Weekly Roundup: July, 2020

This week at the blog…

we began a symposium on the legal representation of poor people, part of our ongoing conversations of LPE praxis.

Helen Hershkoff and Stephen Loffredo kicked off the symposium by explaining why they wrote their manual for providing legal services for people with low incomes and how they understand the sort of legal practice a manual ought to call forth.

John Whitlow reflected on the vital role of attorneys for low-income people but the contradictions that come with the role service provision within an oppressive system.

Julia Hernandez argued for the necessity of radical self-education, humility, and willingness to be a thorn in the side of non-profit organizations that serve to reproduce oppression.

The discussion will continue next week, so stay tuned!

 

And here’s the treasure we’ve dug from elsewhere on the internet:

Sarang Shah:

It looks like postal banking is once again in the news this week. A fine idea that! Friend of LPE, and featured speaker at this week’s LPE summer series (register at the link!), Mehrsa Baradaran takes us through the virtues of postal banking, including redressing racial and income inequality, in this essay at the Harvard Law Review Forum.

Relatedly, why not just institute accounts at the Federal Reserve? Lev Menand, John Crawford, and Morgan Ricks have written a brief, persuasive argument for why Fed Accounts are easy, just, and dare I say, even fun.

Did you know that the US federal government regularly assesses prices and competitive injuries? I certainly didn’t! (h/t Sandeep Vaheesan) As just one example, the US International Trade Commission maintains this database of import injury determinations that makes for an endless supply of evening readings to go alongside your nightcap, plush reading chair, and cozy fireplace. I’ve been trying to develop a heuristic framework for how one can determine whether a practice ought to be fair or unfair given the founding principles of antitrust law. If, as Duncan Kennedy once put it, “competition is legalized injury,” I have a feeling this database will help with thinking through such a tort law-like heuristic.

Finally, Ron Knox of the Institute for Local Self-Reliance has written a great piece in Slate about consolidation in the beer industry, the use of anticompetitive exclusive dealing arrangements among the two duopolistic distributors, and how it harms independent craft brewers, consumers, and even American democracy.

Anna Wherry:

It’s baffling how, during a pandemic, hospitals are finding themselves in the red and laying off workers. Adam Gaffney’s article in the Baffler explains why. The article provides a brief history of hospital financing and capitalism in the United States (tldr: we went from something called “per diem” rates to diagnostic related groups, or DRGs–a concept invented by Yale researchers–in the 80s to try to increase competition, cut the length of hospital stays, and keep down costs.) But–*surprise*–hospitals operating under a logic of neoliberal capitalism exploited DRGs to maximize profit. DRGs also meant that patients who choose elective procedures are profitable for hospitals while those who need drug treatment or primary care are not. This system of financing leaves hospitals in the lurch when elective procedures are eliminated during a pandemic. It also creates inequalities between hospitals. These inequalities are, in turn, impacting COVID outcomes, as this recent article in the NYTimes reveals. Gaffney, who is the president of Physicians for a National Health Program, offers a solution: “we must move forward to full public financing of hospitals, not as commodity-producing factories, but as social institutions, with guaranteed annual global budgets that could be used for the care of hospitalized patients and the provision of community care services alike.” 

In North Carolina, one of thirteen states that refused to expand Medicaid under the Affordable Care Act, organizers with Down Home are making headway in their campaign to reverse this decision. Organizers attribute their success in part to how the pandemic has opened people’s eyes to the need for insurance not attached to employers as many residents in the state have lost jobs. 

Not on my beat (I can’t help myself), but this podcast episode on a popular diversion program in San Francisco caught my attention. I worked for a summer at a federal defenders office and had the chance to observe a diversion program for young defendants. Although the programs are undeniably better than incarceration–people aren’t, at the very least, locked in cages and separated from their networks of support–the programs often stretch on for years, make questionable demands of their participants, and deny procedural rights and guarantees in the name of “non-punitive” justice. This podcast implies that as we continue conversations on defunding the police we should continue to be aware of other institutions that have policing functions.

