Neoliberalism: From Law to Resistance

This is the first of a series of posts on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Christine Schwöbel-Patel –

9780674979529There are two recurring themes about neoliberalism and law. One of the themes (often voiced by the Right) is that neoliberalism has become a type of bogeyman, standing in for everything privatized, profit-driven, inequality-creating. Another recurring theme (often voiced by the Left) is that neoliberalism has been entirely ignored by lawyers, who believe that what they are doing does not really relate to the de facto inequalities of the global economy. Commentators on neoliberalism therefore either consider it as tediously omnipresent or as worryingly absent. Quinn Slobodian’s recent brilliant book Globalists addresses both of these themes, providing nuance to those troubled by neoliberalism and urgency to those (so far) untroubled by it. Apart from the elucidation of neoliberalism, Slobodian also gently but decidedly points us in the direction of possible routes for reclaiming internationalism from the Globalists.

From Slobodian we learn some vital things about neoliberalism which compel more nuance in the use of the term. It should be said that what we learn does not make neoliberalism more benign, but rather it allows us to pinpoint when and how neoliberalism came to be the dominant project – and with that possible modes of resistance against it. For international economic lawyers who believed that politics and ideology are outside of the discipline’s ‘neutral’ legal structures, the book should be more than simply an eye-opener; it should lead to a profound and devastating revelation of how international economic law is deeply implicated in inequality today.

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On Reuniting Legal Realism with Moral Pragmatism

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Luke Herrine 

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In 1987 Robert Gordon recounted finding among those “in the center or left of American liberalism…this paralysis, founded in their sense that legal and social realities are frozen, that we have reached the end of history and that the possibility of fundamental change is now forever closed to us.” Gordon’s experience is not unique, of course. The critical project of “unfreezing legal reality” to make it more pliable for egalitarian restructuring has had to confront not only the legal system’s own defense mechanisms but a set of discourses that make it hard to think outside the current system.

As many members of this blog have noted, neoclassical economics has been the most powerful such discourse, but moral philosophy—even that produced by egalitarians—has been similarly unforgiving. Most debates in Anglo-American moral and political philosophy have taken place in the realm of the ideal. Political morality amounts to articulating the constitution reasonable persons would agree to ideal conditions. Legal reasoning requires “rational reconstruction” of existing institutions to understand their moral structure. Egalitarianism is about figuring out how to set up idealized (read: using neoclassical assumptions) insurance markets to correct for inequalities of luck while maintaining room for agency. The idealizations of the debates tend to vacillate between being so unlike our actual world as to be difficult to make sense of or so like our actual world as to “freeze” it by moralizing existing institutions. They may help clear up some of our ideas, but they do not give us much to work with in the project of dismantling oppressive institutions and building democratic ones in their place.

Many critical legal theorists sought alternatives in deconstructive theories, which more often than not were so totalizing that they left little sense that one anybody (except perhaps judges) could do anything productive to reshape society.

Elizabeth Anderson has been the foremost advocate of a pragmatic alternative that treats moral theory like realists treat law: as a going concern. Following a venerable American tradition starting with Peirce, James, and Dewey, she understands moral debate as happening in media res, between socially and historically situated actors attempting to make sense of their attitudes about the world in the process of acting on it. Concepts like “freedom”, “equality”, and “exploitation” evolve out of historically embedded attempts to express attitudes about certain institutional arrangement; they necessarily evolve as arrangements change and as we reflect on what we really ought to care about regarding them. Moral philosophy is merely an extension of everyday reflective and discursive practices, and, if it strays too far from those practices, it results in concepts and arguments that have little or confused relevance to the real world. The process of deciding on ends is not separated from the evaluation of available means in any given context, and both are tied to our evolving understandings of how the world works. It is a process of ongoing recalibration.

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Rethinking Public and Private Power: Anderson’s Private Government and Labor Law Reform

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Catherine L. Fisk –

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Elizabeth Anderson has gained rock star status as the leading philosopher-critic of rising economic inequality and its threat to democratic society. In her second Tanner Lecture, Anderson provides one of the most exciting theoretical justifications for labor law reform since the demise of popular interest in Marxist theory. Anderson’s work inspires me to think about the importance of worker control of access to jobs, co-determination of workplace and corporate governance, and the importance of inclusive unionism along the entirety of a supply chain.

The Industrial Revolution, Anderson says, shattered eighteenth century egalitarian theorists’ hope that “a free society of equals might be built through a market society.” Employment in large enterprises for the vast majority of workers after the Industrial Revolution, whether in a Ford factory in 1930 or in McDonald’s today, was to subject oneself to a dictatorship for most of one’s waking hours. The only real freedom the worker enjoys is to quit. The freedom to quit is not much freedom. (After all, Anderson points out, Mussolini was no less a dictator because Italians could emigrate.)

