arbitration clauses in contracts of adhesion is directly correlated with a loss of access to justice by the consumers subject to such clauses. Such scholars contend that consumers are less likely to exercise a right to arbitrate than they would be to seek out “their day in court” before a judge. These scholars further assert that the lack of transparency that marks arbitration reduces societal observation and feedback necessary to continuously improve the justice dispensed by the arbitrations that do take place. They conclude that the general treatment of consumer small-value claims (those that may be so small as to be considered almost frivolous) provides cover for small injustices perpetrated by corporate entities that, in the aggregate, result in incalculable societal harms and illicit corporate gains. These scholars often conclude that the dis-assemblage of the current arbitration system through formal or informal means is the solution that will increase access to justice for consumers.

This Article engages with the concerns of said scholars yet contends that the procedures currently in place for determining and exercising arbitration rights are missing a procedural step that would have the potential to encourage consumers to more adeptly exercise their arbitration rights and access justice within the current jurisprudential system. That procedural step is tied to the concept of consent, embedded in contract law, and, ultimately, is an expression of the freedom to contract that the existing jurisprudential landscape seeks to protect. This Author proposes that the timing of decision-making regarding the nitty-gritty of the arbitration processes navigated by a consumer may make all the difference for 1) how individual consumers seek out justice via arbitration and 2) how such individual arbitrations may effect greater societal engagement with arbitration, leading to 3) greater accountability for perpetrators of civil economic injustices considered “frivolous” in isolation yet potentially catastrophic when taken in aggregate. This Author identifies the stage of a dispute just before arbitration takes place as the appropriate time to obtain what this Author terms “True Consent”—consent that is knowledgeable because it is obtained at the point in time when the consumer is most invested in understanding the consequences of the procedural choices at issue. In other words, this Author seeks to pinpoint the moment when, if ever, the consumer is most likely to engage with the arbitration process and exercise a conscious choice in how an arbitration will proceed, and then advocates for legislation to empower that choice.