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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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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Amy 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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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”).

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 4^th, 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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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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