Just Transitions?

Sarah Krakoff –

 

“Either Way the Outlook is Dire, Especially for the Poor.” So concludes a journalist after reviewing a draft report by the International Panel on Climate Change (IPCC) on the environmental justice and human rights consequences of climate change. The 800-plus page report, which is not yet publicly available, details the effects of a 1.5 degree Celsius increase on food systems, water, shelter, infrastructure, and health. Even if countries meet their pledges under the Paris Accords (from which the U.S. withdrew under President Trump) 1.5 degrees of warming by 2030 is locked in. If countries fail to meet their commitments, the world will be well on its way to 2 degrees of warming or more.

 

“The risks to human societies … are higher with 1.5 degrees Celsius of global warming compared to today, and higher still with 2 degrees Celsius global warming compared with 1.5 degrees … These risks are greatest for people facing multiple forms of poverty, inequality and marginalization. —Draft IPCC Report, 2018

On one hand, there is nothing new about this. Environmental harms, and harms of all sorts, have disproportionate impacts on people, communities, and regions with preexisting vulnerabilities. Earthquakes, fires, floods, and drought do not themselves discriminate. But structural wealth insulates people from the ill effects of natural disasters and helps them to recover more quickly. As Mike Davis and John Mcphee have documented, albeit in distinct tones, wealth also constructs the very path of nature’s disasters, steering them away from privilege to the extent possible. Malibu’s ritzy canyon dwellers benefitted from fire suppression, and Pasadena’s craftsmen-style homes from the lassoing of the Los Angeles River, while L.A.’s population as a whole lost public spaces and healthy riparian areas. Climate change has made the unnatural inequalities of natural disasters more visible and acute, but the landscape of injustice preceded sky-rocketing greenhouse gas emissions. Laws, including environmental laws, sometimes shaped that unjust landscape, and at others did little to counter the unequal distribution of environmental and economic benefits.

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The Crisis of Progressive Neoliberalism

Nancy Fraser –

How should we understand the crisis of the current moment? Is the election of President Trump a temporary aberration or does it reflect deeper political trends—both in the United States and elsewhere?

In a recently published essay in American Affairs, I argue that the defining features of Trump’s agenda did not come out of nowhere. What enabled his ascent was first, the rise, and then, the unraveling, of what I call progressive neoliberalism. Progressive neoliberalism tied a finance-centered political economy to a progressive politics of recognition. Grafting neoliberal economics onto mainstream liberal currents of apparently egalitarian social movements, such as feminism, anti-racism, multiculturalism, and LGBTQ rights, it forged a hegemonic bloc that dominated American politics for several decades. Beyond the United States, progressive-neoliberal formations governed many other liberal democracies through center-left parties that made similar deals with bankers and bondholders to gain or maintain power.

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Progressive neoliberalism’s main competitor was what I call reactionary neoliberalism, which tied an exclusionary politics of recognition to the same neoliberal political economy.While reactionary neoliberalism was defeated by progressive neoliberalism, it offered no alternative to the latter’s project of Goldman-Sachsifying the US economy. Absent any organized opposition on a national scale, progressive neoliberals from Bill Clinton to Barack Obama were free to promote policies that metastasized finance and gutted manufacturing.They eviscerated unions and drove down real wages, proliferated precarious service-sector jobs and promoted predatory debt to enable the purchase of cheap stuff produced elsewhere. The result was to dramatically worsen the life conditions of the bottom two-thirds of Americans, especially (but not only) in rustbelt, southern, and rural communities, even as soaring stock markets fattened not just the one percent but also the upper reaches of the professional-managerial class. In due course, many harmed by these policies came to reject not only neoliberal political economy, but also the more inclusive view of recognition they associated with it.

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The Movement for Black Lives Offers an Abolitionist Approach to Police Reform

Amna Akbar – 

For several years, I have been thinking about the rise of racial justice movements that account for political economy—specifically, those with anti-capitalist commitments. I am thinking of the Movement for Black Lives, and aspects of the immigrant justice movement. These social movements mark the revival of anti-capitalist racial justice politics in the United States in a way that we have not seen since the civil rights, Black power, and Chicano movements of the 1960s and 1970s. As these movements continue to organize in the face of growing global inequality and right-wing populism, they offer another way forward.Black_Lives_Matter_logo.svg.png

To illustrate the creative potential of studying radical social movements, consider the question of policing. The Movement for Black Lives is the leading example of a contemporary racial justice movement with an analysis of political economy and a vision to transform the state. In my forthcoming article, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. (forthcoming 2018), I consider policing through the lens of the Movement for Black Lives policy platform, “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice.”

I compare the Movement’s analysis with the Department of Justice’s (DOJ) Ferguson and Baltimore reports. The Vision and DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. The comparison offers a study in the difference between an abolitionist approach to police reform, and a more traditional one.

