Compatibility as Complicity? On Neoliberalism and Human Rights

Symposium on Not Enough: Human Rights in an Unequal World by Samuel Moyn

Zak Manfredi –

moyn postOver the past decade, Sam Moyn has emerged as one of the most significant critical historians of international human rights. His latest book, Not Enough: Human Rights in an Unequal World contrasts the international human rights movement’s focus on achieving “sufficiency,” (i.e., basic minimums of social goods for all) with more egalitarian conceptions of national welfare and global justice that aspired to curb the unbridled concentration of private wealth. Importantly, however, the book also insists that human rights are not synonymous with forms of neoliberal economic rationality that led to the post-war welfare state’s dismantling. This last point, Moyn avers, distinguishes his view from that of other left critics who posit a closer affinity between human rights and neoliberalism. “Human rights, even perfectly realized…are compatible with…radical inequality” – but compatibility, for Moyn, is not complicity. I want to put some friendly pressure on this latter claim, and draw out Moyn’s ostensible disagreement with his left interlocutors more clearly. (I put aside the fact that some left political theorists have ambivalently embraced human rights, but for an entry to this question, see Étienne Balibar, Claude Lefort, and Jacques Rancière).

The last two chapters of Not Enough explicitly distance its account of the human rights movement’s relationship with neoliberalism from those of left critics Naomi Klein and Susan Marks and also frame the book’s narrative more generally as distinct from the view of “Marxists.”  On the one hand, Moyn recognizes that human rights movements of the 1970s often shared “moral individualism” and “suspicion of collectivists projects like nationalism and socialism” with neoliberalism; he even acknowledges that neoliberalism “exerted [a] strong pressure of redefinition” on human rights projects (see, for instance, Quinn Slobodian’s recent work, which examines how neoliberal reformers deployed rights claims for their internationalist projects.) Yet, Moyn also insists that human rights never reverted to “narrow protections of contract and property,” and argues that, in general, human rights movements proved indifferent to neoliberal projects, rather than encouraging their aims. In contrast to his account, Moyn sees left critics as offering a harsher rebuke of human rights complicity with neoliberalism.  At different points in the text, Moyn objects that leftists blame human rights for “bringing about the age of neoliberalism,” accuse human rights of “distracting” from the growth of inequality, and see human rights as “abetting” neoliberalism’s projects. While at times Not Enough seems to conflate these various objections, it is helpful to clarify the nature of different left critiques of human rights.

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Law, Political Economy and Municipal Finance in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part IV

Angela Harris – 

There’s yet one more way I try to get students to see the mutually entangled systems of capitalism and racism presented by Fant v. Ferguson. In its 2015 report on policing in Ferguson following the killing of Michael Brown, the Civil Rights Division of the United States Justice Department concluded: “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.”

Ferguson’s reliance on law enforcement as a revenue-generating tool, however, is not unique; dependence on municipal fines and fees to fund police and court services was widespread at the time in the northern St Louis suburbs. For example, in Edmondton, where nearly one-fifth of the population lives below the poverty level, ticketing was such an important part of the city budget – comprising almost 35 percent of general revenues – that in April, 2014 the mayor put a note in some police officers’ paychecks observing a ‘marked downturn’ in the number of tickets being written, and reminding them, “the tickets that you write do add to the revenue on which the P.D. budget is established and will directly affect pay adjustments at budget time.”

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Getting the NIEO Right

Symposium on Not Enough: Human Rights in an Unequal World by Samuel Moyn

Karuna Mantena –

Samuel Moyn’s Not Enough is a pointed history of the present.  It provides a fast-paced narrative of the surprising ways we got to where we are now in our moral and political imagination of what is politically possible.  In this sense, like its precursor The Last Utopia, it is a distinctive kind of ideological and intellectual history (though not quite either), with disruptive intent. Moyn suggests that our philosophical and normative frameworks – i.e. the way we think and act on political ideals, ideologies, and possibilities – radically differ from what they were only four decades ago. More precisely, they have become radically limited and circumscribed. Not Enough usefully reflects the 1970s optimism that international law could reduce global inequality, but it mischaracterizes the New International Economic Order (NIEO) and leaves open the question of precisely how neoliberalism displaced its utopian aspirations.

