Gender Inequality and the Infrastructure of Social Reproduction

Julie Suk – 

Our jurisprudence of sex equality imagines a world without prescribed gender roles in the family and the public economic and political spheres. Almost fifty years ago, the Supreme Court repudiated the “separate spheres” tradition, which confined women to role of unpaid caregiver in the family and home, while reserving breadwinning and public power to men. Yet, neither constitutional equal protection nor statutory employment discrimination law acknowledges that the separate spheres tradition formed the infrastructure of social reproduction in our political economy. Mothers at home raised the next generation of citizens-workers without pay or rights. It was an unjust infrastructure, premised on women’s subordination, but it served an enduring social need.

Today, no alternative infrastructure of social reproduction has emerged to replace the unpaid contributions of full-time mothers and homemakers. School days did not expand to match the schedule of mothers working full-time, and the definition of full-time work did not shrink to enable its participants to devote much time to the duties of child-rearing. In the absence of a robust state system of social support, working families attempt a range of uncoordinated, expensive market-based improvisations towards gender-equal relations in the home and in the public sphere. The result is an eroded and unjust infrastructure of social reproduction whose burdens fall especially hard on women; the remaining gender pay gap is largely a motherhood gap. Furthermore, poor women, often migrants, are doubly burdened when they are employed to meet the care needs of more privileged households, while caring for their own families at home. Employment anti-discrimination law was intended to counteract sexist stereotypes, but a fuller sex equality requires a new infrastructure of social reproduction.

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Against the Cult of Competition

Sandeep Vaheesan –

business-competition-1024x681

Competition is one of the talismanic words in law and economics and American life. It is often hailed as an unqualified good and touted as a solution to what ails society. The value of competition is endorsed across the ideological spectrum: Conservatives decry the lack of competition in schools and taxi cab services, while progressives highlight the dearth of competition among multinational corporations and call for a revival of antitrust law. Notwithstanding this trans-ideological commitment, we should not privilege competition at the expense of alternative means of structuring a democratic and egalitarian political economy. Three examples illustrate how competition is deficient as a general social organizing principle and should be promoted selectively, not categorically.

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Antitrust and the Informal Sector in South Africa

Dennis Davis, William E. Forbath, Lucie E. White & Julia Dehm –

This is the second post in a two-part series about law and political economy in the South African context. The series reports on a collaboration among leading ‘heterodox’ economists, left-wing sociologists, high level government policymakers, and legal scholars, advocates and activists aimed at “thinking large” about reconstructing the nation’s political economy.

The way out of South Africa’s present crisis lies not only in institutional reform, the topic of the first part of this two-part series, but also in structural and redistributive economic reforms.

Participants in our conversation offered a number of potentially transformative economic proposals, ranging across taxation and public investment, land reform, industrial policy, and sustainable agriculture. Of the various pathways of development we discussed, two seemed especially striking to the participants from the U.S.

Robust Antitrust and Competition Law

The first such  pathway – encouraging small and medium sized firms via competition law – was striking in the way it tracked conversations on the U.S. left today about weaning antitrust from “consumer welfare,” and renewing its original aims by taking on today’s monopolies and oligopolies, with the goals of securing space for competitive, medium-sized firms, and of safeguarding the polity itself, as well as the market, against the oligarchic power of big capital.

Several participants underscored that South African competition law is now primarily focused on redressing abusive or coercive behavior. The focus on behavior, they pointed out, fails to address the ways in which the structure of certain markets and the domination of big, oligopolistic firms can operate to stifle equitable growth, shaping markets, politics and society at large in deeply problematic ways.

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Visions of Radical Reform in South Africa: Toward a New Constitutional Economy

Dennis Davis, William E. Forbath, Lucie E. White & Julia Dehm –

This is the first post in a two-part series about law and political economy in the South African context. The second post can be found here. The series reports on a collaboration among leading ‘heterodox’ economists, left-wing sociologists, high level government policymakers, and legal scholars, advocates and activists aimed at “thinking large” about reconstructing the nation’s political economy.

Law and Political Economy is about rekindling radical political economy for the twenty-first century, understanding law’s part in today’s political-economic order and imagining how law may figure in its transformation. While most of the posts on this blog have focused on the domestic U.S. context, law and political economy is a global project. Nowhere is this project more urgent than in South Africa.

