Join LPE at LSA (virtually)!

The Law and Society Association is holding its massive annual meeting online this year, and Law and Political Economy scholars will be there!

The meeting takes place beginning this Thursday, May 28.

Here is the link to the LSA conference page, where you can access sessions (LSA has said that only registered attendees may do so). At LSA, LPE goes by its alter-ego “Community Research Network 55”. CRN 55 will have 8 sessions, all of which take place in “Webinar 08” on the LSA site. The schedule is below.

There will also be an LPE Zoom happy hour on Thursday, May 28 at 6p ET. Attendance is not restricted to people who have registered to the LSA conference. Please email luke.herrine@yale.edu if you would like the link to the Zoom.

Schedule: Thu, 5/28
11:00 AM – 12:45 PM LPE Approaches to Ecology and Health
2:15 PM – 4:00 PM UnKoch the Courts: Resisting Corporate Infiltration of Our Nation’s Law Schools & Judicial System

Fri, 5/29
11:00 AM – 12:45 PM The Law and Political Economy of Global Finance-LIVE SESSION ONLY
1:00 PM – 2:45 PM Platforms, Corporations, and Competition in the Economic Organization of Society
4:00 PM – 5:45 PM Constitutionalism and Domination in and Beyond Neoliberalism

Sat, 5/30
11:00 AM – 12:45 PM Reimagining Resistance and Rights Against Neoliberalism
1:00 PM – 2:45 PM How Litigation Distributes Power
4:00 PM – 5:45 PM Running the Numbers: Situating and Questioning the Empirical Turn in Legal Scholarship

The Fiscal Reckoning to Come: Paying for Virus Relief in an Era of Tax Cuts

Ajay K. Mehrotra –

To combat the coronavirus pandemic, the federal government has enacted relief packages totaling nearly $2.5 trillion, with more aid likely to come. The fourth and latest effort contains $75 billion in grants for hospitals, and $25 billion to improve coronavirus testing. As economist Austan Goolsbee has rightly noted, “the number one rule of virus economics is that you have to stop the virus before you can do anything about economics.”

At some point, though, there will have to be a fiscal reckoning. The mounting bills of an unprecedented global healthcare crisis and its economic aftershocks will eventually come due. Indeed, commentators have already begun proposing ways to address the impending budgetary shortfalls while tackling economic inequality: from a one-time wealth tax on the wealthiest Americans to a progressive wealth tax for Europeans to an excess-profits tax on the large corporations profiteering from the crisis.

Yet, any possible tax hike in the United States will need to contend with the historical forces that, over the last four decades, have ushered in an equally unprecedented tax-cutting fervor. While now may not be the time to raise taxes, when the time does come, law and political economy activists and experts alike will have to confront the current political fervor for tax cuts. In her most recent book, Starving the Beast: Ronald Reagan and the Tax Cut Revolution, economic sociologist Monica Prasad explains how we got here, how the United States, unlike most other advanced industrialized countries, has abandoned any notion of fiscal discipline and instead embraced tax cuts and deficit spending as the answer to every economic and political dilemma.

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The Institutional Design of Community Control

K. Sabeel Rahman & Jocelyn Simonson – 

we charge genocide

(via We Charge Genocide Chicago)

As the COVID19 pandemic and economic crises continue to ravage the country, it is increasingly clear that the virus is not just a public health challenge: it is also exposing deep systemic failures of governance, and disparities of political power. Black and brown Americans are the most likely to die from this virus, a reflection of the ways in which our economy and society concentrate risk, pollution, and disinvestment in racialized ways that literally cost lives. We can see the devastating effects of the status quo in the lives of “essential workers” women and Black and brown workers in particular, who were already in positions of terrifying economic insecurity and now find themselves on the frontlines of the pandemic response. These socioeconomic inequities are the product of underlying structures born from law and public policy that shape our economy and society. A big reason why these policies systemically disadvantage communities of color and working class people in general is that the communities most affected by them rarely have decisive, influential power over these underlying systems and the laws and policies that create them.

The dialectical relationship between structural inequalities and political power compounds this difficulty: multiple layers of democratic and structural exclusion reinforce each other, reproducing unequal, racialized systems of justice and of governance. For example, when people directly affected by the criminal legal system attempt to intervene in policy debates over criminal law and procedure, they find their calls muted because they are members of a population that has been systematically disenfranchised by the very systems of criminal law that they aim to reform. The antidemocratic nature of our legal systems reinforce structural inequality; the result is that increasing community participation does not, on its own, truly tackle these deeply embedded structural problems.

