Beyond Access to Justice: Challenging the Neoliberal Roots of Hyper-Gentrification

John Whitlow – 

New York City recently became the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of eviction. This was an important step in the fight for equal access to the courts, and a significant victory for tenant advocates who had waged a decades-long campaign to ensure fairness for people on the verge of losing their homes. I cut my teeth as a New York City tenant attorney in the early 2000s, when the right to counsel felt closer to a pipedream than a reality, and I can say unequivocally (and uncontroversially) that providing tenants with a lawyer when they enter the maw of housing court is a good thing. At the least, it will keep landlord attorneys and judges on their toes and reduce the stress and trauma tenants feel when navigating a byzantine system on their own. At the most, it will allow people to mount robust defenses and save their apartments, in the process preserving some of New York’s evaporating supply of affordable housing. But I can also say that it is not nearly enough to derail the hyper-gentrification that has been a through line of recent economic development policy and has its roots in the fiscal crisis of the 1970s.

In the context of an over-heated housing market, the right to counsel should be viewed as a limited intervention that operates when eviction is imminent, i.e. after the structural sources of displacement have done their work. Failure to recognize the limits of the right to counsel – and of access to justice paradigms more generally – naturalizes those structural sources and legitimates as normal the widening inequalities produced by our current political-economic and social order. Challenging inequality and displacement in a deep and lasting way requires moving beyond access to justice and critically engaging the core tenets of market-driven urbanization.

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Economic Human Rights, Not Tough Policy Tradeoffs

Martha McCluskey —

According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice.

Orthodox law and economics tellsus: all rights have a cost.  Law allocates economic gain, but cannot generate it, in this view.  From this premise, any new economic rights aimed at supporting those who are disadvantaged must come at the expense of some other economic gain.  For example, a universal right to affordable health care would simply mask an inevitable tradeoff in public and private spending:  fewer resources for education or jobs.  In addition, in this logic, an economic entitlement to receive basic human support will replace market discipline with incentives for waste, reducing economic resources overall.

What orthodox law and economics doesn’t tell us:  all costs have a right.  That is, any costs associated with new economic rights arise not from essential economics, but instead from contingent legal and political arrangements. Particular legal and political regimes produce, organize and limit access to human needs like education or health care. Law itself shapes the economic forces that appear to be disrupted when law re-allocates rights to advance general human needs.

On the question of health care, for example, a complex system of legal rights and institutions already protects economic gain for some at the expense of health and economic security for others.  Legal systems distributing risks and rewards in health care include patent rights, insurance regulation, corporate governance rules, antitrust law, criminal law, and tax policy. Moreover, these legal rights are not firmly settled or self-evident, but instead are continually questioned and modified, especially in response to lobbying, litigation, and advocacy by industry interests.  New rights to egalitarian economic support can similarly re-arrange economic gain and loss as a legitimate and beneficial function of democracy.

Further, we should not presume human economic rights amount to zero sum transfers or costly economic distortions.  That conventional law and economics thinking rests on the myth of an essential market order that transcends law and politics, thereby closing off analysis of how re-structuring the market could generate far better economic conditions.  But a more complete law and political economy view recognizes that entitlements do not come at the expense of naturally productive market activity; instead, entitlements generate and govern market production. New legal rights can give people new power to resist existing market constraints, and that transformative power can lead the economy to new levels of prosperity and stability. Continue reading

The Real Barriers to Access to Justice: A Labor Market Perspective

Frank Pasquale – 

There is a vast literature on access to justice in the United States. In what Sameer Asher has diagnosed as a broadly neoliberal discourse, the legal profession itself stars as the key barrier to access to justice: It is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

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The Mythical Community Bank

Mehrsa Baradaran — 

It’s not particularly surprising that ten years after the financial crisis, the Senate is poised to pass a deregulatory banking bill. In the world of banking regulation, memories are remarkably short. In fact, armies of lobbyists have been slowly chipping away at Dodd- Frank since its passage. But there is something sinister in the way Democrat and Republican supporters of this bill characterize what they are doing: supporting community banks so that they can serve their communities. They conjure images of George Bailey banks across the country, just waiting to be free of onerous and expensive government regulation in order to help disadvantaged and undeserved communities.

