Gender Equality as Social Reproduction Infrastructure

Julie Suk —

On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy, such as the status of post-deadline ratifications and attempted rescissions, the constitutionality of ratification deadlines for amendments, and the validity of legislation eliminating the deadline. But it is equally important to contemplate how the ERA could change the political economy of gender inequality. It can be more than a symbol that locks in the sex discrimination law we already have. We can take some inspiration from feminist constitutionalism around the world to imagine a twenty-first century ERA that catalyzes new gender-equal infrastructures, particularly for biological and social reproduction, compatible with a sustainable and more humane political economy.

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Data Nationalization in the Shadow of Social Credit Systems

Frank Pasquale –

The political economy of digitization is a fraught topic. Scholars and policymakers have disputed the relative merits of centralization and decentralization. Do we want to encourage massive firms to become even bigger, so they can accelerate AI via increasingly comprehensive data collection, analysis, and use? Or do we want to trust-bust the digital economy, encouraging competitors to develop algorithms that can “learn” more from less data? I recently wrote on this tension, exploring the pro’s and con’s of each approach.46038488 - law concept: circuit board with  scales icon, 3d render

However, there are some ways out of the dilemma. Imagine if we could require large firms to license data to potential competitors in both the public and private sectors. That may sound like a privacy nightmare. But anonymization could allay some of these concerns, as it has in the health care context. Moreover, the first areas opened up to such mandated sharing may not even be personal data. Sharing the world’s best mapping data beyond the Googleplex could unleash innovation in logistics, real estate, and transport. Some activists have pushed to characterize Google’s trove of digitized books as an essential facility, which it would be required to license at fair, reasonable, and non-discriminatory (FRAND) rates to other firms aspiring to categorize, sell, and learn from books. Fair use doctrine could provide another approach here, as Amanda Levendowski argues.

In a recent issue of Logic, Ben Tarnoff has gone beyond the essential facilities argument to make a case for nationalization. Tarnoff believes that nationalized data banks would allow companies (and nonprofits) to “continue to extract and refine data—under democratically determined rules—but with the crucial distinction that they are doing so on our behalf, and for our benefit.” He analogizes such data to natural resources, like minerals and oil. Just as the Norwegian sovereign wealth fund and Alaska Permanent Fund socialize the benefits of oil and gas, public ownership and provision of data could promote more equitable sharing of the plenitude that digitization ought to enable.

Many scholars have interrogated the data/oil comparison. They usually focus on the externalities of oil use, such as air and water pollution and climate change. There are also downsides to data’s concentration and subsequent dissemination. Democratic control will not guarantee privacy protections. Even when directly personally identifiable information is removed from databases, anonymization can sometimes be reversed. Both governments and corporations will be tempted to engage in “modulation”—what Cohen describes as a pervasive form of influence on the beliefs and behaviors of citizens. Such modulation is designed to “produce a particular kind of subject[:] tractable, predictable citizen-consumers whose preferred modes of self-determination play out along predictable and profit-generating trajectories.” Tarnoff acknowledges this dark possibility, and I’d like to dig a bit deeper to explore how it could be mitigated.

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Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

K. Sabeel Rahman –

Consider the following developments:

  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.46038488 - law concept: circuit board with  scales icon, 3d render
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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Police Surveillance Machines: A Short History

Elizabeth Joh –

46038488 - law concept: circuit board with  scales icon, 3d render

The year 2015 witnessed a dramatic rise in demands for police surveillance machines. After a number of widely shared incidents of police violence against often unarmed civilians, public protests and media attention led to calls for the adoption of surveillance machines by the police.  Advocates of surveillance machines, including the family of Michael Brown, argued that these technologies would increase transparency and accountability surrounding police interactions with civilians by collecting and preserving data for public review.  Indeed, the most contentious police-civilian interactions often came down to public disputes as to the alleged threat posed by the civilian, versus the propriety of the police response. Surveillance machines promised a technological layer of accountability by rendering these hidden interactions public. Now that they are being implemented, however, the political economy of police technologies raises new concerns about concentrated private power, consumer platform protection, and adequate regulation of data in the future of policing.

