Colorblindness and Liberal Racial Paternalism in Bailey v. Alabama

Noah Zatz – 

Anyone familiar with Bailey v. Alabama understands that it was a case about racial domination in the Jim Crow South. Lonzo Bailey was a Black agricultural laborer who quit his job with a white farmer. For that, a white legal system convicted him of a crime. The prosecution was characteristic of an effort throughout the post-Civil War South to reestablish the brutal exploitation of Black labor in the aftermath of chattel slavery’s formal abolition. The Supreme Court Justices who sided with Bailey surely knew this, too.  And yet they went out of their way to deny it.

This willful, absurd denial makes Bailey an excellent vehicle for critical engagement with colorblindness rhetoric, including the limits of formally race-neutral legal doctrine as a means to address racial inequality. In particular, we can see in Bailey a particular and pernicious dynamic by which, constrained by colorblindness, liberal efforts to remedy racial injustice turn to a form of racial paternalism (terminology I adapt from a forthcoming essay by historian Nathan Connolly). Rather than treating state intervention as correcting the exploitation of systemic racial imbalances of power, racial paternalism treats legal protection as an exceptional intervention on behalf of the incompetent, often relying on the same racial stereotypes that underwrite the exploitative practice at issue.

Continue reading

Gender Inequality and the Infrastructure of Social Reproduction

Julie Suk – 

Our jurisprudence of sex equality imagines a world without prescribed gender roles in the family and the public economic and political spheres. Almost fifty years ago, the Supreme Court repudiated the “separate spheres” tradition, which confined women to role of unpaid caregiver in the family and home, while reserving breadwinning and public power to men. Yet, neither constitutional equal protection nor statutory employment discrimination law acknowledges that the separate spheres tradition formed the infrastructure of social reproduction in our political economy. Mothers at home raised the next generation of citizens-workers without pay or rights. It was an unjust infrastructure, premised on women’s subordination, but it served an enduring social need.

Today, no alternative infrastructure of social reproduction has emerged to replace the unpaid contributions of full-time mothers and homemakers. School days did not expand to match the schedule of mothers working full-time, and the definition of full-time work did not shrink to enable its participants to devote much time to the duties of child-rearing. In the absence of a robust state system of social support, working families attempt a range of uncoordinated, expensive market-based improvisations towards gender-equal relations in the home and in the public sphere. The result is an eroded and unjust infrastructure of social reproduction whose burdens fall especially hard on women; the remaining gender pay gap is largely a motherhood gap. Furthermore, poor women, often migrants, are doubly burdened when they are employed to meet the care needs of more privileged households, while caring for their own families at home. Employment anti-discrimination law was intended to counteract sexist stereotypes, but a fuller sex equality requires a new infrastructure of social reproduction.

Continue reading

Against the Cult of Competition

Sandeep Vaheesan –

business-competition-1024x681

Competition is one of the talismanic words in law and economics and American life. It is often hailed as an unqualified good and touted as a solution to what ails society. The value of competition is endorsed across the ideological spectrum: Conservatives decry the lack of competition in schools and taxi cab services, while progressives highlight the dearth of competition among multinational corporations and call for a revival of antitrust law. Notwithstanding this trans-ideological commitment, we should not privilege competition at the expense of alternative means of structuring a democratic and egalitarian political economy. Three examples illustrate how competition is deficient as a general social organizing principle and should be promoted selectively, not categorically.

Continue reading

Beyond Access to Justice: Challenging the Neoliberal Roots of Hyper-Gentrification

John Whitlow – 

New York City recently became the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of eviction. This was an important step in the fight for equal access to the courts, and a significant victory for tenant advocates who had waged a decades-long campaign to ensure fairness for people on the verge of losing their homes. I cut my teeth as a New York City tenant attorney in the early 2000s, when the right to counsel felt closer to a pipedream than a reality, and I can say unequivocally (and uncontroversially) that providing tenants with a lawyer when they enter the maw of housing court is a good thing. At the least, it will keep landlord attorneys and judges on their toes and reduce the stress and trauma tenants feel when navigating a byzantine system on their own. At the most, it will allow people to mount robust defenses and save their apartments, in the process preserving some of New York’s evaporating supply of affordable housing. But I can also say that it is not nearly enough to derail the hyper-gentrification that has been a through line of recent economic development policy and has its roots in the fiscal crisis of the 1970s.