In his previous examination of international human rights, The Last Utopia, Moyn argued that the ascendency of human rights was the most prominent symptom of a general decline of utopian politics oriented around broad-based institutional transformation.  Proponents of those alternative political utopias often advocated a range of rights embedded in the nation-state, and imagined the state as the agent and site of their fulfillment.   The shift to the contemporary human rights regime, in Moyn’s account, entailed the demotion of the nation-state as the site and agent of real political transformation which he described as the substitution of politics for morality.

In Not Enough, Moyn charts another vector of decline in political utopias linked to the nation-state, namely, the decline of welfare statism and its egalitarian distributive imagination. Moyn characterizes the shift not in terms of a shift from politics to ethics, as in The Last Utopia, but more substantively as a shift in the guiding principle of economic policy from the ideal of equality to the ideal of sufficiency.  Proponents of equality as a guiding principle are concerned with diminishing the gap in economic status between persons: when pursued, this involves not only lifting people up out of poverty but also limiting wealth accumulation at the top.  In contrast, prioritizing sufficiency entails focusing primarily on poverty alleviation and protecting people from the worst forms of deprivation, goals which in principle are compatible with – and in many dominant economic theories, may even require – extreme inequality.

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Legal Geographies of Racism and Capitalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part III

Angela Harris – 

In my second post on Fant v Ferguson, I highlighted the production of precarity through neoliberal state and market governance, and the crushing burden of this precarity on the poor. But the public-private creation and maintenance of precarity, of course, isn’t new. A third vantage point from which to consider Fant v Ferguson is legal geography: the way that racism and capitalism over time shape create and maintain physical spaces through processes of investment and disinvestment, development and underdevelopment, displacement and settlement. A key way into this story – as Audrey MacFarlane notes – is through the history of racial segregation in housing markets.

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Born-Again Equality

Symposium on Not Enough: Human Rights in an Unequal World by Samuel Moyn

Joanne Meyerowitz – 

moyn post

Sam Moyn’s Not Enough gives us a sweeping account of more than two centuries of the political quest for economic equality.  His history locates early calls among the Jacobins who demanded fair distribution during the French Revolution.  It moves through the nineteenth-century era of economic liberalism in Europe, when hopes for economic equality languished and human rights referred to individual liberties, and picks up in the early twentieth century when welfare states revived the quest for equality with an accompanying language of “social rights.”  Then for a brief moment in the mid-1970s, the push for equality turned global as an imagined “welfare world” with international distributive justice.  All of which collapsed in our current neoliberal era of the past 40 or so years with its more limited vision of human rights ascendant and its stunning disparities in wealth. Moyn contrasts equality with its paler cousin sufficiency.  In recent decades, he argues, the uninspiring goal of sufficiency—a bare minimum for the impoverished—has shunted aside the quest for a more robust equality.

Moyn’s a master of nuance—he’s an impressively talented qualifier—and the abbreviated plot line I just tracked erases his subtlety entirely.  (Apologies for that.)  Suffice it to say for now that Moyn shows us moments of exceptional promise in the past, all the while acknowledging the massive blindspots of earlier historical actors.  He notes repeatedly that the early welfare state redistributions were built on gender, racial, and imperial hierarchies that excluded most people from their material benefits.  His book could be (and in some ways is) a history of a world we have lost, but it’s also an impassioned call for the just world we have not yet had.

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Law and Neoliberalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part II

Angela Harris – 

In my first post on Fant v. Ferguson, I introduced the case as a story about our racialized criminal justice system. The criminal justice story, however, represents only one layer of the onion. Like its fast counterpart, the slow violence experienced by Keilee Fant is embedded in a larger system of structural economic inequality that we call “poverty.” Thomas Harvey, a co-founder of the St Louis public interest law firm ArchCity Defenders, which represented Keilee Fant in the case, has commented, “These aren’t violent criminals. These are people who make the same mistakes you or I do – speeding, not wearing a seatbelt, forgetting to get your car inspected on time. The difference is that they don’t have the money to pay the fines. Or they have kids, or jobs that don’t allow them to take time off for two or three court appearances. When you can’t pay the fines, you get fined for that, too. And when you can’t get to court, you get an arrest warrant.”

