Envisioning Worker Voice in the Private Government(s) of the Twenty-First Century

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Amanda Jaret –

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For those of us who are interested in law and political economy, seeing a political philosopher of Elizabeth Anderson’s stature dedicate her Tanner Lectures to labor issues is deeply gratifying. In the lectures, Anderson forcefully argues that the state plays a constitutive role in shaping the “private government” of the workplace by establishing rules that preserve space for employers’ exercise of “private, arbitrary, unaccountable” power over workers. As a participant in the “marginalized academic subfields” of labor law and labor history—which Anderson notes are among the only disciplines which consistently raise questions about the normative implications of power disparities in the workplace—I think she is to be commended for addressing the curious invisibility of employers’ regulatory authority over workers’ lives and its broader implications for those who share Anderson’s egalitarian commitments. Nevertheless, I worry that Anderson’s analysis ultimately misses the mark, because it pays insufficient heed to structural economic changes that have transformed “private government” in the past few decades, with consequences that threaten the viability of her vision of ensuring worker voice in the governance of private firms.

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Neoliberal Encasement Infrastructure: The Case of International Organization Sovereign Immunity

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Isra Syed –

9780674979529Last month, the Supreme Court handed down a historic decision in Budha Jam v. International Finance Corporation, ruling that, under the International Organization Immunities Act (IOIA), international organizations are no longer subject to absolute judicial immunity in U.S. courts. The case marked a significant victory for the plaintiffs, who are a group of Indian fishing communities suing the International Finance Corporation (IFC) over tortious environmental damage in their communities caused by the IFC-funded Tata Mundra coal plant. However, the Budha Jam decision, which now restricts international organization immunity to the same level of immunity granted to foreign sovereigns, raises a set of questions about equitable transnational governance, brought into sharp relief by Quinn Slobodian’s “market encasement” thesis in Globalists. As per his thesis, global neoliberalism operates not through a theory of pure anti-statism, but rather through reliance on a strong order of supranational governance institutions with the ability to protect private property interests in a manner insulated from democratic feedback (i.e. “markets encased by institutions”).

In a world of encased markets, what would it mean to make organizations like the World Bank and IFC more democratically and locally accountable? And, to what extent is judicial review in U.S. courts a useful path toward such accountability?

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European Constitutionalism: The Neoliberal Drift

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Alexander Somek

9780674979529We have not yet seen the full story of “law and neoliberalism”, even though a number of legal scholars have written on related subjects from slightly different angles. Duncan Kennedy, for example, has repeatedly attempted to tease out and to distinguish periods of globalized legal scholarship. Herb Hovenkamp recently presented a sweeping account of the imprint that Darwinism and marginalism left on American law. As early as in the 1970s and 1980s, proponents of the critical legal studies movement, such as Roberto Unger or Mark Kelman, pointed out that the modern legal system as such lends expression to the values of liberal individualism (again, it is Kennedy to whom we owe important contributions in this context). Inadvertently, Kelman’s penetrating critique of Chicago school style law and economics, in which he was joined by many others, turned out to be the first critique of typically neoliberal legal thinking, even though it had grown out of the attempt to expose the pathologies of “liberal legal consciousness” tout court.

What we have now seen with the publication of Slobodian’s Globalists, is how, and in which respect, economic neoliberalism has fed into the emergence and growth of global and regional transnational legal institutions. As Slobodian artfully demonstrates, this connection is by no means accidental, it is, indeed, a consequence of the belief in the existence of a world economy. If the economy is in fact an entity of global expanse, the old liberal demand that the state not unnecessarily interfere with society has to be extended to external relations. States must not pursue protectionist policies nor affect adversely the interests of foreign investors. What is more, integrating the decentralised national regulators of the world economy into some international federal system promises to wipe out redistributive social policies in the long haul owing to intense economic pressures of regulatory competition.

In what follows I would like to underscore the importance of Slobodian’s contribution, for it allows us to perceive more clearly the relevant differences between the US American and the European variety of legal neoliberalism. I would also like to add an example for how the European version reinforces constitutional constraints on national democracies in practice.

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The Globalists: Law, Race, and Empire In and Beyond Intellectual History

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Ntina Tzouvala –

9780674979529‘We are all internationalists now, whether we like it or not’, proclaimed Tony Blair in 1999, possibly the high-point of (neo)liberal internationalism. In his masterful Globalists, Quinn Slobodian reconstructs the intellectual history of a particular group of thinkers who were instrumental to the ideological and institutional ascendance of a particular idea of neoliberal internationalism that emphasized the role of law and institutions for the maintenance of global capitalism. Self-described as the ‘Geneva School,’ this group included members such as the German ordoliberal Wilhelm Roepke, the noted international lawyer Ernst-Urlich Petersmann and, according to Slobodian, Friedrich von Hayek himself. Notably, Globalists situates the formulation and diffusion of the ideas of the Geneva School in the intersection of two imperial collapses: the demise of the Austro-Hungarian Empire and the rapid collapse of European empires in the decades following the Second World War. The question of how to create and maintain economic order in the face of political collapse and re-organization led the Geneva School to undertake an effort to decouple the juridical protections of competitive markers from political authority, an effort accompanied by the Geneva School’s fundamental distrust in the proliferation of mass democracy and workers’ power at home and abroad.