“Main Street businesses and lenders tell me that they need some regulatory relief if we want jobs in rural America,” Democratic Senator Jon Tester of Montana said during a hearing to vet the bill in November. “These folks are not wearing slick suits in downtown New York or Boston. They are farmers, they are small business owners, they are first-time homebuyers.”

But what is it that these “Main Street lenders,” fighting the Henry Potters of the world, want? The bill would exclude from Federal Reserve risk oversight banks with assets between $50 to $250 billion. There is a glaringly obvious problem with this: banks with those kinds of assets are hardly small community banks. In fact, the bill is a Trojan horse, using community banks as cover to deregulate some pretty large regional banks. Many banks that fell into trouble during the last financial crisis are within the proposed size range. This simply isn’t about harmless small banks that are just trying to help the downtrodden mom and pop store or the marginalized borrower seeking a mortgage so she can live the American dream. It’s just another sop to the big banks.

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Structural Inequality and the Law: part I

K. Sabeel Rahman 

In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of the sort that marked the Jim Crow South—had been officially eliminated as in the case of Louisville, and had never been employed in Seattle. Thus whatever racial disparities existed in these regions were not the product of law. For such schools, Roberts wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The systematic racial segregation of modern metro areas, long documented by urban scholars as a result of economic inequalities, racial wealth disparities, and deliberate policies of zoning and urban planning, did not factor into Roberts’ analysis.

A relative lack of concern for what might be termed “structural” inequality has characterized the Roberts Court’s voting rights jurisprudence as well. In Citizens’ United v. FEC, which upheld corporate campaign contributions as political speech, the Court ignored how disparities in economic wealth could skew the otherwise free-flowing marketplace of ideas or the dynamics of political competition. In Shelby County v. Holder, Roberts suggested that the preclearance regime established by the Voting Rights Act of 1964 to oversee voting regulations in many Southern states was no longer needed. In her dissent, Justice Ginsberg castigated Roberts’ argument as, among other things, exhibiting a blindness to more subtle “second-generation” barriers preventing minority groups from exercising their voting rights in full.

These glimpses point to a larger challenge for legal scholarship, analysis, and policymaking. The question of structural inequalities often stump courts and lawmakers alike. What does it mean for inequality to be “systemic”? Can any single actor be held responsible for such systemic or structural disparities? If these disparities are so diffuse, so baked into the background patterns of social and economic activity, how would they even be redressed or counteracted? This two-part series offers a means of conceptualizing both structural inequality and its means of redress.

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What Role for Global Finance in a Course on International Trade Law?

David Singh Grewal –

Most years, I teach an introductory course on International Trade Law. And every year since I began I’ve included a session on the international financial architecture, on the view that this architecture is intimately bound up with the functioning of the trade regime.

Euro Dollar The European Union United States

I begin the course predictably enough with a series of sessions on the history and political economy of international trade before we get into what I call the “guts of the GATT.” Here, we study the key articles of the General Agreement on Tariffs and Trade (GATT) and the main disputes that have arisen concerning their interpretation, both before and after the establishment of the World Trade Organization (WTO). Any course on international trade law would have to introduce core elements such as “most favored nation” status (Art. I), “national treatment” (Art. III), key exceptions (for example, as elaborated in Article XX), and the main “annex agreements” of the WTO (such as the TRIPS agreement, which Amy Kapczynski has discussed on this blog), as well as the various remedies and safeguards available to states facing disruptions from international trade. But toward the end of the course, I bring my friend and colleague, Robert Hockett, to discuss the international financial architecture underpinning economic globalization as a whole.

I suspect few international trade law courses address international finance as an integral part of an introduction to trade liberalization. Given the evolution of international economic law, this choice is probably unsurprising. Neither in the treaty text of the GATT (nor in the other “annex agreements” that make up the WTO) is financial architecture explicitly regulated. By contrast with international trade law, international financial law is elaborated through a different set of governing texts, institutions, and international monetary practices—prominently, the IMF Articles of Agreement, the IMF itself, and the practices that have developed among affiliated national central banks and finance ministries. Trade law scholars may be understandably wary of bringing such complex or seemingly extraneous considerations into a course that will already be full enough.