It goes without saying that great economic inequality is a longstanding legacy of apartheid.  But Jacob Zuma’s tenure as President has been branded a period of “state capture”; key democratic institutions were hollowed out and repurposed for private enrichment.  So, the present crisis is marked by deepening class antagonism, an ever-growing distrust toward government and political elites, and mounting rage and despair among the poor black majority.  Many distrust the possibilities of democratic politics to make good on the egalitarian promises of the nation’s twenty-one year old Constitution, and the most thoughtful observers of and participants in the nation’s public life doubt that its democratic institutions can endure without radical reform.  Yet, as Cyril Ramaphosa begins his tenure as President, there are some glimmers of hope.

Last May, the four of us invited a group of South Africa’s leading “heterodox” economists, left-wing sociologists and high-level government policymakers, together with prominent social and economic rights advocates, legal scholars and community activists to begin a collaboration in “thinking large” about reconstructing the nation’s political economy.

In this first part of a two-part series, we will briefly sketch the thinking that prompted this effort, and a few initial ideas for institutional reform that have begun to emerge from it. In the second part of this series, we will outline some of visions of redistribution that emerged from our conversation. A longer account of our conversation can be found in a White Paper we prepared for the Open Society Foundation.

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Guns and Privatized Sovereignty

nraAmy Kapczynski and Jedediah Purdy –

Like many of you, we’ve been moved by the voices of the student activists from Marjory Stoneman Douglas High School. With fierce focus and astonishing political savvy, they’ve unleashed an urgent new national debate about gun control.

America today has the highest per capita gun ownership in the world, and evidence suggests that this is substantially why we also lead the world (with Yemen) in mass shootings. How did this come to be? Defenders of the status quo argue that at the core of gun rights claims are timeless constitutional principles and the virtues of hunting. Their touchstone is the Second Amendment, and its purported individual right to bear arms. In truth, the contours of today’s gun rights took shape in the recent past, in an era of racialized attacks on public institutions and the state, and of politically motivated cultivation of fear.

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There is no necessary trade-off between good work and more work

Frank Pasquale – 

Mainstream economists tend to frame employment policy as a series of tragic trade-offs. If policymakers raise the minimum wage, they are told, employment will inevitably fall, perhaps precipitously. Requirements for vacations, too, might crash the job market. (Never mind that dozens of other prosperous countries mandate paid vacation time.) Technocrats of the center left complain about employer-sponsored insurance as a dreadful distortion of the labor market. Sick pay, family medical leave, maternity and paternity leave—all have been blasted by one economist or another as a drag on economic growth and employment levels. “You are only hurting the people you are trying to help,” labor activists are told, again and again.

Such models are intuitively plausible, thanks to what James Y. Kwak has called “economism:” simplistic perspectives resulting from mechanical applications of supply and demand models to complex social phenomena. In general, the more costly something is, the less consumers will demand it. That reasoning leads, in turn, to more sweeping claims about the need to deregulate labor markets. If there is one policy issue most likely to consolidate bipartisan consensus among economically minded technocrats, it is a suspicion of barriers to entry in the workforce, including occupational licensure and “credentialization.” They lament the former as a paradigmatic example of state power hijacked by private interests to enrich themselves. Credentialization is framed as a market failure: The unjustified preference of bosses for workers educated in ways not directly related to the tasks they will be performing at work.Supply and Demand diagram. Demand has negative slope. Supply has positive slope. further explained below

The bottom line of this economism is grim. To the extent the state requires certain qualifications of workers, or workers themselves demand time off or other entitlements, there will be fewer jobs. Economist Tyler Cowen asks whether “whether workers might not enjoy ‘too much’ tolerance and freedom in the workplace.” While cash wages are taxed, “perks” are not, so employers will be tempted to oversupply perks at the expense of wages (or, even more troublingly to neoclassical diehards, at the expense of shareholders).

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Environmental Trumpism at Bears Ears

Jedediah Purdy – 

The enormities keep coming. The Trump Administration is especially busy in environmental and natural resources law, where the executive branch can get a lot done without Congress.  There’s the elimination of the Clean Power Plan, the revival of offshore drilling, withdrawal from the Paris Agreement on climate change, repeal of rules to protect streams from mountaintop removal and to protect people from mercury, an overall directive to open public lands to mineral extraction wherever possible, and a proposal (scotched by FERC) to finance a giant purchase of coal reserves with utility customers’ fees. The Administration has adopted the slogan “Energy Dominance” for its policies (sub-slogan: “When energy independence isn’t enough”).