Situating the Geneva School within this post-imperial context is important not least because this aspect of neoliberal thought was previously neglected or misconstrued through a selective reading of some neoliberals’ earlier critiques of empire as ways of building trade monopolies and rent-seeking. Perhaps more importantly, this particular way of contextualizing neoliberal thought enables Slobodian to clarify the neoliberal understanding of the state, not as a monster to be slayed but rather as a necessary guarantor of competitive economic order, but only when it is effectively disciplined and remade by international laws and institutions. The role of law is, thus, central in Slobodian’s account, given its very centrality in the thought of the protagonists of this book.

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Neoliberalism: From Law to Resistance

This is the first of a series of posts on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Christine Schwöbel-Patel –

9780674979529There are two recurring themes about neoliberalism and law. One of the themes (often voiced by the Right) is that neoliberalism has become a type of bogeyman, standing in for everything privatized, profit-driven, inequality-creating. Another recurring theme (often voiced by the Left) is that neoliberalism has been entirely ignored by lawyers, who believe that what they are doing does not really relate to the de facto inequalities of the global economy. Commentators on neoliberalism therefore either consider it as tediously omnipresent or as worryingly absent. Quinn Slobodian’s recent brilliant book Globalists addresses both of these themes, providing nuance to those troubled by neoliberalism and urgency to those (so far) untroubled by it. Apart from the elucidation of neoliberalism, Slobodian also gently but decidedly points us in the direction of possible routes for reclaiming internationalism from the Globalists.

From Slobodian we learn some vital things about neoliberalism which compel more nuance in the use of the term. It should be said that what we learn does not make neoliberalism more benign, but rather it allows us to pinpoint when and how neoliberalism came to be the dominant project – and with that possible modes of resistance against it. For international economic lawyers who believed that politics and ideology are outside of the discipline’s ‘neutral’ legal structures, the book should be more than simply an eye-opener; it should lead to a profound and devastating revelation of how international economic law is deeply implicated in inequality today.

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On Reuniting Legal Realism with Moral Pragmatism

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Luke Herrine 

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In 1987 Robert Gordon recounted finding among those “in the center or left of American liberalism…this paralysis, founded in their sense that legal and social realities are frozen, that we have reached the end of history and that the possibility of fundamental change is now forever closed to us.” Gordon’s experience is not unique, of course. The critical project of “unfreezing legal reality” to make it more pliable for egalitarian restructuring has had to confront not only the legal system’s own defense mechanisms but a set of discourses that make it hard to think outside the current system.

As many members of this blog have noted, neoclassical economics has been the most powerful such discourse, but moral philosophy—even that produced by egalitarians—has been similarly unforgiving. Most debates in Anglo-American moral and political philosophy have taken place in the realm of the ideal. Political morality amounts to articulating the constitution reasonable persons would agree to ideal conditions. Legal reasoning requires “rational reconstruction” of existing institutions to understand their moral structure. Egalitarianism is about figuring out how to set up idealized (read: using neoclassical assumptions) insurance markets to correct for inequalities of luck while maintaining room for agency. The idealizations of the debates tend to vacillate between being so unlike our actual world as to be difficult to make sense of or so like our actual world as to “freeze” it by moralizing existing institutions. They may help clear up some of our ideas, but they do not give us much to work with in the project of dismantling oppressive institutions and building democratic ones in their place.

Many critical legal theorists sought alternatives in deconstructive theories, which more often than not were so totalizing that they left little sense that one anybody (except perhaps judges) could do anything productive to reshape society.

Elizabeth Anderson has been the foremost advocate of a pragmatic alternative that treats moral theory like realists treat law: as a going concern. Following a venerable American tradition starting with Peirce, James, and Dewey, she understands moral debate as happening in media res, between socially and historically situated actors attempting to make sense of their attitudes about the world in the process of acting on it. Concepts like “freedom”, “equality”, and “exploitation” evolve out of historically embedded attempts to express attitudes about certain institutional arrangement; they necessarily evolve as arrangements change and as we reflect on what we really ought to care about regarding them. Moral philosophy is merely an extension of everyday reflective and discursive practices, and, if it strays too far from those practices, it results in concepts and arguments that have little or confused relevance to the real world. The process of deciding on ends is not separated from the evaluation of available means in any given context, and both are tied to our evolving understandings of how the world works. It is a process of ongoing recalibration.

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Rethinking Public and Private Power: Anderson’s Private Government and Labor Law Reform

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Catherine L. Fisk –

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Elizabeth Anderson has gained rock star status as the leading philosopher-critic of rising economic inequality and its threat to democratic society. In her second Tanner Lecture, Anderson provides one of the most exciting theoretical justifications for labor law reform since the demise of popular interest in Marxist theory. Anderson’s work inspires me to think about the importance of worker control of access to jobs, co-determination of workplace and corporate governance, and the importance of inclusive unionism along the entirety of a supply chain.

