Racism is at the Heart of the Platform Economy

Daria Roithmayr –

 

This post argues that race and racism are segmenting the new “on demand” labor markets, in ways that facilitate the transition to this new sector of the economy.  Scholars of racial capitalism have argued that modern capitalism could never have gotten off the ground without the violence of slave labor in the cotton economy. Violent racism operated to segment plantation workers into free and unfree labor, and unfree labor made cultivating cotton in bulk possible, facilitating the transition to industrialized cotton production and then to industrialization more generally.

Likewise, I argue here that race and racism are segmenting the new labor markets into more free and less free labor, and that this segmentation plays a central role in the transition to the new economy.  Platform-based “on demand” service firms like Amazon and Instacart rely for their flexibility on a core of so-called “motivated” gig workers—workers whose economic survival depend on gig work. As it turns out, these workers are “motivated” because they are workers of color who are less free to turn down unstable work, or to bargain for a wage premium for doing risky, back-breaking or otherwise odious work. As we’ll see, race does very important work in constituting this segment of the workforce, and in keeping this core of workers “motivated.”

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Job Announcement: Executive Director of the Law and Political Economy Project

We are thrilled to announce our search for the inaugural Executive Director of the Law and Political Economy Project. Details below, and please share widely. Download the announcement here. We also welcome applications for the part-time blog editor position, posted here.

The Law and Political Economy (LPE) project at Yale Law School seeks a full-time Executive Director (ED). The ideal ED will play both a scholarly and organizational role.

The LPE project is a network of scholars, practitioners, and students working to develop innovative methods at the intersections of legal, political, and economic ordering, with special attention to democracy, economic inequality and power, and racialized and gendered inequality. We seek to make our work relevant to judging, advocacy, policy, and politics as well as scholarship more traditionally understood, and see our initiative as, in part, a response to the fraught political moment and an attempt to understand and address the longer-running problems that have contributed to it. This grant-funded initiative is housed at Yale Law School, and will coordinate closely with other key hubs of legal scholarship and advocacy, including Columbia Law School, Demos, and others.

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Anti-State Statism and Slumlord Capitalism

John Whitlow –

Ruth Wilson Gilmore has written that “we are faced with the ascendance of anti-state state actors: people and parties who gain state power by denouncing state power.” This tendency surfaced in the wake of the economic and legitimacy crisis of liberal capitalism in the 1970s, and has gained strength in the decades since, taking hold in both major political parties and surviving a catastrophic financial collapse a decade ago. The Trump administration is the most garish and contradictory iteration yet of this tendency: [1] an agglomeration of race-baiting grifter capitalists intent on slashing the last vestiges of the safety net while at the same time expanding the carceral and militarized functions of the state. I have argued elsewhere that it is useful to view the current administration as the federal-executive embodiment of the unscrupulous landlord. In this post, I will examine the administration’s particular brand of anti-state statism through the prism of the Trump family’s real estate practices.

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Toward a Law and Political Economy of Gender Violence

Martha T. McCluskey –

What does political economy have to do with the issue of gender violence that roiled Kavanaugh’s Supreme Court confirmation?  One answer is that law should not separate economics from the social inequalities that mediate power.  Violent enforcement of social hierarchies has long been a core capitalist strategy for securing selective economic advantage, as Angela Harris and Frank Pasquale have written in this blog.

The recent #Metoo movement suggests the strong arm and insidious shadow of physical force is common, not marginal, to the everyday economic lives of many women, a factor to bargain with in the process of securing opportunities for education or work, housing or health care.  Conventional law and economics tends to assume a background of private voluntary exchange that belies continuing contests over the power to gain through violence. In contrast, a political economy perspective recognizes that government does not monopolize force. Instead, government enables and distributes private force by how law defines, punishes, monetizes, and immunizes private acts of violence.  Neither formal law nor social norms have firmly settled the questions of what forcible acts and impacts count as normal, excusable, trivial, implausible, or invisible.

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A Torts Course for the Actually Existing World

John Fabian Witt –

The torts classroom is like a dystopian historical fantasy.

Or maybe a kind of morbid historical science fiction. Students and teachers gather to rehearse time-honored rituals around the Great Cases of human tragedy: Scott v. Shephard, Brown v. Kendall, Rylands v. Fletcher, Vosburg v. Putney, Leroy Fibre v. Chicago, Milwaukee, & St. Paul Railway, MacPherson v. Buick, Murphy v. Steeplechase Amusement Co., Palsgraf v. Long Island Railroad, and more. The cases tend to be old. They tend to involve railroads. We conjure up a bygone world on the rails or at old-school amusement parks, in coal mines or at small-town markets. We conjure a world of judges, juries and appellate opinions, too. But in the actual world outside the torts classroom, railroads have been in decline for a half-century and more. Amusement parks, too, though that’s a story for a different day. More importantly here: so have judges, juries, and appellate opinions. The spread of waivers, the rise of arbitration, the disappearance of the trial, and the prevalence of settlement have made the Great Cases almost literally things of the past.