Cliff formations at Bears Ears National Monument

Environmental policy pretty well crystallizes two of the Trump Administration’s distinguishing qualities: corruption and ethno-nationalism. On the corruption tip, there’s the positive eagerness to hand over the resources of the public domain to the fossil-fuel industry and give environmental cost breaks to mining companies and everyone else. It’s as likely as not that there will be some scandals in the bidding process and so forth before this is done; but the real thing here is what Zephyr Teachout calls “structural corruption”: This Administration identifies with the extractive industries and their interests, and will happily see the world through their eyes (which is say, in keeping with their bottom lines).

As for nationalism, this Administration’s trick is to turn anything—anything—into a version of right-wing identity politics. When EPA director Scott Pruitt announced the end of the Clean Power Plan, he did it in Hazard, Kentucky, flanked by coal miners, and announced, “The war on coal is over.” The “war on coal” is a story the coal industry has been telling mining communities for a decade now: that they’re under mortal attack by liberals who don’t respect hard work and want to wipe out their way of life. Trump’s has turned extractivism into an icon of his ethno-nationalism.

These themes also intersect in a major fight over western public lands. On December 4th, 2017, Trump announced he was stripping 1.15 million acres of land, about 85% of the total area, from the Bears Ears National Monument in southern Utah. Barack Obama had created the monument just a year earlier. The same day, Trump also announced a major reduction in Grand Staircase-Escalante National Monument, in the neighboring county, which Bill Clinton created in 1996. Coal, uranium, and some oil and gas exist throughout the region, and if the change goes through it will be another symbolic stroke for Energy Dominance against the War on Energy.

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No Servants, No Masters

Brishen Rogers –

Earlier this week, a Politico piece by Eric Posner (Chicago Law) and Glen Weyl (Microsoft Research) started to bounce around in progressive labor and twitter circles. It’s entitled “Sponsor An Immigrant Yourself,” and proposes  a new “Visas Between Individuals” program through which, they assert, “native workers rather than corporations” could reap the benefits of liberalized immigration.

Weyl has already expressed regrets about the tone and title of the piece, but has said that he “stands by the argument.” Tone and title aside, however, the proposal itself replicates many of the worst aspects of existing guestwork programs – so much so, in fact, that it could relegate many migrants to debt servitude.

Here’s the core of the proposal, in Posner and Weyl’s own words:

Imagine a woman named Mary Turner, who lives in Wheeling, West Virginia. She was recently laid off from a chicken-processing plant and makes ends meet by walking and taking care of her neighbors’ pets. Mary could expand her little business by hiring some workers, but no one in the area would accept a wage she can afford. Mary goes online—to a new kind of international gig economy website, a Fiverr for immigrants—and applies to sponsor a migrant. She enters information about what she needs: someone with rudimentary English skills, no criminal record and an affection for animals. She offers a room in her basement, meals and $5 an hour. (Sponsors under this program would be exempt from paying minimum wage.) The website offers Mary some matches—people living in foreign countries who would like to spend some time in the United States and earn some money. After some back and forth, Mary interviews a woman named Sofia who lives in Paraguay

Sofia, who grew up in a village, has endured hardships that few Americans can imagine. She is eager to earn some money so that she could move to her nation’s capital city and get some vocational training. A few weeks later, Sofia arrives in Wheeling, after taking a one-week training course on American ways. If things don’t work out, the agency that runs the website will find a new match for Sofia, and Mary will find someone new as well.

Each family would be permitted to sponsor up to four migrants through this program, thus boosting their income by $10,000 to $20,000. “The reason,” they explain, “is that migrants to the United States usually increase their wages many times, allowing them to pay as much as $6,000 to hosts for sponsorships.” In addition to dog walking or household labor, Posner and Weyl imagine other uses to which migrants could be put – and here I use the passive voice intentionally – including leasing them out to factories, farms, or other businesses.

Posner and Weyl are surely well-intentioned. The notion that liberalizing immigration (if not in the way the authors propose) would have important poverty-reducing effects on a global scale has strong support in the literature, for example in the work of Dani Rodrik. The authors also want to ensure that the benefits of immigration to extend to non-elites rather than being captured by shareholders of companies that hire immigrants, which is a laudable goal.

But the proposal seems to tolerate or even embrace various practices that labor migration scholars and worker organizations have roundly condemned, including restrictions on migrants’ ability to leave abusive employment relationships, and toleration of migrants’ purchasing the right to enter the country. As a result, the proposal would not actually grant migrants any real freedom to enter and compete in our labor markets. Indeed, many could end up having to pay off a debt through work — which is the legal definition of peonage, or debt servitude.

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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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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