Constitutional Law 101: A Primer for the Law and Political Economy Blog

K. Sabeel Rahman-

Part I: Constitutional Law as a Political Economic Battleground

For students and scholars interested in questions of political economy, inequality, exclusion, and power, conventional black letter law classes can often be daunting. The volume of case law and the compressed time of the semester can often squeeze out more thematic and critical discussion of these themes. Furthermore, the selection of cases covered and the focus on current legal doctrine may not always highlight fully the contingencies, roads not taken, and the normative and structural stakes of these legal debates. This page, like others in the “Law and Political Economy 101” series, offers a primer on constitutional law from the perspective of political economy. There are of course many different ways to approach a constitutional law curriculum centered on LPE themes; this series represents one possible approach.

This primer is designed to be a companion to a standard semester-long class on Constitutional Law covering Federalism, the Separation of Powers, and the Fourteenth Amendment. Beyond the doctrinal developments and case law, any constitutional law course raises several key overarching themes. Note that this primer does not address issues around First Amendment doctrine and courses focusing on speech and religion questions. This first post of three highlights themes that I explore in subsequent posts.

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Racism is at the Heart of the Platform Economy

Daria Roithmayr –

This post argues that race and racism are segmenting the new “on demand” labor markets, in ways that facilitate the transition to this new sector of the economy.  Scholars of racial capitalism have argued that modern capitalism could never have gotten off the ground without the violence of slave labor in the cotton economy. Violent racism operated to segment plantation workers into free and unfree labor, and unfree labor made cultivating cotton in bulk possible, facilitating the transition to industrialized cotton production and then to industrialization more generally.

Likewise, I argue here that race and racism are segmenting the new labor markets into more free and less free labor, and that this segmentation plays a central role in the transition to the new economy.  Platform-based “on demand” service firms like Amazon and Instacart rely for their flexibility on a core of so-called “motivated” gig workers—workers whose economic survival depend on gig work. As it turns out, these workers are “motivated” because they are workers of color who are less free to turn down unstable work, or to bargain for a wage premium for doing risky, back-breaking or otherwise odious work. As we’ll see, race does very important work in constituting this segment of the workforce, and in keeping this core of workers “motivated.”

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Job Announcement: Executive Director of the Law and Political Economy Project

We are thrilled to announce our search for the inaugural Executive Director of the Law and Political Economy Project. Details below, and please share widely. Download the announcement here. We also welcome applications for the part-time blog editor position, posted here.

The Law and Political Economy (LPE) project at Yale Law School seeks a full-time Executive Director (ED). The ideal ED will play both a scholarly and organizational role.

The LPE project is a network of scholars, practitioners, and students working to develop innovative methods at the intersections of legal, political, and economic ordering, with special attention to democracy, economic inequality and power, and racialized and gendered inequality. We seek to make our work relevant to judging, advocacy, policy, and politics as well as scholarship more traditionally understood, and see our initiative as, in part, a response to the fraught political moment and an attempt to understand and address the longer-running problems that have contributed to it. This grant-funded initiative is housed at Yale Law School, and will coordinate closely with other key hubs of legal scholarship and advocacy, including Columbia Law School, Demos, and others.

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Anti-State Statism and Slumlord Capitalism

John Whitlow –

Ruth Wilson Gilmore has written that “we are faced with the ascendance of anti-state state actors: people and parties who gain state power by denouncing state power.” This tendency surfaced in the wake of the economic and legitimacy crisis of liberal capitalism in the 1970s, and has gained strength in the decades since, taking hold in both major political parties and surviving a catastrophic financial collapse a decade ago. The Trump administration is the most garish and contradictory iteration yet of this tendency: [1] an agglomeration of race-baiting grifter capitalists intent on slashing the last vestiges of the safety net while at the same time expanding the carceral and militarized functions of the state. I have argued elsewhere that it is useful to view the current administration as the federal-executive embodiment of the unscrupulous landlord. In this post, I will examine the administration’s particular brand of anti-state statism through the prism of the Trump family’s real estate practices.

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Job Announcement: Half-time Blog Editor and Coordinator

Good news, LPE readers:  We are looking for a part-time blog coordinator, to help us continue and expand the work of the blog.  Details below, and please share widely. Download the announcement here.

A grant-funded initiative housed at Yale Law School and affiliated with Demos and Columbia Law School (and others to come) seeks a half-time blog editor and coordinator, for the recently launched “Law and Political Economy” blog (lpeblog.org).  The blog is the first initiative of a growing Law and Political Economy project, and is substantively edited and managed by a consortium of faculty and students. The site hosts commentary, analysis, and dialogues on law, politics, and economics with a progressive and egalitarian orientation. The blog editor will be responsible for all administrative matters including: generating (in collaboration with the substantive editors) and maintaining a schedule of publication, communicating with contributors about all scheduling and administrative matters, copy-editing content, and routing unsolicited and proposed posts from readers to the substantive editors. The blog editor will also do basic trouble-shooting and maintenance on the site and show initiative and creativity in promoting the content through social and traditional media. We particularly welcome applicants with interest and training in our topics who may be able to assume certain more substantive editorial roles, as well as help guide authors on writing in this format, and extending their ideas in other media (both traditional or “new” / “social”).

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“Hey Google, What’s a Strike?”