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California Bans the Box, Twice

Noah Zatz – 

A core LPE theme is the construction of markets through political choices institutionalized in law. Those choices create an economy structured by whatever matters politically, including race. My Bailey series has been developing this theme in connection to the criminal regulation of work, in particular the use of criminal punishment to compel work. The more familiar racialized criminal justice/labor interaction concerns how the state marks individuals with criminal records, which employers then use to deny work.

Over at OnLabor, I’ve got two new posts up on some of the more technical aspects of using employment discrimination law to counter criminal records exclusions. The first one flags a familiar rules vs. standards problem in deciding when criminal record screening is permissible. The second one explores what kinds of evidence appropriately demonstrate the disparate racial impact of criminal record exclusions. In both cases, my jumping off point is innovative new regulations issued under California’s state employment discrimination law.

At some point I will share some thoughts on how these coercive and exclusionary dynamics work together.

Reconstructing the Administrative State

Blake Emerson –

In the early weeks of the Trump presidency, Steve Bannon declared that one of its principal tasks would be the “deconstruction of the administrative state.” Though Bannon has since left the White House, this project has so far proved one of its most enduring preoccupations. Administrative bodies such as the Environmental Protection Agency, Departments of Health and Human Services, Justice, and Education, and Federal Communications Commission have reversed course on key progressive initiatives such as reductions in carbon emissions, healthcare insurance enrollment, police reform, redress of campus sexual harassment and assault, and net neutrality.

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The tenured civil service is being sidelined, or even targeted by opposition research firms hired by their own departments. The recently enacted tax bill promises to starve the government of the resources to sustain the remaining pillars of the welfare state, namely Medicare, Medicaid and Social Security. And the appointment of Justice Gorsuch to the Supreme Court casts doubt on the future of a core principle of administrative law—that courts should defer to agencies’ reasonable interpretations of statutory ambiguities.

This effort to rein-in the regulatory state has been at the center of the conservative agenda since the 1930s, and ascendant since Reagan. It overlaps with a broader neoliberal policy framework that many centrist Democrats share, which remains skeptical of the public provision of goods and services, and “command-and-control” regulation. Bill Clinton’s bipartisan mantra that “the era of big government is over” has steadily eroded regulatory and welfare institutions, and fulfilled its own prophecy that bureaucrats are incapable of promoting the public good.

As we near the pinnacle of this era of governance, Bannon’s declaration throws into relief a constituent feature of any viable counter-movement. If we are to develop a political program capable of rescuing the American polity from private domination, economic inequality, and caste hierarchy, we must think through what kind of administrative apparatus could carry that program into action. One that sees its role primarily as correcting market failures, “nudging” individuals to make decisions the expert deems wise, and maximizing aggregate social welfare, is likely to simply reproduce the logic of private enterprise within government.

The hegemonic framework for policy reasoning today—cost-benefit analysis—attempts to approximate market pricing where it does not exist, asking, for example, how much people are “willing to pay” to avoid certain kinds of harms. Such methods can be useful in ensuring that decision-makers fully take into account the economic effects of proposed courses of action. But they instill a regulatory ideology where the model of formally free, reciprocal, and competitive exchange predominates over the practice of joint action motivated by a common aim. We come to approach even political rights and obligations as priced commodities rather than as products of either reasoned agreement or social struggle. Instead of a cost-benefit state, we need a state that simulates an egalitarian society and stimulates a democratic politics.

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Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

Noah Zatz –

vote communist

“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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Whatever Happened to “Just Prices?”

Robert Hockett – 

Are prices the sort of thing that can be fair or unfair? It seems to be common to assume so. Health care is said to cost too much, unhealthy foodstuffs to cost too little. Air and water, we say, should be free. Maybe college and health insurance should be as well?

Yet while we frequently hear and say such things in informal settings, many in more ‘serious’ company appear to concede that prices can no more be fair or unfair than the number seven can be yellow or green. There are only individual preferences – my wish to pay less, your willingness to pay more – and market prices that all of us ‘take’ and don’t ‘make.’ In this foundationally critical matter, so closely bound up with the way we meet needs in a market economy, it seems we are most (if not all) of us neoclassical economists now.

But do we really have to give up the idea of fair prices? In a forthcoming paper, Roy Kreitner and I say, Not so fast. We interrogate and rehabilitate the idea of fair prices in part through a critical look at its recent history, and in part through a look at the ways in which prices are actually determined in contemporary economies. We abjure, however, any attempt to link this inquiry with ‘just price’ theory of the sort that flourished, in a number of forms, before the so-called ‘marginalist revolution’ of the late 19th century – the revolution that purported to slay what we used to call ‘political economy’ and birthed ‘economics.’

In this post I aim to fill-in that gulf and trace some connecting lines. For it turns out that our attempt at a ‘just price’ revival has a venerable and unjustly forgotten pedigree in hardcore just price theory of the pre-marginalist variety.

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No Democracy

David Singh Grewal and Jedediah Purdy – 

What would it mean to make economic and political life more democratic? One way toward an answer is by getting more precise about how they are now undemocratic. Avoidance of democracy runs very deep in American law, and perhaps in the modern legal and political order generally. This is so despite the fact that constitutionalism and other forms of legal and political order all rest on claims to democratic legitimacy.