Recognizing this difficulty, social movements made up of people who tend to be excluded from governing power are rethinking the notion of community participation itself. In our recently posted paper, The Institutional Design of Community Control, forthcoming in the California Law Review next month, we lift up social movement visions of local governance and use them to push toward bigger questions and concrete lessons for how local governance in particular, and institutional design more broadly, can shift power. As these social movement actors diagnose, contesting and dismantling structural inequities require a dramatic and fundamental change in how we make major policy decisions. Changing the balance of power in these decisions is in turn a question of institutional design: how we build and operate the institutions of governance, particularly in administrative institutions often overlooked by electoral politics.

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Anti-Monopoly and Regulated Industries Summer Academy: Call for Participation

cropped-fat-crony-cc1The Law and Political Economy Project is pleased to announce it will be holding an eight-week Anti-Monopoly and Regulated Industries Summer Academy in June, July, and the first week of August.

The Anti-Monopoly and Regulated Industries Summer Academy (AMRI Summer Academy) will provide participants with a crash course in political economy, anti-monopoly, public utility, and regulated industries, drawing on cutting-edge scholarship in law, economics, and social science.  Participants will come away with an understanding of the unique challenges of 21st century capitalism and a broader sense of the legal and institutional tools that can be leveraged to tackle the kinds of concentrated corporate power that are manifest today, from Big Tech to new monopoly power in sectors like healthcare, finance, agriculture, and more.

The summer academy will be held online, and it is free of charge. The intended audience is law students, graduate students, early-career scholars, activists, and early-career professionals in fields related to law and policy.

If you are interested in participating in the summer academy, please send an email to AMRIAcademy@gmail.com with (1) an explanation of your interest in the program and any relevant experience or coursework (no more than two paragraphs), and (2) a copy of your CV or resume. Space is limited and the sign-up process will close on June 1.

If you have any questions, please contact project lead Jay Varellas at jvarellas@berkeley.edu. Full details are included below.

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Labor vs. Capital: Continuing the Meritocracy Trap Debate

This post, an exchange between Andrew Hart, Marshall Steinbaum, and Daniel Markovits, continues their debate from our March 2020 series discussing The Meritocracy Trap by Daniel Markovits. Click here to read all posts in the series. 

Andrew Hart & Marshall Steinbaum: It seems to us that the issue is not whether one places income in buckets labeled “capital” or “labor,” but rather what those particular buckets signify when it comes to extremely wealthy people. We might all agree to call the $50 million that a healthcare CEO gets for working 80-hour weeks “labor” income, but the fact that the firm or the “economy” has seen fit to allocate $50 million as a proper compensation for a healthcare CEO does not, as far as we can tell, have much to do with the productive value of 4,200 hours of healthcare CEO work over the course of a year. To justify this income by reference to skill is a just-so story—part of the inequality regime of “hyper-capitalism,” as delineated in Thomas Piketty’s recent book Capital and Ideology.

But Markovits seems to accept at least some of the human capital justification for high salaries when he speaks of superordinate workers and their immense skills and training. Put another way, we think Markovits believes the operative question is whether a person needs to work 80-hour weeks to get the $50 million as a healthcare CEO, and if the answer is yes, then the money is labor income. By contrast, we believe that the question should be why a healthcare CEO is “worth” $50 million in the first place, and that the answer to that question may at least cast some doubt on the usefulness of the category “labor income” when a person’s yearly income is high enough.

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Historicizing Consumer Protection

Luke Herrine–

Learned Hand once described the task of the Federal Trade Commission as “discover[ing] and mak[ing] explicit those unexpressed standards of fair dealing which the conscience of the community may progressively develop.” In a previous post, I argued that moving consumer protection law beyond consumer sovereignty requires recovering this way of thinking, common among Progressives and inspired by the common law. Talking in terms of fair dealing requires recovering the instinct for moral economy. “Democratic forms of moral economy,” I elaborated, “require developing institutions that enable collective deliberations about which (and whose) interests various consumer markets serve and which interests they ought to serve,” and endowing these institutions with the power to shape the rules that govern those markets.

If we are to recover this style of reasoning, we will have to overcome the defense mechanisms against it in contemporary legal consciousness.

With respect to the FTC’s consumer protection authority, the most powerful defense mechanism is a morality tale about what happened when the FTC tried to imbue the notion of “unfairness” (which lies at the core of its consumer protection authority) with too much moral content. Most consumer protection lawyers have at least a vague notion that the current legal standard for determining whether an act is “unfair” was written after the FTC was chided for attempting to use its unfairness authority to ban children’s advertising some time in the 1970s. On the standard version of this story, the public recoiled at the FTC’s audacity, Congress forced the FTC to develop a more neutral/objective standard for determining whether something is “unfair”, and economists were called in to add some rigor to the proceedings. The lesson is that only bad things result when morals and politics guide consumer protection. The FTC should stick to promoting “consumer choice”.