Labor unions are the only mechanism in history that institutionalized what Anderson identifies as the four essential ways to protect “the liberties and interests of the governed under any type of government.” These are (1) an effective use of the threat of exit (as by striking or enabling workers to leave a job without being blacklisted or unemployed), (2) the rule of law (effective enforcement of contractual and statutory rights to minimum standards and fair treatment), (3) substantive constitutional rights (rights at work), and (4) voice (a say over working conditions). Unions are the only institution that achieved nationwide scale and a sustainable funding mechanism to enable consistent performance of these four functions by and on behalf of workers. Other worker formations (worker organizations like ROC United in the restaurant industry or the National Domestic Worker Alliance in domestic work) could play many of these functions, and already do on a limited scale, but they have yet to achieve meaningful voice in the workplace.

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Workplace Autocracy in an Era of Fissuring

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Cynthia Estlund

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Elizabeth Anderson’s deeply thoughtful book, Private Government, aims to bring the problem of workplace hierarchy and “the pervasiveness of authoritarian governance in our work and off-hours lives” back onto the front burner of political and philosophical discourse, where it resided a century ago. She reframes the problem as one of “private government” – that is, a government “under which its subjects are unfree,” and which “has arbitrary, unaccountable power over those it governs.” “It is high time,” says Anderson, “that political theorists turned their attention to the private governments of the workplace.”

The problem of employer domination has long occupied legions of labor and employment law scholars. Unfortunately, Anderson’s welcome effort to reignite stalled debates (which I review at greater length here) might come too late, given decades-long trends in the organization of work that are transforming the landscape of work and destabilizing the very concept of workplace governance.

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Worker Voice, Worker Power

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Charles Du

anderson book coverEvery day, as in-house counsel for an activist, organizing union, I listen to workers’ stories of the indignities that come with being subject to the arbitrary power of their employers: being forced to work through breaks and lunch; facing sexual harassment from customers, coworkers, and supervisors; being fired for an offense they did not commit. It is gratifying to see these lived experiences of working people, so often ignored, being highlighted by a political philosopher of Elizabeth Anderson’s stature. By denaturalizing and challenging arbitrary and unaccountable authority in the workplace, Private Government is a powerful argument for an expansive commitment to democracy in private spaces like the workplace, where blinkered definitions of what counts as “government” have come to serve as ideological justifications for abuse and domination. Her book also comes at just the right time, providing conceptual clarity in a moment of rising social democratic sentiment and actual potential for change. I’d like to provide some reflections on practical lessons that labor law practitioners and academics might draw from Anderson’s work.

After laying out the problem of private government at work, Anderson examines four different strategies for tackling the problem: (1) exit, (2) the rule of law, (3) substantive constitutional rights, and (4) voice. She dispenses with the first three before concluding that “there is no adequate substitute for recognizing workers’ voice in their government.” I agree, but I believe that the critical question is how to achieve greater worker voice in the face of recalcitrant employer opposition, a problem that requires further attention to legal norms, constitutional rights, and worker exit.

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Democratizing the Workplace

This post opens a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Frank Pasquale –

anderson-book-cover.jpgWork can go wrong in many ways. Ship breakers in Bangladesh routinely die as they try to dismantle abandoned vessels with acetylene torches. Meat cutters in Iowa suffer repetitive stress injuries during twelve-hour shifts on carcass-filled assembly lines. Truckers can endure a modern-day version of indentured servitude, forced to pay for the very vehicles they use to do their job. Retail bosses pressure sales staff to accept lower pay so their beleaguered brick-and-mortar stores can keep up with Amazon—which maintains its own competitive edge with a workplace culture reminiscent of Glengarry Glen Ross. The upper echelons of other tech workplaces are no Elysian Fields of job satisfaction, either: An avalanche of sexual harassment claims is overwhelming Silicon Valley, and burnout is endemic at struggling startups.

It might seem odd to discuss all these problems together—for example, Amazon developers appear to have little in common with day laborers. But good social theory aims to illuminate unexpected connections. Elizabeth Anderson’s bold Private Government is a firm foundation for twenty-first-century civic education in workplace democracy. Anderson exposes the inevitably political dimensions of work. And she leaves us in no doubt that for employees the workplace is tyrannical, ruled by the whims of exploitative and mercurial bosses.

