Bias and Exclusion in Human Rights History

Sam Moyn  –

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I am so grateful to the blog, and the respondents who wrote in to it, for the attention Not Enough has gotten here. In my brief rejoinder, I will focus on the criticisms for the sake of ongoing discussion — most of which reveal the biases and exclusions in the book’s coverage, when it comes to the past or the present. And I want to cop to those, clearly, totally, and upfront.

Okay — actually, there are some provisos.

Bias and Exclusion in General

Julieta Lemaitre frames the case for bias and exclusion most generally but, in my opinion, least responsibly. Of course, everyone has a view from somewhere — including Lemaitre herself, who has spent as much time in and around American law schools as I have. But the important question is how inevitably local perspective affects coverage and ideology.

Unfortunately, Lemaitre’s response to this important question describes the book so misleadingly as to leave it unrecognizable. At the very least, therefore, her remarks provide an occasion to make some basic points about the book that seem like a non-negotiable basis for proceeding if the goal of future scholarship is to interrogate bias and exclusion in human rights history more usefully.

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When Splitters become Lumpers: Pitfalls of a Long History of Human Rights

Peter Rosenblum –

In the preface to Not Enough, Sam Moyn obliquely acknowledges the dramatic contrast between the new book and his breakthrough work on the history of human rights, the Last Utopia: “What makes the study of history exciting is that its infinity of sources and our change in perspective can allow two books on the same topic by the same person to bear almost no resemblance to each other….”

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For a close reader of Moyn’s work on human rights the differences between his two works are head-spinning.  Where Last Utopia attacked the very idea of historic continuity in explaining the human rights movement that emerged in the 1970s, Not Enough builds an entire narrative on continuities. The result is an aspirational history for a reformed human rights movement, a history of roads not taken – with respect to equality, in particular, which Moyn elevates to the ‘original’ position – that can still be reclaimed.  Not Enough lacks the skepticism that Moyn employed so effectively in The Last Utopia to explain how disconnected contemporary human rights was from its claimed antecedents and undermines arguments in both books. In addition, by not heeding his own lessons from Last Utopia, Moyn understates the emergent human rights movement’s inability to contest what became neoliberalism. As someone who confronted those issues at the time, it is harder to dismiss the claims of complicity.

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The New Class-Blindness

Cary Franklin —

Legal advocates have scored some major class-related victories in 2018. In January, an appellate court held that the administration of California’s money bail system violated the Fourteenth Amendment rights of indigent defendants. In February, the Fifth Circuit held Harris County’s money bail procedures unconstitutional on the ground that they keep the “poor arrestee” behind bars “simply because he has less money than his wealthy counterpart.” But holdings that explicitly vindicate the constitutional rights of people without financial resources remain rare, and that rarity bolsters the widespread perception that Fourteenth Amendment law offers virtually no protection against class-based discrimination.

It is true that class-based discrimination does not trigger heightened scrutiny under equal protection in the way that race-based and sex-based discrimination do. Fifty years ago—in the era of Gideon v. Wainwright and Harper v. Virginia Board of Elections—it looked to many as if the Court was poised to recognize the poor as a protected class (or perhaps, as Frank Michelman famously argued, to recognize a constitutional right to some form of minimum welfare). But in San Antonio v. Rodriguez and the abortion funding decisions, the Burger Court both declined to recognize the poor as a protected class and rejected the idea that the Constitution guarantees minimum welfare.

Scholars have often viewed those decisions as excising all class-related concerns from Fourteenth Amendment law. But that view has obscured an important and ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. My new article (The New Class-Blindness, forthcoming in the Yale Law Journal) examines the long-standing and often overlooked forms of class-related constitutional protection the Court has developed in the fundamental rights context. These protections have played an important role in some areas of Fourteenth Amendment law for over half a century. But they are now under attack by conservative judges, who have begun to argue, for the first time, that it is impermissible for courts to consider class at all when adjudicating Fourteenth Amendment claims.

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Uniting the Working Class Across Racial Lines

Uniting the Working Class Across Racial Lines

Daria Roithmayr – 

The Democratic Party is once again dividing into a left versus center configuration, just in time for the November Election. The catalyst for this renewed debate appears to be Alexandria Ocasio-Cortez’s massive primary upset in New York’s fourteenth district. Ocasio is a democratic-socialist who has focused on her district’s predominantly Latino and black working class, campaigning on a platform of Medicare for all, a federal job guarantee, and the dismantling of ICE. More than almost any other candidate this season, she has developed an affirmative vision of economic, social and racial dignity for all working-class Americans.