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What Comes After Not Enough?

Amy Kapczynski —

What might a new human rights movement look like after Occupy, Brexit, Piketty, and Trump?   Sam Moyn’s new book brings us deftly to the edge of this question, and it’s here that I want to jump in.   Not Enough offers important insights into some of the failures of the existing movement, at least in its mainstream form. Drawing on these, as well as my own experience with the access to medicines movement – a movement that has invoked human rights but never defined itself through that idiom – I’ll offer a few thoughts on the shape of a human rights yet to come.

moyn post

One central aim of Moyn’s new book is to demarcate two kinds of left political thought – one organized around distribution and another organized around sufficiency.   Do we demand equality? Or do we demand enough? The key failure of the human rights movement, he argues, is that it has settled for the latter, and a particularly stingy version at that. As market fundamentalism advanced, human rights spun out a minimalist utopia. Socioeconomic rights took shape as demands to a “core minimum.” The movement demanded a “just enough” that in its very nature could never be enough, nor just.

As Paul O’Connell noted last week, Moyn’s is really only a history of part of the human rights movement. It has never been clear exactly how to define “the movement,” and many local groups make radical and even revolutionary claims under the sign of human rights. Moyn’s framing is not, however, without justification: he trains his attention on the institutions and documents that many people treat as the “core” or most consequential aspect of the movement. Implicitly, this reproduces a status hierarchy that I’ll argue in a minute must be undone if human rights is to be remade. But it also allows Moyn to show why we need a new human rights. The mainstream human rights movement came to prominence by embracing a certain kind of minimalist anti-politics, and trading off the best for the good.

This mainstream paradigm is inadequate to the challenges we face today. Moyn is right: We need a new human rights, one that does more than seek to “avert disaster and abjection.” This new version should embrace the politics of “material equality.” It must also demand deeper political accountabilities, inventing structures to facilitate a “welfare world” rather than accepting the pastiche of participation offered by international institutions to date.

What might a human rights movement look like that was more adequate to the challenges of our time? All of this, I think, and a few things more.

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Technology, Political Economy, and the Role(s) of Law

Julie E. Cohen –

Legal scholars who work on information policy tend to focus on questions about how existing doctrinal and regulatory frameworks should apply to information-era business models and online behavior, perhaps undergoing some changes in coverage or emphasis along the way. They have asked, in other words, how law should respond to the changes occurring all around it. For the most part, they have not asked the broader, reflexive questions about how core legal institutions are already evolving in response to the ongoing transformation in our political economy—questions about how disputes over scalesanddata.jpginformation are reshaping the enterprise of law at the institutional level. That is a mistake. Information-economy actors do not simply act in markets; they also mobilize legal tools and institutions to advance their various goals. Through that process, legal institutions gradually become reoptimized for the new roles they are called upon to play.

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The Political Economy of Immigration Enforcement: Part II

Sameer Ashar and Amna Akbar— 

In our first post, we made the case for studying immigration enforcement through a political economy lens. Without political economy, we are left with an ahistorical and inadequate understanding of the challenges and realities of immigration enforcement, which implicate both state and market, and not just Donald Trump and Barack Obama, but our colonial past as well. In this second post, we elaborate on three central insights of a political economy and racial capitalism lens: the rise of “guard labor” in the neoliberal, austerity state; lopsided bargaining power between workers and their bosses; and the persistently colonial dynamics of labor extraction.

First, immigration enforcement is a key part of the expansion of guard labor in the United States: the sector of the modern U.S. economy devoted to ensuring conformity to public and private institutional imperatives. This includes everything from police and private security to detention facilities, jails, and prisons to parole, probation, and surveillance. Consider how immigrant detention facilities are marketed as economic development projects, especially in areas without other sources of jobs and income. Private prison companies, especially, have used underdevelopment and deindustrialization in parts of the United States to make the case for new facilities. Those companies have also marketed detention facilities as providing much-needed jobs for veterans returning from years of extended American military engagement in Afghanistan and Iraq. Municipal and county governments have provided carceral capacity for immigrant detention, at a cost. Immigrant detention brought federal dollars to localities starved for funds during the extended austerity regime of the Bush and Obama administrations.

