Debtor Organizing Against Neoliberalism

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Luke Herrine – 

social-movementsNeoliberalism is in crisis. For the first time in decades, alternatives of both terrifying and exhilarating varieties are on the table. The more democratic and humane alternative will only prevail if well organized social movements directly challenge the ruling class’s material base of power.

What will those movements look like? If history is any guide, they will have to be collectives of people whose everyday suffering can be transformed into relatively short-term campaigns for material betterment, medium-term campaigns for legal reform, and the longer-term work of building solidarity necessary to put truly transformative change on the table. The green shoots in the labor movement, the formations in and around the Movement for Black Lives, and increasingly energetic climate activism, among others, provide some reason for hope. Less discussed has been the possibility of debtor organizing, the subject of an inspiring new report from the Institute on Inequality and Democracy authored by Hannah Appel, Sa Whitley, and Caitlin Klein. The report should be read carefully by LPE sympathizers with an interest in creative practice: potential for legal strategies abound.

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The Constitution and Democratic Insurgency

Aziz Rana—

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy.  The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market.  At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems.  American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them.  Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority.  This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles.  This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles.  They can be used productively to pursue virtually any end—up to and including socialism.  As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy.  To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic.  Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

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Economic Human Rights, Not Tough Policy Tradeoffs

Martha McCluskey —

According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice.

Orthodox law and economics tellsus: all rights have a cost.  Law allocates economic gain, but cannot generate it, in this view.  From this premise, any new economic rights aimed at supporting those who are disadvantaged must come at the expense of some other economic gain.  For example, a universal right to affordable health care would simply mask an inevitable tradeoff in public and private spending:  fewer resources for education or jobs.  In addition, in this logic, an economic entitlement to receive basic human support will replace market discipline with incentives for waste, reducing economic resources overall.

What orthodox law and economics doesn’t tell us:  all costs have a right.  That is, any costs associated with new economic rights arise not from essential economics, but instead from contingent legal and political arrangements. Particular legal and political regimes produce, organize and limit access to human needs like education or health care. Law itself shapes the economic forces that appear to be disrupted when law re-allocates rights to advance general human needs.

On the question of health care, for example, a complex system of legal rights and institutions already protects economic gain for some at the expense of health and economic security for others.  Legal systems distributing risks and rewards in health care include patent rights, insurance regulation, corporate governance rules, antitrust law, criminal law, and tax policy. Moreover, these legal rights are not firmly settled or self-evident, but instead are continually questioned and modified, especially in response to lobbying, litigation, and advocacy by industry interests.  New rights to egalitarian economic support can similarly re-arrange economic gain and loss as a legitimate and beneficial function of democracy.

Further, we should not presume human economic rights amount to zero sum transfers or costly economic distortions.  That conventional law and economics thinking rests on the myth of an essential market order that transcends law and politics, thereby closing off analysis of how re-structuring the market could generate far better economic conditions.  But a more complete law and political economy view recognizes that entitlements do not come at the expense of naturally productive market activity; instead, entitlements generate and govern market production. New legal rights can give people new power to resist existing market constraints, and that transformative power can lead the economy to new levels of prosperity and stability. Continue reading

No Democracy

David Singh Grewal and Jedediah Purdy – 

What would it mean to make economic and political life more democratic? One way toward an answer is by getting more precise about how they are now undemocratic. Avoidance of democracy runs very deep in American law, and perhaps in the modern legal and political order generally. This is so despite the fact that constitutionalism and other forms of legal and political order all rest on claims to democratic legitimacy.

“Democracy” retains the core sense of its Greek root: “the people rule.”  That is, in a democracy it must be true in some real sense that people have authorized the rules, institutions, and multifarious exercises of power that they must live with, and which deeply shape their lives. What would it mean to “reinvent” democracy today—and what would the legal structure for such a democracy look like? In an essay forthcoming in the Yale Law Journal, we explore the answers to this question suggested by a recently published book, The Sleeping Sovereign, by Richard Tuck.

Tuck’s book sheds new light on the relationship between popular sovereignty and constitutional government. He argues that the modern constitution is a unique contribution to the practice of democracy, not because it constrains majorities – the usual picture – but rather because it enables them to act. Contrary to the popular myth that European monarchies exercised the “divine right of kings,” most medieval and early-modern rulers claimed some kind of authorization from “the people” – rooted in history, ongoing consultation among elites who claimed to speak for popular interests, and devotion to the well-being of the land. More or less everyone agreed, though, that it was impossible for large populations to rule themselves collectively in any ongoing way: what the citizens of small city-states of the ancient world had done, especially in Athens, was out of reach in a territory as vast as France or England.

