The View from Somewhere: on Samuel Moyn’s Not Enough

Julieta Lemaitre 

moyn post

I am a judge; I used to be a law professor in Bogotá, but this past January I became a judge, a judge in a human rights court, a special tribunal created by the 2016 peace agreement to try both the former FARC guerrilla, and the Colombian Army. A transitional justice mechanism, my court is severely embattled and might not survive the attacks of the incoming president, whose party actively rejected the peace agreement, and campaigned for the triumphant “no” in the 2016 referendum.

One of the most vicious, and personal, attacks led by the new president’s party is on the impartiality of the judges elected to my court. For his party, located firmly in the extreme right, we are communists, or at best subversive guerrilla sympathizers. The evidence is clear in their eyes, and in the eyes of many Colombians: many of my colleagues have long records as human rights defenders, and some have taken on the Army in courts, litigating against the many abuses committed during a very long anti-communist struggle. The stigma associated with human rights litigation is so pervasive that Congress in 2017 approved a law that barred human rights litigators from belonging to this court. This provision is under constitutional review, with the Constitutional Court still undecided on whether or not it violates the basic right to equality.

The association between the defense of human rights and the left, including and perhaps especially the guerrillas, is firmly rooted in Colombia’s recent history. Our contemporary human rights movement emerged from the various committees and lawyer’s collectives that fought first martial then civil courts trying political prisoners. They were often targeted along with their clients, and famously Eduardo Umaña Luna proclaimed it was better to die for something than to live for nothing, and was shot one day working on the same desk where he crafted his clients’ defense. He was replaced by another, and then another, generation of young lawyers equally committed to justice, a justice that was often also defined as social justice. Alternative uses of law, proclaimed agitators across the continent during the eighties, allowed for the use of new and old constitutions not just to face armies and governments but also to do so in the name of what the Catholic Church called the “preferential option for the poor.”

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The Political Economy of Freedom of Speech in the Second Gilded Age.

Jack Balkin — 

We are now well into America’s Second Gilded Age. The First Gilded Age was the era of industrial capitalism that begins in the 1870s and 1880s and continued through the first years of the 20th century, ultimately giving way to the reforms of the Progressive Era. The First Gilded Age produced huge fortunes, political corruption and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy.

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The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the mid-1980s, but it really takes off in the early years of the Internet Age in the mid to late 1990s, and it continues to the present day characterized by the rise of social media, and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society.

If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy.  Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.

There is a large literature criticizing the judicial doctrines of the First Amendment, and how they are slanted toward the interests of corporations (and capital generally) in the Second Gilded Age. The most obvious examples are the federal courts’ recent decisions on commercial speech and campaign finance regulation. These are interesting and important topics, but they are not the subject of this blog post.

My focus here is on the political economy of free speech in the digital age.  The basic question is this: How does our political and economic system pay for a digital public sphere? It pays for it largely through digital surveillance and through finding ever new ways to make money out of personal data.  Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unbounded freedom to speak in exchange for the right to surveil, govern,  and manipulate end-users.

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Purdy on Economic Power in NYT and TNR

Jedediah Purdy —

This week, I published two pieces about economic power. One, an op-ed in the New York Times, distilled some major themes from the Supreme Court’s neoliberal jurisprudence: allowing private power to colonize public law (arbitration), using constitutional rights to protect economic power (First Amendment restrictions on union dues and campaign finance), and deploying federalism doctrine to block national programs of social provision (the Medicaid expansion decision). I argue basic LPE themes: public and private power are inseparable, law stitches them together, and we need to protect and reclaim a way of integrating them that empowers democracy to constrain capitalism. Today the Supreme Court is taking aggressive, creative steps to make this harder. In fact, this has been a major theme of the Roberts Court.
The other piece is a review of three new books on class. There’s a lot of twist, turn, and texture. I celebrate that they try (two of them especially, in very different ways) to describe the experience of class in a new landscape of global commodity chains, rural depopulation, and the fracking boom. I especially admire Eliza Griswold’s description of class–in which she doesn’t use the word–as a web of social and environmental vulnerabilities, ways the world is indifferent and dangerous to you. At the same time, I suggest we might also need to think about class from a different perspective: that of the bosses and owners. Their class consciousness is often arrestingly lucid, and in many ways they are the ones who make the world. And, with the next confirmation, the Roberts Court looks likely to defend the economic power of bosses and owners even more vigorously in its ongoing transformation of American law.