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The dark side of the ‘data-driven’

Frank Pasquale –

In her fascinating new book Automating Inequality, Virginia Eubanks recounts that the first “big data” set in the United States “was the Eugenics Records Office in Cold Spring Harbor. It was the public arm of the eugenics movement.” While the systematic collection of data has underpinned many important initiatives, it also has a dark side. Expect to see that dark side re-emerge with a vengeance in the next few years, as many American states intensify their surveillance of already disadvantaged groups.

Are there forms of knowledge that the state—or even university researchers—should not aspire to attain? Privacy law is meant to empower us with zones of thought and experience that no one can access without permission. Another branch of law, governing human subjects research, ensures that experimenters obtain consent before gathering data about individuals. As a member of the Council on Big Data, Ethics, and Society, I have thought and written about the types of data corporations and states should be able to gather about individuals, and the power relationships that data gathering entailed.benthams-panopticon-copy.jpg

Like disputes over free expression, the politics of data gathering for social science research is becoming a fraught area for progressives. For some, knowledge is an intrinsic good. Research of all stripes is a way of better understanding ourselves and our world. But there is another, more Foucauldian perspective: Where does the burden of scrutiny fall? What complicity does a social scientist have with the regime that provides data? The construction of what counts as “success” or “failure” in a given study is a highly political decision. A particular focus on some data or metrics comes at the cost of an exclusion or devaluation of others (akin to the “jurispathic” judgments Robert Cover recognized). All these questions will be critical as America’s laboratories (or meth labs) of democracy concoct innovative ways of denying health care to the poor, and ask social scientists to study “what works” in health policy.

Evaluating the Costs of Program Evaluation

The Trump Administration recently announced an intent to grant states permission to condition Medicaid benefits on work requirements (via Section 1115 of the Social Security Act). Former CMS Administrator Andy Slavitt immediately condemned the move. Activists were even more outraged. Journalists chronicled the many ways the work requirements were likely to worsen health outcomes, while burdening the vulnerable with paperwork and bureaucratic hurdles. New state “flexibility” will translate into cruel cutbacks for the disabled (who now may be denied transportation benefits).   Continue reading

Tax policy is human rights policy

Zak Manfredi – 

“[T]ax policy is…human rights policy.”

– Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights

On the eve of December 1, 2017—as members of the United States Senate prepared for a late night of political contestation—Senator Bernie Sanders made the Republican tax bill a human rights issue. Senator Sanders drew attention to UN Special Rapporteur Philip Alston’s then-ongoing investigation into how “extreme poverty” implicates human rights in the United States. Alston later met with Senator Sanders, and, after concluding his visit, castigated the Republican tax legislation for its potential to exacerbate already historic levels of economic inequality and extreme poverty. In the wake of the finalization of the tax lawone of the greatest tax transfers of wealth to the rich in modern times—numerous activists also decried the human rights implications of radical economic disparities. Alston’s trip to the United States might nevertheless have seemed controversial to other observers precisely because it treated extreme economic inequality and poverty as human rights concerns. As a formal matter, the United States has never ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and even its assent to the International Covenant on Civil and Political Rights (ICCPR) consisted of many formal reservations that render the treaty almost entirely non-justiciable in US courts. More generally, as Alston’s preliminary report noted, legal institutions in the US have been notoriously reluctant to apply the language of “rights” to address social and economic justice claims.

6720.jpgFor contemporary scholars and activists invested in challenging extreme inequality and concentrations of corporate power, however, human rights may prove controversial for a different reason: the long-shadow of the left critique of rights. Since at least Karl Marx’s critique of the French Declaration of the Rights of Man and Citizen, many left thinkers have been suspicious of the conceptual foundation and practical implications of human rights.  For Marx, the Rights of Man helped underwrite a regime of private property law that stifled “genuine human emancipation,” while simultaneously absolving the state from addressing social and economic domination in the sphere of “civil society.” On this account, just as the state recognizes the formal equality of all persons, it simultaneously abdicates responsibility for private forms of discrimination and social domination—rights to hold private property offer no comfort to those without means to acquire food, shelter, or housing. More generally, leftists have long observed that a narrow focus on formal equality obscures and ratifies substantive inequalities. Indeed, many subsequent critics—including notably early writings of the Critical Legal Studies Movement—contend that the promulgation of legal rights can exacerbate conditions of oppression. Contemporary scholars note how rights claims are invoked to prevent the redistributive taxation of privately held capital, to protect the rights of corporate entities to “speak” as in Citizen’s United, and to weaken the power of labor unions with “right to work” laws.