The world my students learn about in my first-year Criminal Law course contains references to the spectacles of violent black death we now associate with Ferguson, Missouri. But criminal law classes seldom touch on the mundane world represented in the Fant complaint. As criminal justice scholar Alexandra Natapoff notes, that there are really two criminal justice systems in America. There are about 1 million felony convictions in the United States every year. Meanwhile, there are about ten million misdemeanor convictions, and even more “infractions” – offenses, like traffic tickets, that are technically not crimes at all, and yet are tied to the criminal justice system through fines and fees. The felony system is a familiar, Law and Order world of grand juries, felony charges, and parties represented by counsel. The misdemeanor system produces many of the same bad collateral consequences for people who are convicted, including potential loss of state benefits, loss of employment and housing, loss of eligibility for professional licenses, family disruption, and possible deportation — but without the procedural protections available to felony defendants. Misdemeanants routinely lack access to legal representation. Their cases are handled en masse, not individually. Their claims are speedily dispensed with by plea deals that ignore questions of guilt or innocence. All the while, the individuals – black, brown, and “not quite white” – consigned by poverty to this legal underworld are treated with disdain by overworked prosecutors, judges, and defense counsel, who see them as congenitally dysfunctional “mopes.”

From this perspective, the misdemeanor criminal justice system is one element in a sprawling system of surveillance, punitive discipline, and control that makes the lives of poor people profoundly unfree. Poor people live their lives under the control of government programs that all too often start with the assumption that they are lazy, immoral, and in need of guidance and punishment. Our “welfare” system and our foster care system, for example, are built around the assumption that people receiving government assistance are likely to commit fraud. As sociologists like Kaaryn Gustafson have shown, welfare bureaucracies are so focused on punitive action that they incentivize the very fraud they punish. They are also institutionally invested in restructuring the family lives of poor people, whether the goal is to make them get married, stop them from having so many children, or keep them from having abortions – as Julie Nice and others have demonstrated.

Within this second frame, Fant v. Ferguson is a story about “neoliberalism” – an overused but still helpful word that calls attention to the shrinking social welfare state, the transmission of financial risk from government institutions to households, and the widely-held assumption that market governance is superior to democratic governance in nearly every sector of public life.

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Human Rights and Political Economy

Did the Human Rights movement fail?   In his new book, Not Enough: Human Rights in an Unequal World, Samuel Moyn responds in the affirmative. He argues that the international human rights movement narrowed its agenda to address the sufficiency of minimal provision, leaving the movement impotent in the face of rising global inequality and attacks on social citizenship at the level of the nation-state. Without indicting the movement for the rise of neoliberalism, he nevertheless highlights the historical coincidence of international human rights and “the very economic phenomena that have led to the rise of radical populism and nationalism today.” 

The question of how we got here, and which legal tools might beat back the current crisis in international human rights, animates our first LPE Blog discussion series. Encouraged by many requests from readers, we’re working to develop a more transnational conversation on the blog, as well as more sustained debates and discussions of key issues.  The series kicks off today with an introductory piece by Sam Moyn, and will be followed by responses to Not Enough from historians, political theorists, legal scholars, and human rights activists. Let us know – in the comments, on Twitter – what you think!

Moyn_Event_Photo

Samuel Moyn –

I decided to take another stab at writing a new history of human rights ideals and movements, because a few critics persuaded me that I had left the all-important context of political economy out in my first try.

Now that Not Enough: Human Rights in an Unequal World is out, it is worth explaining how I proceeded — not to forestall new rounds of criticism, but to help make sure the rise of human rights law in our time is part of the broader venture in law and political economy that colleagues and friends have launched on this fantastic blog.

The deepest question the broader venture of this blog raises — like the narrow venture my book pursues — is how best to think of law in relation to political economy. How precisely does law help organize the social world, and as what kind of causal driver or constitutive feature in comparison with others? The question matters not merely for the sake of better understanding but also, for those who care, to locate plausible levers of change. And law, of course, is just one example of something to theorize in relation to political economy. At stake in my own attempt is a history of ideals and movements, too, but they all require a theory explaining their place in the making and unmaking of social orders.

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Criminal Justice and Slow Violence in Keilee Fant v. City of Ferguson, Missouri

Ed note: This post is the first in a four-part series on Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri by Angela Harris. Look out for the subsequent posts in the weeks to come!