Caroline Parker:

On Monday, a federal judge ordered the Dakota Access Pipeline shut down for good, ending a legal and political battle that began more than four years ago. The DAPL story is a case study in the relationship between law and organizing in the era of climate change. In this article/post following the 2016 resolution of the Keystone XL case, Ted Hamilton (of Climate Defense Project) discusses what that seven-year battle revealed about the role of litigation in the climate movement. The two pipeline cases aren’t identical, but his reflections on tactical delay and politics resonate today.

I was delighted to encounter this piece from Astra and Sunaura Taylor asking why leftists haven’t organized in opposition to the meat industry. Like oil&gas, industrial animal agriculture is so terrible for workers, animals, human health, and the climate–it seems obvious that the left should be unified in opposition.  If you’re as into this argument as I am, you can hear more on Astra’s interview with the Hot & Bothered podcast in April.

Luke Herrine:

Maybe you saw the video of the “Trader Joe’s Woman” freaking out for being told to wear a mask (one of many such circulating the Twitterdome)? You didn’t? Well, then you’re like me. I didn’t watch it because I thought I knew everything I needed to know about it from the description. Turns out not. Tressie McMillan Cottom wrote a deft essay on how that video illustrates the way the anxiety that comes with constant lockdown, heightened saliency of death, and ongoing institutional failure interacts with the anxiety of downward mobility and how *that* interacts with the racial character of class mobility in the United States. Her analysis of the importance of consumption-based status clinging to this dynamic is especially profound.

Another great essay that ties many things together (like that transition??) is this recent scholarly article by Erin Lockwood on the “International Political Economy of Global Inequality.” Given the title, readers of this blog are contractually obligated to click and read, of course.

Weekly Roundup: June 3, 2020

This week at the blog…

the conversation on the relationship between socialism and constitutionalism (started by Willy Forbath last week) continued.

Sanjukta Paul explored the implication of the inevitably constitutive role of law in economic coordination for the relationship between economic regulation and structural constitutionalism, providing a drive-by revisionist account of the National Industrial Recovery Act and Schechter Poultry, the Supreme Court case that struck it down.

Blake Emerson drew out some connections between the Weimar Constitution and the Progressive and New Deal reforms that created the modern administrative state and analyzed implications for the relationship between economic democracy, administrative law, and constitutionalism.

We also cross-posted (returning hero) Kate Redburn’s quick take on Bostock, which originally appeared at Jacobin (and featured in last week’s weekly roundup).

AND! We announced our summer webinar series, “Mapping U.S. Law and Political Economy” and spread the word about an amazing conference on law, money, and technology hosted by our friends at APPEAL and YSI.

 

And our hand-picked tasting menu from around the internet:

Sarang Shah:

I often enjoy reading a review of a book without ever feeling a need to read the book itself. Call it a reverse Borges: rather than write a fictitious review of a non-existent book that I myself would have liked to have written, I would rather read a good review of a book that I know I’ll never allot the time to actually reading. 

This is not one of those times. The reviews for a new book, Trade Wars are Class Wars, by Matthew C. Klein and Michael Pettis, have made the book itself sound like its worth an attentive read from start to finish. The book presents a narrative-focused account on international macroeconomics as an influential structuring agent over microeconomic choices and domestic political movements. Most excitingly, the book helps destruct common myths about international macroeconomics, such as the necessity for the United States to become export-oriented nations again to overcome its current account deficit, or the virtuosity of Germany’s export-driven thrift. The thesis of the book is as plain as the title, and I look forward to diving into the book over the coming weeks.

On a different note, I’ve also been diving into the possibility of antitrust enforcement against platform most favored nation (MFN) clauses, as per this essay by Jonathan Baker and Fiona Scott Morton. Like exclusive dealing arrangements, MFNs are contractual clauses that dominant firms use to restrain less dominant firms in how they dispose of their product or conduct their business. In this case, MFNs are used by internet market platforms, like Amazon and Doordash, to prohibit firms who sell their product over these platforms to offer these same products at a lower price over another platform, their own website, or even at their brick and mortar store. This reading is part of an overall project to try and piece together a coherent vision of a fair economy one practice at a time, using antitrust law as one tool in a broader toolkit for achieving greater economic democratization.