The daughter of Puerto Rican parents, she has argued that the interests of people of color should be represented in the district. Remarkably, some of her strongest support came from predominantly-white Astoria. To those who accused her of playing identity politics, she responded:

“I can’t name a single issue with roots in race that doesn’t have economic implications, and I cannot think of a single economic issue that doesn’t have racial implications. The idea that we have to separate them out and choose one is a con.”

This post serves as a follow-up to an earlier post in which I issued a call to unify the old and new working classes. In this post, I want to accomplish two things. First, I want to further uncover the relationship between race and class. In particular, I want to explore the argument that race segments the working class into less-free workers of color and more-free white labor. Second, I want to strengthen the call to unite the old and new working classes across the race-class divide.

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Khan on Ohio v. American Express

Lina Khan 

I recently published two pieces assessing Ohio v. American Express, the Court’s most significant antitrust opinion in a decade. At Vox, I explained how the Court’s 5-4 decision ratified a new and troubling approach to antitrust. In short, the Court created a special rule for what it describes as “two-sided transaction platforms”—a term that encompasses, for example, Amazon and Uber. Antitrust plaintiffs seeking to hold these firms accountable for wielding their power in anticompetitive ways will have to meet a much higher burden, at the earliest stage of litigation. At Take Care, I identify two areas where the Court’s majority showed remarkable disregard for traditional antitrust principles. Specifically, the Court’s reasoning assumed conduct not at issue in this case—which means it introduced a special rule that is untethered from the practices that could justify the exception in the first place. Moreover, its special rule turns on a concept that is far too malleable to sustain a critical legal distinction, undermining administrability and predictability.

In short, the Court’s decision is likely to suppress legitimate antitrust suits. It comes amid growing recognition that antitrust has failed to keep markets competitive, and that dominant companies have concentrated power across our political economy, enabling firms to depress wages, hike prices, block the rise of new businesses, stifle innovation, and exert undue political power. American Express freshly illustrates the role that the judiciary has played in defanging antitrust over decades, marshaling select economic theories and methodologies to craft jurisprudence deeply at odds with the values that animated antitrust laws. This case is a good reminder that revitalizing antitrust will require Congress and the antitrust agencies to reassert their authority over shaping the substantive content of antitrust policy.

 

Lina Khan is currently a legal fellow at the Federal Trade Commission. All views expressed in this piece are her own.

The Role of Technology in Political Economy: Part 3

Yochai Benkler 

In the prior two posts in this set I described how the leading mainstream economic explanation of rising inequality and its primary critique treat technology.  The former takes technology as central, but offers too deterministic or naturalistic a conception of both technology and markets such that it functions, in effect, to legitimize the present pattern of rising inequality and to limit the institutional imagination of how to deal with it.  The latter focuses so exclusively on the institutional determinants of bargaining 46038488 - law concept: circuit board with  scales icon, 3d renderpower, that it largely ignores technology as a distraction.  Here, what I’ll try to do is synthesize out of the work of many of us in the field an understanding of a political economy of technology that gives technology a meaningful role in the dynamic, but integrates it with institutions and ideology such that it becomes an appropriate site of struggle over the pattern of social relations, rather than either a distraction or a source of legitimation.

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The Role of Technology in Political Economy: Part 2

Yochai Benkler 

Yesterday I outlined the ways in which the dominant “skills-biased technical change” and “winner-take-all economics” explanations of inequality share an idealized view of both markets and technology as natural and necessary.  Today I’ll write about the most influential criticism of these dominant stories that have been developed by labor economists.  These focus on the central role that institutional choices played in shaping 46038488 - law concept: circuit board with  scales icon, 3d renderbargaining power, and through it, the ability of the managerial class and shareholders to cause stagnating wages for the median worker and the great extraction by the 1%.  Larry Mishel of the Economic Policy Institute, with various co-authors, played a central role for over twenty years in pushing back on the SBTC narrative. Richard Freeman early emphasized the central role of unions, work later extended and deepened by David Card and collaborators. The pro-labor economists’ story is that policy choices as diverse as minimum wage erosion (particularly for women), deregulation, monetary policy, trade, immigration, as well as legal and political attacks on unions and unionization combined to weaken labor’s negotiating power and enable managers and shareholders to extract an ever-growing share of productivity growth, leaving labor running as fast as it can just to stay in place, at best.