In the context of an over-heated housing market, the right to counsel should be viewed as a limited intervention that operates when eviction is imminent, i.e. after the structural sources of displacement have done their work. Failure to recognize the limits of the right to counsel – and of access to justice paradigms more generally – naturalizes those structural sources and legitimates as normal the widening inequalities produced by our current political-economic and social order. Challenging inequality and displacement in a deep and lasting way requires moving beyond access to justice and critically engaging the core tenets of market-driven urbanization.

Continue reading

Economic Human Rights, Not Tough Policy Tradeoffs

Martha McCluskey —

According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice.

Orthodox law and economics tellsus: all rights have a cost.  Law allocates economic gain, but cannot generate it, in this view.  From this premise, any new economic rights aimed at supporting those who are disadvantaged must come at the expense of some other economic gain.  For example, a universal right to affordable health care would simply mask an inevitable tradeoff in public and private spending:  fewer resources for education or jobs.  In addition, in this logic, an economic entitlement to receive basic human support will replace market discipline with incentives for waste, reducing economic resources overall.

What orthodox law and economics doesn’t tell us:  all costs have a right.  That is, any costs associated with new economic rights arise not from essential economics, but instead from contingent legal and political arrangements. Particular legal and political regimes produce, organize and limit access to human needs like education or health care. Law itself shapes the economic forces that appear to be disrupted when law re-allocates rights to advance general human needs.

On the question of health care, for example, a complex system of legal rights and institutions already protects economic gain for some at the expense of health and economic security for others.  Legal systems distributing risks and rewards in health care include patent rights, insurance regulation, corporate governance rules, antitrust law, criminal law, and tax policy. Moreover, these legal rights are not firmly settled or self-evident, but instead are continually questioned and modified, especially in response to lobbying, litigation, and advocacy by industry interests.  New rights to egalitarian economic support can similarly re-arrange economic gain and loss as a legitimate and beneficial function of democracy.

Further, we should not presume human economic rights amount to zero sum transfers or costly economic distortions.  That conventional law and economics thinking rests on the myth of an essential market order that transcends law and politics, thereby closing off analysis of how re-structuring the market could generate far better economic conditions.  But a more complete law and political economy view recognizes that entitlements do not come at the expense of naturally productive market activity; instead, entitlements generate and govern market production. New legal rights can give people new power to resist existing market constraints, and that transformative power can lead the economy to new levels of prosperity and stability. Continue reading

The Real Barriers to Access to Justice: A Labor Market Perspective

Frank Pasquale – 

There is a vast literature on access to justice in the United States. In what Sameer Asher has diagnosed as a broadly neoliberal discourse, the legal profession itself stars as the key barrier to access to justice: It is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

Continue reading

Friday Roundup

Happy Friday!

This week, the public continued to grapple with the revelation that Facebook disclosed more than 50 million users’ account information to the right-wing political consultancy Cambridge Analytica. LPE contributor Frank Pasquale has previously described how we should understand the big internet platforms as exercising a form of “functional sovereignty,” a description seemed as apt than this week as ever, when people realized how little government regulation restricted Facebook’s use of their private information. Here are three recent pieces that have caught our attention with an LPE take on the issue:

  • Beware the Big Five – the U.S. military and intelligence sector’s venture capital funding has fostered the tech sector’s consolidation and permitted the growth of private empires on the back of publicly funded R&D.
  • Facebook Isn’t Just Violating Our Privacy – Facebook is insistent on seeing its failures as harming individuals, never society as a whole, but we must insist on using collective questions to challenge Silicon Valley’s libertarian perspective.
  • The New Military-Industrial Complex of Big Data Psy-Ops – Silicon Valley’s behavioral science research has been critical to the military and intelligence apparatus.

 

Elsewhere on the web:

 

Nick Werle is a student at Yale Law School.

Free Trade Free for All: Market Romanticism Versus Reality

Jamee K. Moudud – 

The drama surrounding President Trump’s decision to impose import tariffs on steel and aluminum has roiled the Republican Party and wide swathes of the corporate elite. The tariff decision comes on the heels of political bluster about the US being treated “unfairly” by other countries. This accusation of “unfairness” when it comes to US trade deficits is well worn. In a previous era, Japan was the alleged culprit of “unfair” trade practices because of its persistent trade surpluses with the U.S.

