The Curative Power of Law and Political Economy

Amy Kapczynski —

Ask not for whom the First Amendment tolls: It tolls for you.  Or so I argue in an essay just published at the Columbia Law Review online.  It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy”—a boring title for a vital and urgent problem.  Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives retain control over the webs of commodity exchange upon which our lives depend?  The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.

The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history.  This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly.  (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers.  Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency.  But the respect and support the FDA commands have made legislative assaults challenging.  Perhaps that is why industry—and industry funded groups—have invested in the use of the courts to attack its power.

What does that attack look like?  The cases are astonishing.  Some suggest that drug companies have a free speech right to market drugs for unproven uses.  These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work.  Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing.  New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products.   E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.

The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether.  I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.

How did this happen?  Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic.

How we might we best respond to this new and rather ghoulish First Amendment?  There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay.  Importantly, though, these cases should also cause us to rethink our needs for public infrastructure.  If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level.  New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment.  The parallels to Medicare For All—spurred on by attacks to the ACA—are easy to see.

The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute.  If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.”  People often ask me for work describing how to “do LPE.”  These two pieces provide possible examples.

Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School. 

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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“Law is Politics by Other Means?”: In Support of Differentiation

Ralf Michaels —

The struggle over Judge Kavanaugh’s nomination for the US Supreme Court and the subsequent horrible spectacle of the Senate hearings brought about a “genuine question” by a leading economist, Dani Rodrik: “how do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’?  Asking for friends in Hungary, Turkey, Poland, etc..” Several authors on this blog (here, here, and here) have given excellent answers to the question, insofar as it affects the United States.

They have been less sure, however, about what to do with the perspective of Rodrik’s “friends in Hungary, Turkey, Poland, etc..”

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No Law Without Politics (No Politics Without Law)

Jedediah Purdy —

Judge Brett Kavanaugh, now very close to controlling the decisive vote on the Supreme Court, resembles other candidates for high political office. He has a constituency–the Federalist Society, anti-abortion activists, everyone who hopes to see Obamacare weakened and affirmative action ended–and other constituencies in opposition. Lots of MN SUPREME COURT WIKImoney is being raised and spent for and against his confirmation. He has a set of commitments that are plainly at the center of national controversies–over the issues already mentioned, and also over the role in money in politics, the future of criminal justice and environmental, and no doubt a great more that we may not exactly “know” from his judicial record, but which is pretty confidently inferred from his outlook and affiliations. His confirmation, in other words, is a lot like choosing a senator, except that he’ll be much more powerful than almost any individual senator–and never has to answer to voters, now or in the future.

Nonetheless, it has been an article of faith–or at least a relentless rhetorical trope–on both sides of the fight that “politicization” of the judiciary is a kind of corruption and crisis. What distinctive judicial or rule-of-law values draw the line between a court, with or without Judge Kavanaugh, and other aspects of politics? What does it mean to say, as Amy Kapczynski does in her opening post, that courts are political, but not in the same way that politicians are?

Amy’s answer is that courts “morph” politics into “universalizing argument,” giving reasons for their decisions that are supposed to apply to everyone, and that this helps to articulate a picture of a political community that is “ours,” that has a “we.” (She disclaims the thought, implicit in some defenses of courts, that there is anything in legality itself that will produce liberal or left-leaning results: procedure and universalizing efforts at neutrality are not, she tells us, independent of visions of justice or the good society.)

I think we have to look into the abyss and admit the possibility that politics really does come first, that the question is not for or against politicization, but what kind of politicization. My reflections are meant in a spirit of earnest joint inquiry, and of uncertainty. (As I sometimes feel obliged to say on Twitter, tweets do not imply self-endorsement.)

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Political Courts and Democratic Politics

Samuel Moyn —

The nomination of Brett Kavanaugh to the Supreme Court is on the knife’s edge. The stakes are higher than for the confirmation of any American judge in our lifetimes. For MN SUPREME COURT WIKIthat reason alone, it is probably not a good time to stage a general debate whether and in what sense law is something more than politics by other means. But I would conduct it by separating out the sort of high stakes judicial appointments and decisionmaking that has attracted everyone’s interest in the past few weeks.

Low stakes judicial decisionmaking is inevitably political too, obviously. Generations of critical work has established that low stakes judicial process is shot through with politics, and generally helps reproduce illicit structures, especially through criminal and private law. But if that debate will always deserve to continue, one can legitimately conclude that high stakes judicial decisionmaking is different. That it is politics by other means is much more straightforward and undeniable, and the primary question is how progressives should think about it.

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Partisan Warriors and Political Courts

Amy Kapczynski —

Thursday’s Supreme Court confirmation hearing was a stomach churning, nauseating affair. Christine Blasey Ford laid her life on the tracks, knowing full well that trains delivering important men can rarely be stopped.  That was enough, but then came the turn:  Brett Kavanaugh, partisan warrior.  He tore into Democrats for a process almost entirely dictated by Republicans.  He seethed with explosive anger, which he weaponized to advance his own career.  He lied and evaded.  And walked away somehow having improved his chances of being appointed to the Supreme Court.

MN SUPREME COURT WIKI

If “courts are political,” do we have grounds to object to this display?  Dani Rodrik asked a similar question on Friday in a broader frame: “How do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’?  Asking for friends in Hungary, Turkey, Poland, etc.”

The question is much deeper, as he rightly points out, than our immediate American fiasco.  And it is an urgent one for the LPE crowd, raised up as we were on the insights of legal realism and critical legal studies, yet committed – as we also are – to articulating a set of claims to the right and the good that could help make our democracies more fair and just.

In the coming days and weeks, a few of us will offer some ideas on these questions to see where our conversation might lead us.  To start us off, I’ll expand a little on the epigrammatic answer I gave to Rodrik: “In a democratic system judges are not political in the way politicians are. They must hear all comers; give reasons; express a universal principle — they morph politics and produce universalizing argument.”

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