Isabel Echarte:

Dove into some anxiety-inducing reads on the state of the COVID-19 economy–you know, for fun. James Galbraith argues that the federal government’s stimulus efforts are failing because of long term structural changes in employment, consumption, and household debt: “This economy was in many ways prosperous, and it provided jobs and incomes to many millions. Yet it was a house of cards, and COVID-19 has blown it down.” And if you really want to get into the nitty-gritty of the stimulus efforts (specifically, the Fed’s), check out Nathan Tankus’s wildly popular newsletter. Bloomberg just profiled him for that work–the article provides some good background for folks unfamiliar with Nathan, though we didn’t need Bloomberg to tell us he’s excellent. 

Don’t you worry, I’ve also included some positive news: Mehrsa Baradaran’s Color of Money inspired Netflix’s CEO to put the company’s money in banks serving black communities. Very exciting! You should read the book (I’m currently going through it now and can vouch for at least the first 80 pages). Until you get your hands on the book, Mehrsa has also published an op-ed: she describes the banking sector’s failure to serve and benefit the majority of Americans and makes the argument that “[p]ublic markets can take over the places that private markets have failed to adequately serve.”

Lastly, Katharina Pistor reviews Thomas Piketty’s Capitalism and Ideology: “Missing . . . is a deeper appreciation for the less visible processes of institutional change. These processes often work at cross-purposes to the big ideas that motivate social and political movements or legitimate the actual allocation of power and wealth. Such change may be incremental and difficult to detect with the usual tools of an empiricist. But that does not make them directionless or less relevant. In fact, strategic, well-resourced actors constantly push for change outside the limelight of politics and ideology, and often claim the authority of the law to fend off critique and legitimize success.”

Anna Wherry: 

On the public health beat:  

Not completely “law” and political economy, but this piece on the “shape” of epidemics is fascinating: the hydraulic metaphors we use to describe waves shape our responses to epidemics and other public health emergencies. The article traces how waves became a language for talking about epidemics, a device for data visualization, and a tool of governance. Hydraulic metaphors, while helpful, can also “obscure the ways that what we often call natural disasters are not physically autonomous—something we simply must accept—but rather deeply shaped by human action, both before such disasters hit and as they are managed. This is especially true of epidemics, which are strongly contoured by measures societies take—or fail to take—both to prevent impending epidemics and to mitigate their effects when they strike. We also know that risk is not evenly distributed across the social world but instead follows structures of inequality, by class, race, gender, nation, and many other axes of difference—facts not well captured by the most pervasive diagrams of COVID-19, with models, predictions, and waveforms that focus solely on infection and death counts over time.”

And these two pieces on public health responses to COVID and Native American tribal governance. This essay in the Stanford Law Review argues that tribes should have regulatory powers over nonmembers in Indian country during a pandemic. Not only have federal courts made it difficult, although not impossible, to regulate nonmembers on tribal land, impacting tribal governments’ responses to the Coronavirus. The U.S. government’s aid to tribes as part of the CARES act was also inadequate. The federal government allocated funds according to U.S. Census data and not tribal government’s own membership numbers–and Bureau estimates that it undercounted tribes by nearly 5 % in the 2010 census. As the article argues, “the same coronavirus that highlighted the necessity of an accurate count is threatening to condemn the roughly one million Native Americans living on reservations to 10 more years of political underrepresentation and economic insecurity.” At present, self reporting census data on tribal land remains low–sometimes below 5%–and the federal government has not taken steps to collect the remaining data safely and respectfully.

Luke Herrine: I haven’t had much time for internet reading this week (beyond the deluge of Supreme Court decisions), but I have been reworking an article in which I try to bring some of the spirit of moral economy into modern consumer protection law. So I’ve been looking back at some articles on the topic (y’all don’t need the original E.P. Thompson piece or James Scott’s famous intervention). To me the most clarifying article is William Boyd’s synthesis of the scholarship on “just price”, which also traces some of the unacknowledged influences that just price thinking has had on modern regulation. It’s an article that will guide my reading as I dig deeper into the history of moral economy and just price. From a different angle, Marion Fourcade’s SASE Presidential Address deconstructs and rebuilds the idea of “moral economy” in multiple ways–pulling together important work from sociologists like Vivana Zelizer and Jens Beckert on the moral work that goes into economic action. This economic sociology literature has come closest to confrontation with legal reasoning–and consumer protection!–in the ongoing work of Barbara Kiviat, whose article on how state-level insurance regulators have interpreted what counts as “fair” in car insurance underwriting (this builds on Barbara’s previous work on how algorithmic anonymity of credit scoring interacts with the human need for reason giving). There’s much more to dig into, of course. I’ve finally begun reading Chris Desan’s masterful book on money design in England, and, wouldn’t you know it, it provides fresh perspective on moral economy and the social construction markets.