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The Failure of Market Solutions and the Green New Deal – Pt 2

Alyssa Battistoni – 

As I argued in Part I of this post, we need to rethink not only the scope of state intervention in the economy, but what exactly the economy is. Instead of focusing on the industrial manufacturing “inside” the economy and trying to clean up the externalities that inevitably spill out, we need an economic policy that takes seriously the social and ecological functions that have been treated as external to the economy altogether. That is to say—we can no longer think of things like social and ecological wellbeing as “post-material” concerns or something to address as a “justice” bonus after we’ve gotten the economy growing again. Rather, these things are fundamental to how the economy works. So how far does “industrial policy” extend, and what would it mean with respect to social reproduction and ecological reproduction, from care work to carbon sequestration? And what in turn does this mean for the future of state action?

Climate discourse frequently moves almost seamlessly between the language of the “Green New Deal” and the call for “wartime mobilization.” World War II, this argument goes, is an example of undertaking rapid economic transformation in the face of emergency. As Bill McKibben writes, “Turning out more solar panels and wind turbines may not sound like warfare, but it’s exactly what won World War II: not just massive invasions and pitched tank battles and ferocious aerial bombardments, but the wholesale industrial retooling that was needed to build weapons and supply troops on a previously unprecedented scale.” To move away from fossil fuels, we need to “build a hell of a lot of factories to turn out thousands of acres of solar panels, and wind turbines the length of football fields, and millions and millions of electric cars and buses.” We do need to build a lot of solar panels and other clean energy technologies. But that’s a short-term transition strategy—not a model for a new economy. After the war, the expanded productive capacity was redeployed again, towards mass production of consumer goods for the benefit of private capital, with serious environmental consequences. But the emphasis on building factories also fits uneasily with the New Deal analogy.

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The Failure of Market Solutions and the Green New Deal – Pt 1

Alyssa Battistoni – 

market failures.jpgFor the three decades that climate change has been a political issue, it has been understood primarily as an instance of severe “market failure”: as the 2006 Stern Review on the Economics of Climate Change explains, “greenhouse gas emissions are externalities and represent the biggest market failure the world has seen.” In other words, carbon emissions do not have a direct price, meaning that emissions send no market signals and are not included in economic decision-making. The most prominent solutions to climate change have followed this model, recommending a carbon tax or other economic measures by which to “internalize the externality” of greenhouse gas emissions—to account for the social and environmental costs of carbon. Pricing carbon is supposed to make fossil fuels more expensive, ostensibly creating incentives for innovation in clean energy and other green technologies, and in turn prompting a shift towards their use.

In this first of two posts, I’ll explain how this model developed, and what kind of intervention the Green New Deal represents. In short, the scale of transformation called for implies a far more robust role for the state, going beyond mere market corrections to more substantial intervention in the economy. I’m not convinced, however, that the current framing of the Green New Deal is steeped in a vision of the old economy, and doesn’t address necessary support for social and ecological reproduction. (I’ll elaborate that critique in my second post.)

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Against the Economic Pie: How “Redistribution” Limits Political Economic Analysis

Martha T. McCluskey –

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What gets lost when we describe social or environmental justice as redistribution?   This retrenches a fundamental binary—maximization versus distribution—in which maximizing logically comes first. By initially producing a bigger “economic pie,” law will be able to provide more generous slices to those who currently receive too little.

The term “re-distribution” makes explicit the hierarchical, temporal ordering of this binary. As part of a framing dualism, the term leads us to imagine that law sets up an essential baseline distribution, which afterward may be modified to advance contingent and secondary concerns about fairness, equality, or a healthy and stable environment. This presumed secondary and supplemental position leads to the common conclusion that these justice-oriented goals are best addressed not by substantive legal change disrupting the baseline order, but instead through a second-order, ancillary process of government taxation and spending.

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The Impact and Malleability of Money Design

Christine Desan –

9780674970953Mehrsa Baradaran’s book teaches us that money has a color, an arresting proposition to fans and foes of capitalism alike.   As she points out, economic orthodoxy posits that the transactional medium is itself a formal instrument:  money expresses but does not affect the value of the substances it measures.  Critics of that orthodoxy agree even as they bemoan the results:  money denies through its very impersonality the social substrate of exchange.  Against that commonsense, Baradaran directs us to consider how the institutions of money creation in the United States – commercial banks – have systemically originated money in white hands over decades.  That is, considering money as a process – asking how value is packaged into the everyday units we call dollars and injected into circulation – reveals that we have designed a market that is racially discriminatory in its very medium.

Baradaran challenges us to recognize how much determinations about money’s design matter.  That proposition is particularly striking because they are also remarkably malleable:  altering the institutions that deliver credit in money can change the way people and groups relate to one another.  I want to underscore Baradaran’s argument about the practice of black banking by exploring an alternative vision.  Only when the monetary project of the agrarian populists failed did Americans settle on the exclusionary system that Baradaran describes.  The contrast suggests that designing money is shaping community; it can bring people together or set them at each other’s throats.

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