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri
Part I: Criminal Justice and Slow Violence in Keilee Fant v. City of Ferguson, Missouri

Angela Harris – 

More than ten years ago now, Emma Coleman Jordan of Georgetown Law Center called me on the phone and invited me to join her in what she laughingly called an act of “academic imperialism.” She wanted us to collaborate in assembling a casebook – the first in the United States legal education market, we believed – on “economic justice.”

The target of our imperialism was a bifurcation within legal education. Emma and I, at Georgetown and Berkeley respectively, saw two distinct groups of students in our classes. Social justice students took courses on critical race theory, constitutional equal protection, and civil rights, while business-minded students focused courses related to economics, like securities regulation, international trade law, business associations, tax, and banking.

One effect of this divide was that our politically progressive students tended to have little understanding of how markets and market-related institutions work. Instead, they found themselves limited to a moral language under which, for example, corporations could be denounced as “evil” but corporate power and its workings remained opaque. A second, more subtle effect of this divide was to impoverish our teaching about structural inequality. The infamous “public-private split” in legal doctrine reinforces the popular belief that market power represents freedom while government embodies coercion. A similar split, insidious in a different way, limits anti-discrimination law to individual and interpersonal relations: the “intent requirement” in constitutional and statutory law protects institutional and structural subordination. At the same time, business law courses and “law and economics” seminars seldom engage with race, gender, or other forms of subordination – save for a day or two on “corporate social responsibility.” Our imperial project, then, sought to pull down the walls, disrupting both the citadel of law and economics and the cloister of critical race theory.

Though we didn’t succeed at building an empire with our book, we did develop an approach to teaching law and political economy that LPE teachers and scholars can use today. In a series of four posts, I’ll outline that approach using Keilee Fant v. City of Ferguson, Missouri, a class action filed in federal court in the Eastern District of Missouri in 2015. In my Economic Justice classes, I use the case to teach students about ways in which structural inequality in the United States is produced by both racial domination and capitalist exploitation, and what this inequality looks like in the age of “neoliberalism.” I also use it to teach students about how legal doctrine shields this structural inequality from effective challenge, giving them a perspective on the intellectual apartheid of legal doctrine and legal education. In this first post, I explain how I use the complaint in Fant to frame a discussion of law, political economy, and the “slow violence” of the criminal justice system. Subsequent posts will discuss how I use the case to teach students to connect racial and economic inequality to the concepts of neoliberalism, legal geographies, and municipal finance. Each post presents a different way to advance the LPE project in the classroom.  Continue reading

The Second Republican Revival

K. Sabeel Rahman and Ganesh Sitaraman 

As questions of economic inequality have taken center stage in American politics, there has been a growing interest among public law scholars in questions of power, institutional design, inequality, and political economy. Scholars like Zephyr Teachout, Larry Lessig, Yasmin Dawood, and others have used concepts like domination and corruption to diagnose problems of oligarchy, inequality, and the failures of our campaign finance system. Professors Joey Fishkin and Willy Forbath, for example,

Constitutional-Convention

have explored the concepts of domination and power throughout American constitutional history as a way to conceptualize disparities of both economic and political power and the role of law in redressing those disparities. Meanwhile, scholars like Kate Andrias and Daryl Levinson have taken a functional approach to power, showing how partisanship and wealth subvert the Madisonian constitutional structure. Both of us have engaged in these debates as well, excavating the concept of domination in debates over economic inequality and regulation and arguing that economic power undermines prominent theories of how the Constitution works. We have both also argued (here and here) that economic and political democracy is essential in order to maintain our constitutional system. While encompassing a range of projects, subfields, and approaches, we view this emerging literature as, in part, constituting a second Republican Revival. Continue reading

How Shareholder Primacy Hurts Jobs and Wages

Lenore Palladino— 

The debate around stagnant wages and job creation seems well-settled: scholars point to globalization, or skill-biased technical change, or the decline of union density.  Others point to the ‘rise of the robots’, claiming that automation and technology are driving us towards a jobless future. But few consider that the dominance of shareholder primacy within America’s public corporations has contributed just as much to economic inequality as these more commonly-cited factors.

I define shareholder primacy as the shift within public companies from investing corporate profits within the firm or its workers to instead sending corporate profits back to shareholders, and, in some cases, holding increasing amounts of financial assets. Companies today care more about their financial metrics than they do about producing goods and services more efficiently over time. That’s why corporations are on track to spend $1.2 trillion this year simply rewarding shareholders by purchasing back their own stock and paying dividends.