What would it mean to bring the torts class into the twenty-first-century and connect it to actually existing problems?

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American Tort Law Tells Us How It Really Feels About Law and Economics

Anita Bernstein —

Funny thing about the intersection of tort and law and economics. For decades this school of thought has been ascendant in scholarship and intellectual understandings of this field, as it has throughout private law generally. No one can teach or write competently about torts without giving thought to law and economics fundamentals like cost-benefit analysis, cost as a social problem, the cheapest cost avoider, default rules, incentives, and wealth maximization.  On the one hand.

On the other hand, American tort law as practiced will stick a thumb in the eye of law and economics. Rather than defer to familiar microeconomics tenets taught in classrooms and quoted for truth in law reviews, it often refuses to learn the curriculum, disrupts order, and even refutes a few basics by not cooperating with their premises. It is worth cataloguing a few examples of these resistances:

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Job Announcement: Half-time Blog Editor and Coordinator

Good news, LPE readers:  We are looking for a part-time blog coordinator, to help us continue and expand the work of the blog.  Details below, and please share widely. Download the announcement here.

A grant-funded initiative housed at Yale Law School and affiliated with Demos and Columbia Law School (and others to come) seeks a half-time blog editor and coordinator, for the recently launched “Law and Political Economy” blog (lpeblog.org).  The blog is the first initiative of a growing Law and Political Economy project, and is substantively edited and managed by a consortium of faculty and students. The site hosts commentary, analysis, and dialogues on law, politics, and economics with a progressive and egalitarian orientation. The blog editor will be responsible for all administrative matters including: generating (in collaboration with the substantive editors) and maintaining a schedule of publication, communicating with contributors about all scheduling and administrative matters, copy-editing content, and routing unsolicited and proposed posts from readers to the substantive editors. The blog editor will also do basic trouble-shooting and maintenance on the site and show initiative and creativity in promoting the content through social and traditional media. We particularly welcome applicants with interest and training in our topics who may be able to assume certain more substantive editorial roles, as well as help guide authors on writing in this format, and extending their ideas in other media (both traditional or “new” / “social”).

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Torts: A Law and Political Economy CounterSyllabus

This syllabus is, in conjunction with the framing post on the Law & Political Economy Blog, a starting point for understanding the law and political economy approach to torts. The initial readings introduce both the law and economics perspective and the competing law and political economy perspective on tort. Subsequent portions of the syllabus use existing literature to apply the law and political economy perspective to concepts featured in tort classes, such as injury, proximate cause, and negligence. Given the newness of the law and political economy perspective, this syllabus is a work-in-progress: email any suggested readings to Conor Dwyer Reynolds at conor.reynolds@yale.edu. Download the full syllabus here.

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Rules of Power & Wrongs: A Law & Political Economy Approach to Tort Law

Conor Dwyer Reynolds —

The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”

That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.

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“Hey Google, What’s a Strike?”

Brishen Rogers —

What's a Strike

Yesterday morning, tens of thousands Google employees walked off the job in Dublin, London, Singapore, Zurich, Haifa, Berlin, New York, Ann Arbor, and many other cities. The immediate spark for the protests was revelations that the company had given generous exit packages to a few executives credibly accused of sexual misconduct, including one accused of “coercing [a subordinate] into performing oral sex” in 2013. But the workers also have broader, more longstanding grievances with the company’s leadership regarding gender equality: as the Times reported, “tensions over the treatment of women in the workplace have simmered for years…with disrespectful remarks coming from executives and the rank and file alike.” Plus, many Google employees have balked at the company’s participation in Department of Defense projects and its development of a censored search engine for the Chinese market. Given this widespread discontent, support for a walkout went viral: organizers said a few days ago that they expected around a thousand workers to participate, but instead it now appears that tens of thousands did so.

What to make of all this? At first glance, it may seem sui generis—a sudden expression of outrage by workers who feel Google hasn’t lived up to its own values, particularly in the era of Me Too. But I think it is more than that: yesterday, Google went on strike. The walkout resembles other recent strikes in non-unionized workplaces, including the recent “Red for Ed” teachers’ strikes and the “Fight for $15.” In that regard, it highlights both strengths and weaknesses of U.S. labor law, and suggests broader lessons for students of law and political economy.

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