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In this framework, widely used in left-leaning labor economics, technology is absent as an explanatory dimension.  Its role is, at most, to divert attention from the political origins of the shape of inequality in society.  If they are right, then those of us spending our lives thinking about how technology shapes social relations are spinning our wheels and wasting energy—at least insofar as we are trying to explain the future or work or the rise and response to inequality.

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The Role of Technology in Political Economy: Part 1

Yochai Benkler 

What role does technology play in rising inequality?  Is it, as the dominant view among policymakers argues, the primary explanatory variable, operating in reasonably efficient markets to shape the value of different workers, and hence the pay they can command?  Is it, as labor economists critical of the mainstream imply, a side show, since inequality is overwhelmingly a consequence of political choices that shape bargaining power in markets pervaded by power? If we think that technology matters; that platforms and 46038488 - law concept: circuit board with  scales icon, 3d renderrobots, ubiquitous sensors and algorithms do exert a real influence on the pattern of social relations that make up the economy, but we doubt that technology causes inequality by a “natural” process driven by its own intrinsic affordances and constraints interacting with markets, then we owe ourselves a clearer story than we have given to this point.  While the past quarter century has seen a lot of work on technology and freedom, there has been substantially less critical work on economic inequality and technology.  In today’s post, I’ll describe the limits of the mainstream economists’ answer, which lies at the foundation of “the robots will take all the jobs” and the legitimation of winner-take-all markets.  Tomorrow’s post will outline the limits of the dominant left reaction, as well as the limits of Karl Polanyi’s approach, which has provided so much inspiration for the present resurgence of political economy.  Finally, in the third post I’ll outline a view of the political economy of technology.

I see technology as imposing real constraints, and providing meaningful affordances that are sufficiently significant, at least in the short to mid-term, to be a substantial locus of power over the practice of social relations.  And yet, technology is neither exogenous nor deterministic, in that it evolves in response to the interaction between the institutional ecosystem and the ideological zeitgeist of a society, such that different societies at the same technological frontier can and do experience significantly different economic and political arrangements.  In the short to mid-term, technology acts as a distinct dimension of power enabling some actors to extract more or less than their fair share of economic life; in the long term, technology is a site of struggle, whose shape and pattern are a function of power deployed over the institutional and ideological framework within which we live our lives.  The stakes are significant.  A left that ignores the implications of technology as a site of meaningful struggle risks falling into a nostalgia for the institutions of yesteryear.  But a left that continues to disdain the state and formal institutions, and to imagine that we can build purely technological solutions to inequality risks abandoning the field to the Silicon Valley techno-utopian babble that has legitimated the extractive practices of oligarchy’s most recent heroes.

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Masterpiece Cakeshop and the Constitutionalization of “Both Sides”-ism

Noah Zatz

mastercakeAt first glance, Masterpiece Cakeshop v. Colorado Civil Rights Commission appears not to be among the more important of this past term’s disastrous Supreme Court opinions. It was issued much earlier than the June blockbusters and has widely been treated as a bullet dodged, allowing a Christian conservative baker to refuse to make a cake for a same-sex wedding but not setting much of a precedent. But something more insidious may be seen at work if one revisits Masterpiece Cakeshop (allowing anti-gay discrimination if it is religiously motivated) in light of not only the travel ban opinion (allowing anti-Muslim discrimination if it is adorned with paperwork) but also the recent “civility” eruption.

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How Contemporary Antitrust Robs Workers of Power

Sandeep Vaheesan

Man Controlling Trade by Michael LantzThe political economist Albert Hirschman developed the idea that members of an organization can exercise power in two ways—through exit and voice. Market activity is associated with exit: consumers unhappy with the price or quality of service of their current wireless carrier can switch to a rival carrier offering lower rates or better service. Elections exemplify voice: voters can replace a corrupt or ineffective incumbent officeholder with a challenger promising to make the government work for ordinary people. For workers, both exit (joining a new employer) and voice (making demands of a current employer) are important. Despite the pro-worker aims of the framers of the Sherman and Clayton Acts, antitrust law today is an enemy of both exit and voice for workers.

For more than a generation, antitrust enforcers have permitted labor markets to become highly concentrated and have also interfered with the efforts of a large segment of workers to build collective power. Through their labor market actions, the Department of Justice (DOJ) and Federal Trade Commission (FTC) reinforce, rather than tame, corporate power. To create a progressive, pro-worker antitrust, legislators and policymakers must adopt a radically different vision for the field.

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