“Democracy” retains the core sense of its Greek root: “the people rule.”  That is, in a democracy it must be true in some real sense that people have authorized the rules, institutions, and multifarious exercises of power that they must live with, and which deeply shape their lives. What would it mean to “reinvent” democracy today—and what would the legal structure for such a democracy look like? In an essay forthcoming in the Yale Law Journal, we explore the answers to this question suggested by a recently published book, The Sleeping Sovereign, by Richard Tuck.

Tuck’s book sheds new light on the relationship between popular sovereignty and constitutional government. He argues that the modern constitution is a unique contribution to the practice of democracy, not because it constrains majorities – the usual picture – but rather because it enables them to act. Contrary to the popular myth that European monarchies exercised the “divine right of kings,” most medieval and early-modern rulers claimed some kind of authorization from “the people” – rooted in history, ongoing consultation among elites who claimed to speak for popular interests, and devotion to the well-being of the land. More or less everyone agreed, though, that it was impossible for large populations to rule themselves collectively in any ongoing way: what the citizens of small city-states of the ancient world had done, especially in Athens, was out of reach in a territory as vast as France or England.

Tuck traces a line of thought that began with sixteenth-century French jurist Jean Bodin and received crucial later formulations from Thomas Hobbes and Jean-Jacques Rousseau – and, more to the point, was understood in practice by the late eighteenth century to be a way of recapturing democratic self-rule in large, complex countries. The heart of the idea was to distinguish everyday rule, which thinkers in this line called “government,” from the decisions that established and authorized the basic form and terms of political control, which they called “sovereignty.” If a people authorized its form of government, its sovereignty was democratic, even if everyday business was carried out by other means – courts, ministers, etc. The great innovation that made this idea real was the written constitution, authorized by direct majority vote (or, less ideally, some other popular procedure such as elected conventions). A constitution contained the decisions of a democratic (i.e., “popular”) sovereign, granting power to the government it created while also shaping and constraining that government.

So far so good: It sounds like the U.S. Constitution, more or less (if you can stomach, for the moment, overlooking how limited the franchise was in most states). But pretty much everyone in this tradition agreed, for very powerful reasons, that sovereignty was democratic only if a people could regularly revisit its fundamental law, either to reauthorize it or to change it. Only if constitutional amendment was a real, live option would it make sense to say that the living had authorized the constitutional regime they were born into, rather than simply inheriting it. In other words, the original conception of constitutional self-rule incorporated both the basic commitment of today’s “originalism” (the democratic authorship of the constitution in the first instance) and the basic commitment of today’s “living constitutionalism” (the regular updating of constitutional authorization, by reaffirmation or change). Popular sovereignty was meaningful only if it included both, and to achieve that a people had to adopt a constitution with a viable procedure for ongoing amendment. Continue reading

The New Majority: Uniting the Old and New Working Class

Daria Roithmayr – 

This post picks up where Angela Harris and Noah Zatz left off in the conversation about race and class. The arguments in this post preview arguments I will be making in a new book, entitled “The New Majority.” It will surprise no one that I decided to write the book in November of 2016.

So here’s the central argument. To end inequality, and to defuse white working class backlash, progressives should work to unite both the old and new working class on issues that those two groups share—like the concentration of power at the top, economic precarity in the middle and bottom, access to health care, job growth, wages and quality, freedom from violence and addiction, and reducing exploitation. To name just a few.

If there is a silver lining to the 2016 election and the trail of destruction that has followed, it is this: in the midst of the chaos, progressives have begun a serious conversation about inequality, and about race and class. To be sure, the conversation doesn’t look all that illuminating at the moment. On one side, people like Mark Lilla and others on the economic left (or left of center, or okay, center) make totalizing claims that locate class as the centerpiece in the conversation about inequality. They argue that Democrats have failed to address the concerns of the white working class. They claim, for example, that the experience of plant closings in key districts, explains why many people in battle ground states voted for the GOP. Some in this group argue that progressives ought to jettison “identity politics” in favor of some more universalist principles of fairness or economic justice.

On the other side, Ta-Nehisi Coates and others on the cultural/material left make totalizing claims that race and racism are what stands in the way of true equality. This group argues that anti-black racism and anti-immigrant resentment drove last November’s results—after all, poor and working class voted disproportionately for Clinton, and voters who expressed fear of people of color were far more likely to have voted for Trump, even when they had voted for Obama or for Democrats in years past.

In addition to making totalizing claims, both sides appear to accept the common wisdom that long-standing racial divisions make a unified working class impossible. I want to challenge all of that. More specifically, I want to argue for the possibility of uniting the old and new working class around progressive commitments to things like shared prosperity and the end of precarity, access to health care, an end to violence and a lower cost of debt. This doesn’t mean that I side with the class folks—far from it. Or with race folks. It’s more accurate to say that I side with both. To unite the old and new working class, we must understand the way in which race and class interact, for a particular group of people at a particular historical moment in time. Continue reading