The Industrial Revolution, Anderson says, shattered eighteenth century egalitarian theorists’ hope that “a free society of equals might be built through a market society.” Employment in large enterprises for the vast majority of workers after the Industrial Revolution, whether in a Ford factory in 1930 or in McDonald’s today, was to subject oneself to a dictatorship for most of one’s waking hours. The only real freedom the worker enjoys is to quit. The freedom to quit is not much freedom. (After all, Anderson points out, Mussolini was no less a dictator because Italians could emigrate.)

Labor unions are the only mechanism in history that institutionalized what Anderson identifies as the four essential ways to protect “the liberties and interests of the governed under any type of government.” These are (1) an effective use of the threat of exit (as by striking or enabling workers to leave a job without being blacklisted or unemployed), (2) the rule of law (effective enforcement of contractual and statutory rights to minimum standards and fair treatment), (3) substantive constitutional rights (rights at work), and (4) voice (a say over working conditions). Unions are the only institution that achieved nationwide scale and a sustainable funding mechanism to enable consistent performance of these four functions by and on behalf of workers. Other worker formations (worker organizations like ROC United in the restaurant industry or the National Domestic Worker Alliance in domestic work) could play many of these functions, and already do on a limited scale, but they have yet to achieve meaningful voice in the workplace.

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Workplace Autocracy in an Era of Fissuring

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Cynthia Estlund

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Elizabeth Anderson’s deeply thoughtful book, Private Government, aims to bring the problem of workplace hierarchy and “the pervasiveness of authoritarian governance in our work and off-hours lives” back onto the front burner of political and philosophical discourse, where it resided a century ago. She reframes the problem as one of “private government” – that is, a government “under which its subjects are unfree,” and which “has arbitrary, unaccountable power over those it governs.” “It is high time,” says Anderson, “that political theorists turned their attention to the private governments of the workplace.”

The problem of employer domination has long occupied legions of labor and employment law scholars. Unfortunately, Anderson’s welcome effort to reignite stalled debates (which I review at greater length here) might come too late, given decades-long trends in the organization of work that are transforming the landscape of work and destabilizing the very concept of workplace governance.

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Worker Voice, Worker Power

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Charles Du

anderson book coverEvery day, as in-house counsel for an activist, organizing union, I listen to workers’ stories of the indignities that come with being subject to the arbitrary power of their employers: being forced to work through breaks and lunch; facing sexual harassment from customers, coworkers, and supervisors; being fired for an offense they did not commit. It is gratifying to see these lived experiences of working people, so often ignored, being highlighted by a political philosopher of Elizabeth Anderson’s stature. By denaturalizing and challenging arbitrary and unaccountable authority in the workplace, Private Government is a powerful argument for an expansive commitment to democracy in private spaces like the workplace, where blinkered definitions of what counts as “government” have come to serve as ideological justifications for abuse and domination. Her book also comes at just the right time, providing conceptual clarity in a moment of rising social democratic sentiment and actual potential for change. I’d like to provide some reflections on practical lessons that labor law practitioners and academics might draw from Anderson’s work.

After laying out the problem of private government at work, Anderson examines four different strategies for tackling the problem: (1) exit, (2) the rule of law, (3) substantive constitutional rights, and (4) voice. She dispenses with the first three before concluding that “there is no adequate substitute for recognizing workers’ voice in their government.” I agree, but I believe that the critical question is how to achieve greater worker voice in the face of recalcitrant employer opposition, a problem that requires further attention to legal norms, constitutional rights, and worker exit.

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Democratizing the Workplace

This post opens a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Frank Pasquale –

anderson-book-cover.jpgWork can go wrong in many ways. Ship breakers in Bangladesh routinely die as they try to dismantle abandoned vessels with acetylene torches. Meat cutters in Iowa suffer repetitive stress injuries during twelve-hour shifts on carcass-filled assembly lines. Truckers can endure a modern-day version of indentured servitude, forced to pay for the very vehicles they use to do their job. Retail bosses pressure sales staff to accept lower pay so their beleaguered brick-and-mortar stores can keep up with Amazon—which maintains its own competitive edge with a workplace culture reminiscent of Glengarry Glen Ross. The upper echelons of other tech workplaces are no Elysian Fields of job satisfaction, either: An avalanche of sexual harassment claims is overwhelming Silicon Valley, and burnout is endemic at struggling startups.

It might seem odd to discuss all these problems together—for example, Amazon developers appear to have little in common with day laborers. But good social theory aims to illuminate unexpected connections. Elizabeth Anderson’s bold Private Government is a firm foundation for twenty-first-century civic education in workplace democracy. Anderson exposes the inevitably political dimensions of work. And she leaves us in no doubt that for employees the workplace is tyrannical, ruled by the whims of exploitative and mercurial bosses.

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