In a new draft article, I argue that this story is bunk.

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Mutant Neoliberalism and the Politics of Culture

This post is part of our symposium on Mutant Neoliberalism. You can find the full symposium here

Corinne Blalock –

mutant neolib imageAs other contributors to this symposium have noted, Mutant Neoliberalism effectively illustrates that neoliberalism cannot be reduced to neoclassical economics or the Washington Consensus, but instead must be understood as a constantly mutating cultural and political formation. What I want to address in this piece is the methodological lessons this volume offers those working in LPE. I see two central ones. First, if neoliberalism is ever-evolving, it requires an historicized and iterative practice of critique to understand how to challenge it—critique is not a stage in the process we get past. Second, narrative and popular consciousness are vital to both comprehending neoliberalism’s power and to any hope of constructing an alternative. It’s important not only to get neoliberalism right as a theoretical and descriptive matter, but also to understand that the stakes of that debate are not academic. The debate sets the terms by which we can begin to dismantle neoliberalism. In particular, Mutant Neoliberalism encourages us to follow the lead of Stuart Hall, by looking beyond the formal, elite record of neoliberalism’s ascendance to the popular culture that undergirds its power.

The volume begins by answering one of the most common objections to the concept of neoliberalism—its lack of coherent meaning—by providing a framework that theorizes the disagreement over meaning (rather than merely rehearsing it!). In this way, the collection builds on geographer Jamie Peck’s insight that the complexity and contradictions in our understanding of neoliberalism are not flaws in the critical accounts but symptoms of the fact that the ontology of neoliberalism itself is “an evolving web of relays, routines, and relations.” Peck traces this ontological incoherence and dynamism back to the interdisciplinary origins and mission of the Mont Pèlerin Society. Callison and Manfredi, by contrast, use the framework of the mutant to focus our attention on the ever-evolving nature of actually existing neoliberalism—the way neoliberalism is entwined with and shaped by other social and political formations. In short, mutant neoliberalism makes divergences in actual existing neoliberalism something to be explained, rather than something to be explained away.

And because neoliberalism is constantly evolving, we cannot assume we know what neoliberalism looks like, or how law functions under it, based on prior critiques or earlier political frameworks. As Stuart Hall admonished, we must resist the “easy transfer of generalizations from one conjuncture, nation or epoch to another.” The left-right dichotomy in particular is, on Callison and Manfredi’s account, “increasingly inadequate to map the relationship between neoliberalism and new political forces.” Almost every essay in Mutant Neoliberalism addresses a different mutation formed through the combination of what we readily recognize as core elements of neoliberalism with other political formations. In collecting these varied accounts, Mutant Neoliberalism clearly illustrates that—from Trump to Bolsonaro—elements we had assigned to “far-right” extremism are now inextricable from policies we had previously attributed to “Third Way” regimes.

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Nationalism and Neoliberal Governance

This post is part of our symposium on Mutant Neoliberalism. You can find the full symposium here

William Davies –

mutant neolib imageIn my 2014 book The Limits of Neoliberalism, I offered a largely Weberian account of how the principle of competition provides the metaphysical ideas on which the authority of the neoliberal state depends. Crucially, I suggested, competition doesn’t just offer a single idea, but two conflicting ideas: a liberal ideal of fairness of the competitive ‘game’ (as witnessed in appeals to ‘meritocracy’ and a ‘level playing field’) and a Schmittian ideal of victory over one’s foes (as witnessed in the fields of business strategy or life coaching). There is a tension at the heart of the neoliberal state, between the ambition to install the market as a legally-mandated universal norm, and the ambition to nurture the most innovative, competitive and powerful firms and territories.

To explore the latter, I studied a discourse rarely associated with neoliberal thought, that of national competitiveness, that was developed via a network of Harvard Business School, The World Economic Forum and a handful of other think tanks and European business schools, starting in the late 1970s. This was seized enthusiastically by the European Commission during the 1990s, which saw it as a way to revitalise sluggish European economies, and a justification to cut regulation (especially employment protections) and tax.