For a current example of the dominance of shareholder primacy, take the response to the big tax reform legislation of 2017, which lowered the corporate tax rate to twenty-one percent. According to Trump and the GOP, the legislation was meant to incentive companies to create jobs. What have companies done so far? $171 billion dollars have been spent on share buybacks, whereas only $6 billion has gone to workers’ bonuses and small wage bumps. When the point of corporate activity is to return money to shareholders, investing in productive workers who can grow the business over time is beside the point.

Much of the public still thinks that America’s largest businesses function as they did in the post-World War II era: they earn profits, use those profits in part to enrich their top CEOs, and also invest in their workforce, innovation, and in better prices for us all. But somewhere along the way, in the Reagan administration, government regulations and reforms in corporate governance broke this productive cycle. Some companies focused on shareholder payouts, while others focused on profiting more and more off of financial activity. This shift was led by our industrial mainstays: the paradigmatic American firm, General Electric, earned 43% of its profits in its banking arm, GE Capital, as recently as 2014.

Firms made these choices in direct response to rising pressure from capital markets to move money out of the firm and into the pockets of shareholders, and in order to keep share prices steadily rising—choices sweetened by the fact that CEOs were increasingly paid in company stock.

When investing in a stable and productive workforce is not essential, worker bargaining power declines. Before the 1970s, American corporations paid out 50% of profits to shareholders, while retaining the rest for investment. Now, shareholder payouts are over 100% of reported profits, because firms borrow in order to lift payouts even higher.

Thus the changing nature of work—the rise of the fissured workplace and the gig economy—is driven not just by a generic drive for profit or the attributes of the “knowledge economy,” but a structural shift within corporations from a productive to financialized use of corporate cash. The relentless search for short-term profits expresses itself through squeezing employees’ pay, transforming employees into independent contractors to avoid paying benefits or pensions, and outsourcing work to contracting firms that compete to pay lower and lower wages. If firms don’t count on their employees to come up with the next big productivity improvement or exciting product idea, there’s no reason to invest in employee efficiency or longevity with the firm.

Demands on firms intensified with the rise of ‘activist investors,’ formerly known as corporate raiders. As institutional investors became large shareholders of major corporations, they pressured firms to push up share prices by maximizing short-term profits. Since such institutional investors could move their investments around easily, firms grew more responsive to capital markets than to their customers. For public companies, key regulatory and legislative changes allowed for a greater focus on stock prices. In 1982, Congress passed the safe-harbor provision for buybacks, which formerly would have been considered market manipulation. Further, the shift to allow CEO ‘performance pay’ to be deducted from corporate tax incentivized corporations to pay CEOs in stock. On the private firm side, the rise of private equity and the increase in leveraged buyouts has led to extractive financial strategies in which private firms cut jobs and reduce wages in order to extract maximum wealth for the holders of equity.

Though the literature is still nascent, several scholars have examined the direct negative impact of corporate financialization on income inequality. One study found that financialization, net of other factors, could account for more than half of the decline in labor’s share of income in the nonfinancial sector of the economy, and is comparable to the effect of de-unionization, globalization, and technological shifts.  Others look directly at the impact of financialization on declining corporate investment, finding that the financial profit rate is correlated with a significant decline in investment, especially for large firms. Less investment can mean less to spend on improving the skills and productivity of one’s workforce.

Corporate financialization is not the only driver of labor market challenges. It has become impossible, though, to think about how to solve problems in the labor market without taking on the primacy of shareholders. It is not simply that firms want to spend less money on workers—it’s that they actually need them less, and so the incentive to invest in a high-quality workforce is much reduced. In order to have a stable and productive workforce, and for workers to have the bargaining power they need to take home a fair wage, the incentives that drive shareholder primacy must be reformed.

A modified version of this post will be published as part of the article, Eleven Things They Don’t Tell You About Law & Economics:  An Informal Introduction to Political Economy and Law, forthcoming in Volume XXXVII of Law and Inequality:  A Journal of Theory and Practice (Law & Ineq.) of the University of Minnesota.

Lenore Palladino is Senior Economist and Policy Counsel with the Roosevelt Institute, a Lecturer in Economics at Smith College, and Of Counsel with the Law Firm of Jason Wiener, p.c.