Today, thinkers have updated these critiques to consider how human rights law can function as a form of “neoliberal governance”—these critics stress that complying with human rights norms often requires states to make certain “reforms” that align with political and economic agendas that favor “free market” principles. As Naomi Klein observes, the neoliberal economic programs championed by Reagan and Thatcher spread across the globe during the 1970s and 80s at precisely the same time when international human rights NGOs also flourished. Jessica Whyte’s astute analysis argues that even the social and economic human rights frameworks of the twentieth century were designed to be “flexible” enough to allow for the implementation of new forms of neoliberal economic governance. While I cannot do full justice to these critiques in the space here, it is important to note that they ultimately rest on a set of concerns about the kind of normative vision of the “human” that human rights laws underwrite. Anthropologist Talal Asad, for one, suggested that “the historical convergence of human rights and neoliberalism may not be purely accidental,” since human rights notions of “self-ownership” and “self-preservation” align with neoliberal economics’ understanding of human beings as pieces of “human capital” always striving towards greater self-augmentation. Consider, for instance, whether a theory of human rights imagines human being as, in Marx’s critique, “egoistic individuals” preoccupied with holding and consuming private property, or in contemporary terms, as entrepreneurial creatures always seeking to maximize their individual capital and credit-worthiness; when such a theory of human rights is implemented in practice, critics worry that the legal protections it offers will focus primarily on creation of “free markets” and justify policies that intensify social and economic stratification. Perhaps more distressingly, left critics of human rights also worry that particular rights regimes encourage and produce different self-conception among rights holders—if a human right to private property or wealth accumulation is enshrined in law, it helps establish a framework for how people evaluate their own, and each others, life projects. Continue reading

The Law and Political Economy of the “Future of Work”

Brishen Rogers

How will new advanced information technologies impact work? This is a major focus of public debate right now, driven by widespread fears that automation will soon leave tens of millions unemployed. But debate so far has tended to neglect the relationship among technological innovation, political economy, and the law of work. This is a major omission, since the automation of particular tasks doesn’t just happen. Rather, it takes place under laws that are subject to democratic oversight and revision – and with different laws, we could encourage a radically different path of technological development, one in which workers have a real voice, and in which they share consistently in technology-driven productivity gains.

Take two upcoming transformations that we’re all familiar with: the automation of some kinds of driving and some kinds of fast-food work. Within a few years, truckers, delivery drivers, and taxi drivers may be able to use an autonomous mode consistently on highways. Later on, they may be able to do so on major suburban and rural streets. But given the wide variation in road quality, humans will likely need to pilot vehicles in residential areas and on city streets for some time to come. And given the wide variation in building structures that delivery robots would need to navigate, humans will almost certainly need to complete deliveries in many instances.

Similarly, in fast food, ordering kiosks are already displacing cashiers, but not in their entirety. Some customers are unable to use the kiosks, including the 70% of McDonalds customers who use the drive-through. Sometimes the kiosks will break down, and sometimes orders won’t be processed appropriately, and thus workers will need to step in. Food preparation may also be automated in part, but given the fine motor control and tacit knowledge required for cooking, it has proven resistant to full automation. Like the transformation in driving, then, this change will likely be gradual and iterative. Technology will augment human capabilities rather than replacing humans wholesale, and workers, companies, and consumers will need to adapt over time.

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Understanding the Political Economy of Academia Through the Tax Bills

Alyssa Battistoni

Paying for corporate tax cuts with revenue raised from grad students and universities sounds like a parody of a Republican tax bill. Unfortunately–like many seeming parodies these days–it was all too real. The tax bill that originally passed the House would have taxed both graduate student tuition waivers and university endowments above a certain level, measured per-student.

free yale pic

The tax on tuition relief wasn’t in the version of the bill that passed the Senate, and has been dropped from the bill entirely in the reconciliation process—thanks largely to grad students and their unions, who led a wave of protests against the provision. The endowment tax, however, remains intact despite the best lobbying efforts of university administrators.

Understanding the various versions of the bill in relation to both grad students and endowments provides a valuable window into the political economy of contemporary academia. In particular, Congressional Republicans have unintentionally revealed the ways in which the labels of “school” and “student” are only partial descriptors of contemporary universities and the people who study at them.

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