But what fascinated me especially about this discourse (which I was studying around 2007-08, back when Lehman Brothers was a bank and Donald Trump the guy from The Apprentice) were the hints of mercantilism, nationalism and existential threat that lurked on its margins. European competitiveness was threatened by its ageing population; US competitiveness was threatened by the end of the Cold War, which had done so much to cultivate innovation. Japan and later China were a danger. If one reads Quinn Slobodian’s Globalists, surely this is not how neoliberalism is supposed to work. I encountered economists working for the European Commission, who confessed to me (off the record) that they were afraid that there was a protectionist and mercantilist substrate to the whole discourse. The reason for these recollections here is that I can now see, with the aid of William Callison and Zachary Manfredi’s superb volume, that there were hints of ‘mutant neoliberalism’ emerging on the edges of the competitiveness agenda. To use Callison and Manfredi’s suggestive metaphor, the economists’ fear was that the competitiveness ‘gene’ might ‘mutate’ into something illiberal.

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Mutant Neoliberalism, Originary Violence and Feminist Revolts in Latin America

This post is part of our symposium on Mutant Neoliberalism. You can find the full symposium here

Verónica Gago – 

mutant neolib imageIn an interview, Michel Foucault said that when “actually existing” socialism was put in scare quotes, as if it were not exactly “real,” the only thing the scare quotes revealed was the strength of an abstract ideal that theorists invariably used as a measuring stick to evaluate, and theoretically marginalize, whatever was actually happening on the ground. What if we were to apply such an ironic qualification to neoliberalism? Consider Latin America, for instance: Is there an “actually existing” neoliberalism in Latin America that fails the normative ideal of its theorists? Is this a geographically specific version of neoliberalism that has just been marginalized due to the region’s peripheral reality and unique history? It would seem, instead, that the opposite is true: The problematic feature of neoliberalism is its polymorphism, its capacity to combine and adapt. The thesis of this book points to precisely this capacity: neoliberalism’s mutant character.

With this thesis, the book seeks to answer a conjunctural question which I will also consider in this comment: Why is neoliberalism—in different geographies—allied with extreme conservatism, and even with fascism, today? The book also addresses a longstanding question which we have repeatedly posed in these years of permanent crisis: Is there any force that is capable of burying neoliberalism? Indeed, each new conjuncture only differently conjugates the question: Can the coronavirus pandemic annihilate neoliberalism? Following William Callison and Zachary Manfredi’s text on the notion of mutant neoliberalism and the possibility of its extinction, the chapters in the book respond to this series of questions with a complex answer: Even political conjunctures that seem to be animated by an opposition to neoliberal presuppositions can ultimately give them new impetus, reassembling and relaunching neoliberalism in ways that demonstrate its mutant cunning.

I would like to do two things in this comment. First, I will examine key aspects of recent Latin American developments in order to suggest a certain genealogy of neoliberalism. Second, I will address Etienne Balibar’s chapter in the book, linking it to the dynamics of generalized indebtedness in subaltern populations, and drawing connections with the recent cycle of feminist struggles.

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The Bourgeois Internationale, Part II

This post is Part II of David Grewal’s response to Mutant Neoliberalism, Part I is available here. You can find the full symposium here

David Grewal – 

mutant neolib imageAs I noted in my first post, it is possible that the COVID-19 pandemic will force a reckoning with the democratic deficit in the European Union and prompt a renewal of left-wing politics across the continent. However, the existing constitutional machinery of the five presidencies that make up the EU is both complex and considerably resistant to change, even (perhaps especially) in a crisis. In 2014, in a review of Thomas Piketty’s Capital, I wondered what we could expect from “today’s unhappy alliance between the remnants of the old workers’ parties of Western Europe and the Bundesbank?” It was mainly a rhetorical question: I expected very little from the political alliance behind “zombie” neoliberalism in Europe. But in light of what Callison and Manfredi term neoliberalism’s mutations, it is worth noting what has in fact come to pass since then: electoral defeat after electoral defeat for the left (and even center-left). This trend should give pause to those who think further federalization will provide the answer to Europe’s deep ordoliberal tendencies, and yet that seems to be the only path that many progressives in Europe can imagine (another TINA, but a teleological one).

Following Cooper’s cogent analysis, what we should expect is precisely what we have been seeing: stasis at the level of the institutions and far-right electoral strategies that leverage anti-austerity sentiment among ordinary voters by promising something that the straitjacketed parties of the mainstream center-left and even the far left have been mostly unwilling to offer: a break with neoliberalism and, if that agenda requires it, a break with ‘Europe.’ Again, the COVID-19 pandemic seems more likely to consolidate rather than repudiate this trend. It will not soon be forgotten that even pro-EU governments in France and Germany called a panicked halt to the export of medical equipment to a stricken Italy while national borders were raised again across the continent.

These events brings us to the second piece I want to discuss, Slobodian and Plehwe’s history of the rise of Eurosceptic neoliberalism, “Neoliberals against Europe,” which presents an important counter to any simplistic equation of the EU with neoliberalism (or ordoliberalism) and hence of Euroscepticism with anti-neoliberalism.

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