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The Political Economy of Immigration Enforcement: Part I

Sameer Ashar and Amna Akbar— 

Liberals and progressives bemoan the problems of immigration enforcement and deportation along the vectors of racialization and criminalization. Their critique goes something like this: the immigration enforcement system is unfair in how it targets Black and Latinx and other immigrants of color, and this targeting has worsened as immigration enforcement has become increasingly entangled with criminal law enforcement. (A related concern has been that “immigrants are not criminals”: but both immigrant rights and racial justice movements have deconstructed and debunked this idea, since the meaning of what it is to be a criminal is just as raced and historically contingent as being an immigrant.) These concerns are played out in a field of celebratory narratives about the United States as a nation of immigrants, erasing the settler colonial routes of the country’s political and economic power.  By failing to consider questions of political economy—specifically how racial capitalism has shaped our present—these critiques lack explanatory power and historical grounding.

In this two-part series, joining colleagues such as Tendayi Achiume, Angélica Cházaro, César Cuauhtémoc García Hernández, and Sherally Munshi, we make the case that political economy and racial capitalism are central to any thoroughgoing understanding of immigration enforcement. We write in opposition to race-neutral law-and-economics descriptions of interior enforcement, such as that of Adam Cox and Eric Posner. Immigration enforcement provides a lens for understanding the global and historical relationships between the state, the market, and workers. Immigration enforcement, after all, emerged as a post-colonial tool in white settler nations like the United States and Canada as a way to limit and exclude the arrival of former colonial subjects. Here, we introduce questions and concerns that come into play when viewing immigration enforcement through a political economy lens.

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Capitalism, Inequality, and Human Rights

 

Symposium on Not Enough: Human Rights in an Unequal World by Samuel Moyn

Paul O’Connell —

moyn postSamuel Moyn’s new book begins, with an echo of Christopher Hill, by noting that history has to be revised and rewritten to meet the demands of the present. From this, Moyn sets out to provide us with a historical account of the relationship between human rights and inequality, in order to shed some light on the major crises and challenges facing the world today (Trump, staggering inequality and more). On this he delivers admirably: Not Enough is a sweeping, erudite account of the place of human rights in debates about equality from the pioneering days of the Jacobin state in revolutionary France, through the mid-twentieth century welfare state, and the grand decolonial visions of the New International Economic Order (NIEO).

While it is impossible to do justice to the breadth and nuance of the work in this brief post, the crux of Moyn’s argument is that when modern notions of human rights, with a particular focus on social rights (or depending on where you are from, socio-economic rights), came centre stage, it was as a poor second prize following the decline and failure of grander narratives of material equality and social justice. For Moyn, human rights emerge and prosper in tandem with the entrenchment of neoliberalism on a global scale, and while the latter has produced dramatic social transformations and spiralling inequality, human rights have remained “powerless companions” to effect any meaningful change in this period. One consequence of this analysis, captured in Moyn’s recent Op-Ed in the New York Times, is that the human rights movement runs the real risk of falling victim to rising populism and dissatisfaction with the status quo, because it has “made itself at home in a plutocratic world”.

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Inequality and Political Economy in Constitutional Doctrine

Kate Andrias –

Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy.  One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on questions of judicial review but on problems of institutional design and constitutional structure.

There is good reason for the non-juridical focus, as I and others have previously argued.  Courts have rarely been leaders of progressive change, especially in the absence of well-organized social movements.  On economic issues in particular, courts have tended to be regressive.  Against this background and given the Court’s current makeup, relying on litigation as the primary method for opposing economic inequality would be a fool’s errand. Moreover, for public law scholars committed to building a more democratic and egalitarian political economy, there are normative reasons to focus beyond courts.  Courts, after all, are not fundamentally democratic or egalitarian institutions.  There is an irony in relying on elite, nondemocratic institutions to achieve a more egalitarian distribution of power and resources.

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