Brishen Rogers —

What's a Strike

Yesterday morning, tens of thousands Google employees walked off the job in Dublin, London, Singapore, Zurich, Haifa, Berlin, New York, Ann Arbor, and many other cities. The immediate spark for the protests was revelations that the company had given generous exit packages to a few executives credibly accused of sexual misconduct, including one accused of “coercing [a subordinate] into performing oral sex” in 2013. But the workers also have broader, more longstanding grievances with the company’s leadership regarding gender equality: as the Times reported, “tensions over the treatment of women in the workplace have simmered for years…with disrespectful remarks coming from executives and the rank and file alike.” Plus, many Google employees have balked at the company’s participation in Department of Defense projects and its development of a censored search engine for the Chinese market. Given this widespread discontent, support for a walkout went viral: organizers said a few days ago that they expected around a thousand workers to participate, but instead it now appears that tens of thousands did so.

What to make of all this? At first glance, it may seem sui generis—a sudden expression of outrage by workers who feel Google hasn’t lived up to its own values, particularly in the era of Me Too. But I think it is more than that: yesterday, Google went on strike. The walkout resembles other recent strikes in non-unionized workplaces, including the recent “Red for Ed” teachers’ strikes and the “Fight for $15.” In that regard, it highlights both strengths and weaknesses of U.S. labor law, and suggests broader lessons for students of law and political economy.

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“As if the Last 30 Years Never Happened”: Towards a New Law and Economics, Part 2

Suresh Naidu and Elliott Ash —

Our previous post dealt with the outsize influence of well-funded conservatives at the interface between economics and law, and in particular over the judiciary. This influence is the product of many decades of institution-building, which includes the adoption of a particular (and in our opinion outdated) approach to economics in legal research and teaching. Addressing the analytical imbalance requires an articulation of and investment in an updated approach to economics. This post introduces some idea of how such a modern law and economics might look, and highlights the diverse normative implications of state-of-the-art economics. As we will see, taking economics seriously is consistent with many different policy positions.

The place in law where economics has made its biggest impact is probably antitrust, where doctrine was transformed over the course of the 1980s. The key doctrinal achievement of this movement was the consumer welfare standard, based on the canonical economic model of monopoly. Mergers among previously competing firms will increase market power but may also lower costs, with potentially ambiguous effects on price. The doctrine states that the legality of mergers should be judged based on net benefits to consumers, with no attention paid to the distribution of returns across producers or factors of production (e.g. capital and labor).

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“As if the Last 30 Years Never Happened”: Towards a New Law and Economics, Part 1

Suresh Naidu and Elliott Ash —

In our experience and in that of others, left and progressive legal scholars tend to view arguments rooted in economic reasoning with a deep skepticism. This suspicion is understandable, given that law and economics was birthed by the foundations and political entrepreneurs of economic conservatism. Our empirical work on economics training for federal judges, summarized below, demonstrates just how sizable—and quantifiable—has been the conservative impact of law and economics.

Before getting to this evidence, though, we ask that “economics” as a whole not be conflated with the 1970s University of Chicago economics department – any more than legal scholarship as a whole should be conflated with the University of Chicago Law School faculty during that era. The empirical research we present in this post itself exemplifies how economics can be a powerful tool for examining (and not just assuming) the relationships between the formal structure of the law and the activities of economic exchange. As we lay out further in a subsequent post, legal leftists who fail to engage with the richness of academic economics miss out on many important insights.

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“A Place to Die”: LPE in the 1970s

Karen Tani —

As a historian working in a law school, I think often about what history adds to the study of law and the training of future lawyers. Rarely does history provide an obvious road map to solving new legal problems, but it does at least two other things well: (1) it helps explain why the legal landscape looks the way it does; and (2) it illuminates the consequences of particular legal choices. This makes all the more valuable recent historical work that engages with political economy. We gain from this work a better sense of the political economies that produced our current configuration of laws. We also gain insights into how law constructs the political economy of the future—by sending signals about who will be insulated from the vicissitudes of “the market” and who will be exposed, whose rights can be bargained away and whose are too sacred, whose lives have value and whose do not.

An excellent example of this work is historian Gabriel Winant’s recent article in the Journal of American History, “A Place to Die: Nursing Home Abuse and the Political Economy of the 1970s.” Winant does not frame the piece as legal history, but law is all over the history he tells, in complex and sometimes unintuitive ways.

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Neoliberalism and Higher Education Finance: Breaking out of the Ideology

Luke Herrine —

My earlier post on for-profit colleges discussed a special instance the limits that a neoliberal lens places on a progressive vision for higher education. In this post I discuss the more general phenomenon and an alternative approach to thinking about higher education. In doing so, I draw from a nascent project that Frank Pasquale and I have been working on.

In DC policy circles one rarely hears the value of higher education discussed in any terms aside from preparing students for future employment. Whether college is “worth it” is understood as an investment proposition, and colleges are understood as offering an investment good packaged with short-term consumption benefits (parties and the like).

This is the influence of a neoliberal frame. As several of the authors of this blog have explained, neoliberalism refers to an overlapping set of techniques for justifying social ordering via markets. Common among many of these techniques is the assumption that all social ordering is actually market ordering. Once one understands the underlying market dynamics, one understands that the proper approach is to work with them rather than against them.

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