Where Is Race in Law and Political Economy?

Angela Harris

In their first post on this blog, Amy, David, and Jed assert that “politics and the economy cannot be separated.” Nevertheless, as they also observe, the separation of the two – as, for example, in the idea that economic activity is determined by laws of supply and demand that lie outside the power of governments to influence, other than through misguided “intervention” – continues to influence law and policy. A similar separation runs through scholarship in several disciplines, including law, between the study of economics and the study of race. As the new field of “law and political economy” grows, one of its tasks must be to trouble this separation as well.

We know the separation most familiarly as the “race or class?” question (note the either/or framing). In the affirmative action debate, it manifests as this: Isn’t a poor white kid from Appalachia more deserving of the last spot in a freshman class than a black doctor’s kid? In academic discussions, here’s how it typically goes: All this stuff about race, or more broadly, all of this “identity politics,” is a distraction from the deeper and more fundamental realities of wealth and poverty, production and exchange. Sometimes race distracts because it is considered to be a matter of “culture,” which is “epiphenomenal” to material relations: It’s about exploitation, stupid! Other times, race is considered a distraction for pragmatic reasons, because its appearance is “divisive,” threatening the solidarity of labor, or the electorate, or progressive communities, or women. At still other times, especially within academia, the separation of race from economics looks something like a polite form of intellectual self-segregation: while all the black kids are sitting in the cafeteria together talking about critical race theory, the law and economics kids are at their own table, drawing supply and demand curves and talking about Pareto optimality. To each their own, and everybody’s happy.

But this story of race and racism as either irrelevant to or reducible to the story of production, exchange, and consumption is wrong. Black studies scholars have been saying so for quite some time. In 1935, W.E.B. Du Bois argued that what turned the tide of the Civil War was a mass withdrawal of slave labor, amounting to a “general strike.” In his view, the North’s victory was neither a race story nor a labor story, but a powerful demonstration of how the two were intertwined. Generations later, Cedric Robinson’s Black Marxism provided a similar attempt to take race seriously within a materialist frame, arguing that the Eurocentric origins of Marxist theory left it unable to adequately account for black history.

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Understanding Environmental Law as Public Provision

Jedediah Purdy –

A law-and-political-economy (LPE) approach illuminates environmental law in a few ways. It highlights that environmental law is a prime example of the ways law is generative, even in areas where it is imagined as reactive, and how it channels and responds to contested values even where it is imagined as technocratic. Law does not so much administer “the natural world” as it helps to create it by shaping regions, ecosystems, and the planet – a creative action that overlaps and interpenetrates with law’s shaping of the social world, from cities and suburbs to the agricultural economy to energy and transport systems.carson-book

Environmental law’s creative role, in turn, responds to deep-seated conflicts among visions of the world and the human place in it, and to powerful concentrations of economic interests, including big agriculture, fossil fuels, and the auto industry. The environment – woven out of natural and artificial elements – distributes profoundly unequal benefits, powers, and vulnerability, and does so in ways that are often only halfway visible because they are easy to naturalize as the given shape of the world.

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The Epicycles of Health Care Market Design: Time for a Paradigm Shift in Health Policy

Frank Pasquale – 

Back in June, I attended the annual conference of health law professors held by the ASLME. This conference is a real intellectual feast for anyone interested in political economy. National experts describe the latest developments in the Affordable Care Act’s exchange marketplaces. Antitrust scholars consider the proper balance between delivery system integration and competition in accountable care organizations. The role of the state in structuring economic activity is critical to nearly every panel on insurance markets, licensure, and access to care.

SinglePayerNow

But there was very little buzz about what has become one of the hottest topics in progressive health policy in 2017: state efforts to develop single-payer health care systems or public options (like a Medicaid buy-in). Politicians and activists appear to be leading this charge, pushing proposals in California, Nevada, and New York. They have generated a lot of enthusiasm, and they will get more attention if the GOP manages to repeal the individual mandate and further damage insurance markets. Even self-described neoliberal Matt Yglesias has called on experts to further develop ideas here. And yet the academy seems slow off the mark. What explains this tardiness?

I think part of the problem is the sheer complexity—and thus intellectual challenge—of market design in a neoliberal era. Sarah Kliff recently eulogized the great health care economist Uwe Reinhardt by memorializing the “joy he always took in trying to understand the maddening, baffling inner-workings of the American health care system.” “Joy” seems like an odd emotion to express, upon encountering the complexities of ERISA, MedPAC, MACRA, MIPS, and the rest of the health care finance alphabet soup. But once you teach in these areas, the incrementalism of the well-informed is hard to shake. Continue reading

State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading

Your Money or Your Life?

Amy Kapczynski – 

High drug prices are a major problem in the United States. In the Washington Post today, Aaron Kesselheim and I have an op-ed about what President Trump could do – immediately – to lower drug prices, if he had any intention of following through on all of those campaign promises and tweets. 649816939_1280x720(We also explain why his nomination of Alex Azar to head HHS is a clear sign that he will do none of this.)

Here I wanted to say more about the stakes of the drug pricing problem, and about one option we describe – a little known patent “eminent domain” power that could be a powerful tool to lower drug prices.

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How the Tax Bills Target Good Government, Workers, and Young People

Anne Alstott –

If the details of the House and Senate tax bills under consideration in Washington make your eyes glaze over, it’s because they’re supposed to.  The tax-writers, as they often do, are using the technicalities of the tax law to mask major changes in national economic policy.  It’s fairly well-known that both bills are stacked in favor of the wealthy.  But the details of the tax bills (please don’t call them “tax reform”) contain a neoliberal agenda that, if enacted, will punish good governance, reward capital over labor, and favor the old over the young.