Tuck traces a line of thought that began with sixteenth-century French jurist Jean Bodin and received crucial later formulations from Thomas Hobbes and Jean-Jacques Rousseau – and, more to the point, was understood in practice by the late eighteenth century to be a way of recapturing democratic self-rule in large, complex countries. The heart of the idea was to distinguish everyday rule, which thinkers in this line called “government,” from the decisions that established and authorized the basic form and terms of political control, which they called “sovereignty.” If a people authorized its form of government, its sovereignty was democratic, even if everyday business was carried out by other means – courts, ministers, etc. The great innovation that made this idea real was the written constitution, authorized by direct majority vote (or, less ideally, some other popular procedure such as elected conventions). A constitution contained the decisions of a democratic (i.e., “popular”) sovereign, granting power to the government it created while also shaping and constraining that government.

So far so good: It sounds like the U.S. Constitution, more or less (if you can stomach, for the moment, overlooking how limited the franchise was in most states). But pretty much everyone in this tradition agreed, for very powerful reasons, that sovereignty was democratic only if a people could regularly revisit its fundamental law, either to reauthorize it or to change it. Only if constitutional amendment was a real, live option would it make sense to say that the living had authorized the constitutional regime they were born into, rather than simply inheriting it. In other words, the original conception of constitutional self-rule incorporated both the basic commitment of today’s “originalism” (the democratic authorship of the constitution in the first instance) and the basic commitment of today’s “living constitutionalism” (the regular updating of constitutional authorization, by reaffirmation or change). Popular sovereignty was meaningful only if it included both, and to achieve that a people had to adopt a constitution with a viable procedure for ongoing amendment. Continue reading

The Law and Political Economy of the “Future of Work”

Brishen Rogers

How will new advanced information technologies impact work? This is a major focus of public debate right now, driven by widespread fears that automation will soon leave tens of millions unemployed. But debate so far has tended to neglect the relationship among technological innovation, political economy, and the law of work. This is a major omission, since the automation of particular tasks doesn’t just happen. Rather, it takes place under laws that are subject to democratic oversight and revision – and with different laws, we could encourage a radically different path of technological development, one in which workers have a real voice, and in which they share consistently in technology-driven productivity gains.

Take two upcoming transformations that we’re all familiar with: the automation of some kinds of driving and some kinds of fast-food work. Within a few years, truckers, delivery drivers, and taxi drivers may be able to use an autonomous mode consistently on highways. Later on, they may be able to do so on major suburban and rural streets. But given the wide variation in road quality, humans will likely need to pilot vehicles in residential areas and on city streets for some time to come. And given the wide variation in building structures that delivery robots would need to navigate, humans will almost certainly need to complete deliveries in many instances.

Similarly, in fast food, ordering kiosks are already displacing cashiers, but not in their entirety. Some customers are unable to use the kiosks, including the 70% of McDonalds customers who use the drive-through. Sometimes the kiosks will break down, and sometimes orders won’t be processed appropriately, and thus workers will need to step in. Food preparation may also be automated in part, but given the fine motor control and tacit knowledge required for cooking, it has proven resistant to full automation. Like the transformation in driving, then, this change will likely be gradual and iterative. Technology will augment human capabilities rather than replacing humans wholesale, and workers, companies, and consumers will need to adapt over time.

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Autocracy at Work: Understanding the Gothamist Shut Down

Sharon Block and Benjamin Sachs – 

Last week, billionaire Joe Ricketts abruptly shut down the local news websites Gothamist and DNAinfo.  The closure came a week after the sites’ newsroom employees voted to join Writers Guild East, a union that is the collective bargaining representative for reporters and editorial staff in a rapidly growing number of progressive, on-line media outlets.  Hamilton Nolan, a senior writer for Splinter and a lead organizer for the Writers Guild, made a compelling case in a New York Times op-ed that Ricketts did not shutter the company because of what the union would mean for the sites’ economic prospects. After all, the union hadn’t yet made a single demand. Instead, in Nolan’s words, Ricketts destroyed the company “out of spite.”

dnainfo-and-gothamist-shut-down-one-week-after-editorial-staff-unionizes-wgae-org-campaign

But why do unions infuriate people like Joe Ricketts? Why would Ricketts prefer having no business at all than a unionized business? The answer, we think, is suggested by something Ricketts said during the union’s organizing drive: “As long as it’s my money that’s paying for everything, I intend to be the one making the decisions about the direction of the business.” In other words, Ricketts expects that his financial power buys him the right not just to own a business, but to control his business’ workforce unburdened by the voices and views of that workforce

Unionization is, and always has been, the most effective way that working people can wrest a bit of control back from owners like Ricketts. It operates through the simple logic of collective action: by bargaining together, people increase their leverage and gain a voice in shaping what their work lives are like. Unions move workplaces away from institutions governed autocratically – by those with the ‘money that pays for everything’ – and toward institutions that are governed democratically, by including the insights and opinions of those who do the work. Continue reading