Caroline Parker:

As governments ramp up recovery spending, it seems like everyone recognizes the opportunity to advance decarbonization and adaptation goals. Here some ideas for “just recovery” spending that I found especially imaginative and fun to read:

On Tuesday, House Democrats unveiled their long-awaited climate plan. The plan sets some ambitious domestic targets, including a national price on carbon, a national net-zero emissions goal, and consistent clean energy standards. But some in the climate movement say it doesn’t go far enough: it does not include a ban on fracking, a ban on fossil fuel exports/imports, or a moratorium on pipelines. It is also silent on crucial questions about global governance and cooperation. The COVID pandemic has given rise to several good pieces exploring the connections between zoonotic disease and meat consumption (think headlines about “wet markets”) as well the brutality of the meat industry for workers (think massive outbreaks in meatpacking plants) . With this week’s headlines about another “pandemic potential” flu that originated on pig farms, the case against factory farming seems stronger than ever. I am thinking  anew about Michael Pollan’s recent NYRB piece on our broken food system.

Weekly Roundup: June 18 (Juneteenth), 2020

Happy Juneteenth, everybody. See y’all in the streets.

Look, we’re doing our second weekly roundup in a row! Surely this will last forever.

This week at the blog:

Brian Highsmith (returning LPE champion) explored the promise of and barriers to restructuring state budgets in this abolitionist moment.

Amna Akbar reflected on the abolitionist moment at the New York Review of Books, and we cross-posted.

We announced an exciting event–the second in our summer video series–on how law constructs (and might deconstruct) geographic inequality, featuring Team Vanderbilt: Ganesh Sitaraman, Morgan Ricks, and Christopher Serkin. Sign up to join us!
And here’s some oases we’ve been relishing elsewhere in the vast wasteland of the WorldWide Web:

Anna Wherry:

Sunaura Taylor writes in The Boston Review, on the imbrication of human and non-human animals and how and how we must think of public health and environmental protection as problems to be addressed together. In the early twentieth century, environmental health, public health, and occupational health were considered to be one discipline; separating these into discret fields has had implications for the working class and poor. Taylor challenges the U.S.’s approach to the pandemic that denies connections and interdependencies and pushes us to “rethink the separation of human health from the health of our environments and social welfare systems.” 

Julia Marcus and Gregg Gonsalves explain in the Atlantic why it’s imperative that public health experts support Black Lives Matter protests. Gonsalves offers protesters some specific lessons from the ACT UP era in his interview with New York Magazine

The Marshall Project on why fears that child abuse might be secretly rising during the pandemic could lead to further policing of communities of color.

Outside my beat, but…

Paris Marx in Jacobin proposes using the current crisis in public transit to nationalize and redirect resources away from air toward rail and bus.

Atiya Husain argues that international counterterror and counterinsurgency campaigns should be washed away in the abolitionist wave.

Caroline Parker:

Amidst proposals to transfer police authority and funding elsewhere, Dorothy Roberts warns against reforms that would redirect power to health and human services agencies. Like the criminal legal system, the “foster industrial complex” functions to “regulate millions of marginalized people through intrusive investigations, monitoring and forcible removal of children.” Reforms that would grow CPS trade one set of carceral institutions for another. 

ProPublica reports on the separation of Native American mothers from their newborns under targeted zipcode-based screening policy for COVID-19. For tribal advocates, this policy evokes a long history of Native American child removals justified by pretextual concerns about child safety.

During the last few weeks, many “big green” organizations have reckoned publicly with the history of white supremacy in mainstream environmentalism and released statements of solidarity. For a deeper dive into this history, check this 2015 article by LPE’s own Jed Purdy on the racist roots of the conservation movement.

Essayists Mary Annaïse Heglar (@MaryHeglar) and Amy Westervelt’s (@amywestervelt) write funny, poignant, and terrifying things about the climate crisis. Their weekly Hot Takes digest, which usually requires a subscription, is free this week.