This type of political theater draws on a romanticized view of international trade and its persistent conflict with empirical reality. As an explanation of global trade relations,  the Heckscher-Ohlin-Samuelson (HOS) model of foreign trade relies on both of the standard neoclassical assumptions about “efficient” markets. First, it assumes perfectly competitive markets, composed of many, small firms, each without any  ability to set prices. Second, it assumes that there are zero externalities to economic transactions, meaning that transactions do not have any un-priced, third-party effects. And of course, the model assumes the economy  is fundamentally based on barter, according  no roles for money, credit, and effective demand. The absence of money implies that there is no possibility of an increase in liquidity preference (a term coined by Keynes to describe the desire to hold cash rather than illiquid assets) in uncertain times and thus no possibility of shortfalls of effective demand. Together, these propositions of the HOS model predict that a legal framework of “free trade” will produce balanced trading relationships on the international level and full employment in each domestic economy. Significantly, assuming that there is perfect competition implies that firms in each country, regardless of its level of industrialization, have access to the same technology needed to produce goods for the international market. Perfect competition implies that no firm injures others, a point of view that has been challenged by many authors. (See the edited volume by Moudud, Bina, and Mason Alternative Theories of Competition: Challenges to the Orthodoxy). The core aspect of the broad alternative perspectives is that firms do seek to damage each other by attempting to take away market shares via price-setting and cost-adjusting processes. This has nothing to do with either “perfect” or “imperfect” markets.

Continue reading

Antitrust and the Informal Sector in South Africa

Dennis Davis, William E. Forbath, Lucie E. White & Julia Dehm –

This is the second post in a two-part series about law and political economy in the South African context. The series reports on a collaboration among leading ‘heterodox’ economists, left-wing sociologists, high level government policymakers, and legal scholars, advocates and activists aimed at “thinking large” about reconstructing the nation’s political economy.

The way out of South Africa’s present crisis lies not only in institutional reform, the topic of the first part of this two-part series, but also in structural and redistributive economic reforms.

Participants in our conversation offered a number of potentially transformative economic proposals, ranging across taxation and public investment, land reform, industrial policy, and sustainable agriculture. Of the various pathways of development we discussed, two seemed especially striking to the participants from the U.S.

Robust Antitrust and Competition Law

The first such  pathway – encouraging small and medium sized firms via competition law – was striking in the way it tracked conversations on the U.S. left today about weaning antitrust from “consumer welfare,” and renewing its original aims by taking on today’s monopolies and oligopolies, with the goals of securing space for competitive, medium-sized firms, and of safeguarding the polity itself, as well as the market, against the oligarchic power of big capital.

Several participants underscored that South African competition law is now primarily focused on redressing abusive or coercive behavior. The focus on behavior, they pointed out, fails to address the ways in which the structure of certain markets and the domination of big, oligopolistic firms can operate to stifle equitable growth, shaping markets, politics and society at large in deeply problematic ways.

Continue reading

Visions of Radical Reform in South Africa: Toward a New Constitutional Economy

Dennis Davis, William E. Forbath, Lucie E. White & Julia Dehm –

This is the first post in a two-part series about law and political economy in the South African context. The second post can be found here. The series reports on a collaboration among leading ‘heterodox’ economists, left-wing sociologists, high level government policymakers, and legal scholars, advocates and activists aimed at “thinking large” about reconstructing the nation’s political economy.

Law and Political Economy is about rekindling radical political economy for the twenty-first century, understanding law’s part in today’s political-economic order and imagining how law may figure in its transformation. While most of the posts on this blog have focused on the domestic U.S. context, law and political economy is a global project. Nowhere is this project more urgent than in South Africa.

It goes without saying that great economic inequality is a longstanding legacy of apartheid.  But Jacob Zuma’s tenure as President has been branded a period of “state capture”; key democratic institutions were hollowed out and repurposed for private enrichment.  So, the present crisis is marked by deepening class antagonism, an ever-growing distrust toward government and political elites, and mounting rage and despair among the poor black majority.  Many distrust the possibilities of democratic politics to make good on the egalitarian promises of the nation’s twenty-one year old Constitution, and the most thoughtful observers of and participants in the nation’s public life doubt that its democratic institutions can endure without radical reform.  Yet, as Cyril Ramaphosa begins his tenure as President, there are some glimmers of hope.

Last May, the four of us invited a group of South Africa’s leading “heterodox” economists, left-wing sociologists and high-level government policymakers, together with prominent social and economic rights advocates, legal scholars and community activists to begin a collaboration in “thinking large” about reconstructing the nation’s political economy.

In this first part of a two-part series, we will briefly sketch the thinking that prompted this effort, and a few initial ideas for institutional reform that have begun to emerge from it. In the second part of this series, we will outline some of visions of redistribution that emerged from our conversation. A longer account of our conversation can be found in a White Paper we prepared for the Open Society Foundation.

Continue reading