Ten Theses on LPE of Foreign Policy

Ganesh Sitaraman – 

In many areas of law and policy, political economy thinking has not yet become mainstream. People often separate politics from economics to a degree that is unrealistic, and they undervalue how economic power can be used for political ends. American foreign policy today, I think, suffers from these problems. Over at the American Prospect, I’ve offered ten theses on the relationship between political economy and foreign policy. They are stylized for effect, and thus leave out some nuance, but my hope is to start a conversation on what the consequences are of placing political economy at the center of foreign policy thinking.

Ganesh Sitaraman is a Chancellor Faculty Fellow, Professor of Law, and Director of the Program in Law and Government at Vanderbilt Law School.

 

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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The Procedure Fetish

Nicholas Bagley

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is my friends on the left, many of whom I fear are playing into the hands of those who want to strangle the administrative state.

The article opens with a puzzle. Knowing full well that onerous procedural rules will hamstring federal agencies, Republican policymakers have pushed “regulatory reform” bills like the Regulatory Accountability Act, the REINS Act, and the Separation of Powers Restoration Act. By tilting the scales against agency action, Republicans hope to end job-killing regulations and invigorate the free market. It’s a libertarian’s dream.

Democrats get it. They understand that the tangle of new procedural rules, if adopted, would bind the administrative state as effectively as Lilliputian ropes bound Gulliver. And they’ve generally (though not universally) opposed what they view as brazen anti-statist measures, which would frustrate their efforts to forestall environmental degradation, protect consumers, and empower workers.

So here’s the puzzle. If adding new administrative procedures will so obviously advance a libertarian agenda, might not relaxing existing administrative constraints advance liberal ones? What if Gulliver is already bound?

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Majority Leverage Against Minority Rule

Joseph Fishkin —

There’s a lot for liberals to despair about these days and the Kavanaugh appointment sharpened several sources of that despair. After such an intensely partisan fight about the Court, and especially after the remarkable, norm-shattering partisan performance of the Justice himself at his final confirmation hearing, some of the liberal worry is inevitably focused on questions about the Supreme Court. Should “we” favor more judicial restraint, more “taking the constitution away from the courts,” more strategies of challenging the Court through politics? These are important questions; there’s much more to say about them. (Indeed I will say more about them, with my coauthor Willy Forbath, as they relate to the project of our book.) But these questions may not be the most urgent ones right now, with an election weeks away. The most urgent ones, I think, have to do with the specter of the possibility that an emerging American majority—racially diverse, young, and well to the left of the current government on both economic and social issues—may face the prospect of living for a considerable period, perhaps much of our lives, under minority rule.

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Sachs & Block on Labor Day

We’re back from our hiatus, and first up, this cross-post from On Labor, about a new blueprint for labor law. Shouldn’t every day be Labor Day?

 

This Labor Day, A Clean Slate for Reform

Benjamin Sachs & Sharon Block —

As divided as we have become as a country, we arrive at this Labor Day with a shared national understanding: both economic and political power are wildly out of balance, with dire consequences for the vast majority of Americans who find themselves on the losing end of this imbalance. Wherever we live, and however we vote, Americans know that both wealth and political influence are now radically concentrated in the hands of a tiny few.

What does economic inequality look like in 2018 America? Here’s an illustration: The average Amazon worker makes about $29,000 per year, while Jeff Bezos, the Amazon CEO, has a net worth of $150 billion. This means it would take an Amazon worker 5 million years, working full time, to earn what Bezos now possesses.

With respect to political inequality, the data is just as stark. Political scientists have shown that the preferences of the vast majority of Americans simply no longer have any impact on what happens in Washington. In fact, when the rich disagree wth the poor and middle class, the path our government takes has nothing to do with what anyone but the rich want.

Why is it important to consider this crisis of inequality on the day we set aside to honor labor?  Because the evisceration of the labor movement is in large measure what got us here, and resuscitating the collective power of workers is what will get us out of this mess.  The more we learn about inequality – both economic and political – the clearer it becomes that the strength of the labor movement is intimately connected with the equality of our nation. Sustain a strong labor movement and you can count on a more equal society. Kill labor and you kill equality.

The question on this Labor Day therefore must be how, in 2018, can we create a new labor movement, one that can unite the interests of a sufficient number of lower and middle income Americans so that they have the power to restore balance to our economy and politics.

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Bloom on Abood’s Mistake in Jacobin

Will Bloom —
Last Tuesday, I argued in Jacobin that, for all the ways in which Justice Alito’s Janus decision was wrong, it made one important point. Justice Alito correctly noted the false distinction drawn by the Abood court between union’s “ideological” work in the electoral sphere and its “non-ideological” work in collective bargaining and contract enforcement. Abood‘s insistence that there was nothing ideological about collective bargaining reinforced and reified a trend towards the depoliticization of American workplaces, which in turn dampened the development of class consciousness and working class power. My piece focused on a key LPE concept: the ability of the law to lock in and even create power dynamics between parties, and the need to denaturalize and challenge those baked-in relationships.
Will Bloom is a labor and immigration attorney in Chicago. He is a member of the National Organization of Legal Service Workers, UAW Local 2320, and the Democratic Socialists of America.

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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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.