Luke Herrine:

If you have any interest in monetary policy–or curiosity about how much of the federal response to the economic crisis brought on by COVID has been carried out by the Fed–you must already be reading friend-of-the-blog Nathan Tankus’s Substack religiously. To get a sense of his sharpness, check out his fisking of eminent banking law professor Frank Partnoy’s article arguing that we may be facing a looming crisis of securitized corporate debt in The Atlantic. After Partnoy responded on Twitter, Nathan followed up.

Nathan also wrote a well-argued and provocative piece in the American Prospect this week–which has been running an excellent series on COVID policy response, by the way–about how riots produce good economic policy by instilling fear into economic policy makers. We almost got him to post it here at The Blog. Better luck next time!

Speaking of The Blog, former Fearless Leader (whose huge shoes I currently try to fill) Kate Reburn just published an elegant piece explaining the importance of the Bostock decision over at Jacobin. Kate has also promised us some exclusive Bostock-related Blog content!

Over at our semi-rivalrous (and relatively autonomous) sibling blog, Legal Form, August Nimtz asks why there is no police brutality in Cuba and what that says about the comparative civil liberties records of the US and its tenacious Communist neighbor.

Sarang:

Exclusive dealing agreements are a way dominant firms restrain less dominant firms in a variety of business activities: buying from other sellers, selling to particular buyers, charging a different price for certain products or services, and even the way the business itself is run (opening hours, branding, what workers are paid, etc.). 

Often used by powerful franchisors like McDonald’s or Quiznos on less powerful franchisees, a growing body of work has raised awareness of both the harm these agreements pose to workers (especially those classed as independent contractors) and small businesses, and the ways antitrust law has historically (and still could) redress this imbalance of power.

In “Antitrust, the Gig Economy, and Labor Market Power,” economist Marshall Steinbaum discusses how by muddling the legal boundaries of the firm, exclusive dealing arrangements weaken the protections afforded by labor law to workers while also leaving workers who seek to organize themselves more susceptible to antitrust violations.

Brian Callaci of the Washington Center for Equitable Growth explores the legal creation of franchising, noting that business form franchising as we know it today would not exist were it not for political pressures on the Small Business Administration to provide cheap financing to cookie-cutter franchisees and a loosening of per se illegality of vertical restraints by the Supreme Court (under the growing influence of Chicago School doctrine).

Finally, ever wonder why antitrust law is hostile to proto-unions of local piano tuners, but perfectly happy to let giant pharmaceutical companies merge into a giant behemoth? Sanjukta Paul plumbs the history of antitrust law in the formative era (as in James May’s classic study) and beyond to revive the idea that antitrust law primarily serves to allocate economic coordination rights. Recently called the “Ronald Coase of our time” by an esteemed colleague, Paul’s work is a must-read for understanding the LPE horizon of antitrust law.

Isabel Echarte:

Because government budgets and funding priorities have come under intense scrutiny as activists demand that officials #DefundthePolice, I was reading up on state and local budgets. Amna Akbar’s piece in the NYRB (which we posted about earlier but which deserves another mention) outlines how decades of activism and organizing have put prison abolition on the “horizon” while drawing attention to the disproportionate share of local budgets dedicated to policing. 

But beyond learning how the spending of local dollars became politicized, I wanted to read up on how that revenue is raised. Last month, Andrew Kahrl wrote about how some municipalities have used property taxes sales and tax lien foreclosures to target low income communities and communities of color: he says, “Thurgood Marshall characterized tax sales as a form of racialized plunder, which he lamented, ‘is almost completely within the letter of the law.’” Many cities will sell delinquent taxes in bulk to debt buyers who can often collect exorbitant interest rates, as high as 50 percent, and foreclosure on homes when the owner is just a couple hundred dollars behind on taxes. 

And in 2015, Walter Johnson traced how Ferguson, Missouri came to rely “on its cops and its courts to extract millions in fines and fees from its poorest residents. These readings also made me think about Ruth Wilson Gilmore’s classic Golden Gulag–which points to the California budget’s (right wing) politicization as one reason behind the development of the carceral state. And to close with a small nugget of something hopeful: check out how the Federal Reserve can solve all state and local governments’ budget woes. If it wanted to (yes, there is a magic button that can solve all our financial woes).