The United States, perhaps more than any other developed country, shapes its economy via the tax law.  Neoliberals often say that the United States – unlike socialist Europe – has no government-sponsored industrial policy. And it is true that (for the most part) we don’t have big spending programs that subsidize business or  have big bureaucracies that manage the economy. Instead, our politicians hide economic and social policy in the tax code and leave administration to the IRS. In 2015, for instance, the United States devoted $1.2 trillion to tax-based subsidies – an amount that exceeded federal discretionary spending in that year.

Paul Ryan

So, even as politicians rail publicly against tax loopholes, both parties use the tax code to reward favored industries and citizens. The current tax code, for instance, favors owners of capital, wealthy dynasties, highly-paid workers, and industries including tech and pharmaceuticals as well as finance, insurance, and real estate.

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Autocracy at Work: Understanding the Gothamist Shut Down

Sharon Block and Benjamin Sachs – 

Last week, billionaire Joe Ricketts abruptly shut down the local news websites Gothamist and DNAinfo.  The closure came a week after the sites’ newsroom employees voted to join Writers Guild East, a union that is the collective bargaining representative for reporters and editorial staff in a rapidly growing number of progressive, on-line media outlets.  Hamilton Nolan, a senior writer for Splinter and a lead organizer for the Writers Guild, made a compelling case in a New York Times op-ed that Ricketts did not shutter the company because of what the union would mean for the sites’ economic prospects. After all, the union hadn’t yet made a single demand. Instead, in Nolan’s words, Ricketts destroyed the company “out of spite.”

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But why do unions infuriate people like Joe Ricketts? Why would Ricketts prefer having no business at all than a unionized business? The answer, we think, is suggested by something Ricketts said during the union’s organizing drive: “As long as it’s my money that’s paying for everything, I intend to be the one making the decisions about the direction of the business.” In other words, Ricketts expects that his financial power buys him the right not just to own a business, but to control his business’ workforce unburdened by the voices and views of that workforce

Unionization is, and always has been, the most effective way that working people can wrest a bit of control back from owners like Ricketts. It operates through the simple logic of collective action: by bargaining together, people increase their leverage and gain a voice in shaping what their work lives are like. Unions move workplaces away from institutions governed autocratically – by those with the ‘money that pays for everything’ – and toward institutions that are governed democratically, by including the insights and opinions of those who do the work. Continue reading

Law, Political Economy, and the Legal Realist Tradition Revisited

K. Sabeel Rahman — 

As David, Amy, and Jed note in their opening post, the economic, social, political, and ecological crises of the current moment are helping fuel an exciting wave of legal scholarship. This emerging trend, the “law and political economy” (LPE) approach, interrogates the relationships between law, politics, and economics, exploring issues of power, inequality, democracy, and social change. As we explore what this approach might mean and what its implications might be, it is important to situate these inquiries in a larger history of legal scholarship and reform politics. This is not the first time that a similar moment of crisis has helped spur creative new thinking about the relationships between law, capitalism, and democracy—and it won’t be the last. In this post, I want to sketch a particular aspect of this trajectory: the long legacy of legal realism and its relationship to our current debates around law and political economy.

This legacy is important for two reasons. First, now, as then, we face a similar period of socioeconomic upheaval and political conflict, prompting us to rethink our legal structures. As a result, the substantive insights of legal realism remain valuable for an LPE approach today. Second, recalling the trajectory of legal realism and its successor intellectual movements is helpful in highlighting the kinds of tensions and questions that an LPE approach will have to continue to address.

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Entrepreneurship Can Be Unproductive or Destructive

Frank Pasquale –

rifles-to-be-burned-in-kenya-2016

Entrepreneurship in the international arms trade leaves everyone (except the entrepreneur) worse off.

In contemporary American law, few figures are as lionized as the “entrepreneur.” Lobbyists evoke entrepreneurship as a cornucopia of better goods and services at lower prices. Even ostensibly academic business law courses tend to offer a narrative of wise incremental development of legal doctrine toward enabling disruption, easy entry into markets, and ultra-flexible corporate forms. The lawyer is ideally, in this view, a fixer capable of profit-maximizing distributions of responsibility and liability. Some even dream of automating this role via smart contracts, to ensure even more rapid entrepreneurial activity.

Professional Responsibility courses also tend to adopt a similarly reverential attitude toward the business client, instilling an ethic of “zealous advocacy” in generations of students. Few question whether the near-evacuation of ethical self-reflection from advocacy roles systematically advantages dubious (or worse) business propositions.

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Thinking Intersectionally About Race and Class in the Trump Era

Trump_victory_speech

Noah Zatz –

More than a year after the 2016 election, progressive analysis and strategy continue to be limited by the ping and pong of class-not-race and race-not-class accounts, and recriminations they provoke. Understanding what happened and charting a way forward require an alternative, a thoroughly intersectional analysis of race and class. On such a view, taking race seriously is necessary to understand how class works, not to diminish its importance.

“Intersectionality” risks depletion with its rise as a buzzword, but I mean to invoke specific insights animating the pathbreaking work of Kimberlé Crenshaw and other feminist scholars of color. In particular, they argued that understanding race and racial oppression requires an analysis of how race is gendered and gender is racialized. As Sarah Haley argues in a recent tour de force in this tradition, “gender is constructed by and through race.” So, too, we cannot understand and respond to the racism on display in the 2016 election and since without understanding its intersection with class, and how class is constructed by and through race.

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