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

Structural Inequality and the Law: part II

K. Sabeel Rahman

In the 2015 case Texas v. Inclusive Communities Project (2014), the Court upheld the application of a disparate impact standard for judging violations of the Fair Housing Act, enabling advocacy groups to challenge urban development policies that (re)produced patterns of racial and economic segregation. In justifying this interpretation of the statute, Justice Kennedy offered in his majority opinion a brief account of the ways in which racial and economic segregation has persisted and been codified by a variety of legal and policy regimes, despite the formal elimination of de jure segregation.  Meanwhile, writing in dissent in the 2013 Shelby County v. Holder case where the Roberts Court struck down the preclearance protections of the Voting Rights Act, Justice Ginsburg provides in her opinion a lengthy exposition of the various “second-order” forms of voter suppression and discrimination, outlining how an apparently well-functioning democratic process in fact was riven by systemic patterns of discrimination and political inequality.

These glimpses are indicative of a growing awareness that social justice must be understood as a structural phenomenon encompassing a complex interplay of economic, racial, gender, and political dimensions. Many different legal and policy choices combine to create systemic forms of inequality and exclusion. As discussed in the previous post, one of the key ways these claims for greater inclusion and equity are precluded is by casting them as products of “natural” economic forces, not subject to human agency and alteration. However, even if structural forces are acknowledged to be within the scope of public redress, how to combat them is often viewed too narrowly. This post suggests that the remedies for structural inequities require a similarly structural approach.

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Structural Inequality and the Law: part I

K. Sabeel Rahman 

In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of the sort that marked the Jim Crow South—had been officially eliminated as in the case of Louisville, and had never been employed in Seattle. Thus whatever racial disparities existed in these regions were not the product of law. For such schools, Roberts wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The systematic racial segregation of modern metro areas, long documented by urban scholars as a result of economic inequalities, racial wealth disparities, and deliberate policies of zoning and urban planning, did not factor into Roberts’ analysis.

A relative lack of concern for what might be termed “structural” inequality has characterized the Roberts Court’s voting rights jurisprudence as well. In Citizens’ United v. FEC, which upheld corporate campaign contributions as political speech, the Court ignored how disparities in economic wealth could skew the otherwise free-flowing marketplace of ideas or the dynamics of political competition. In Shelby County v. Holder, Roberts suggested that the preclearance regime established by the Voting Rights Act of 1964 to oversee voting regulations in many Southern states was no longer needed. In her dissent, Justice Ginsberg castigated Roberts’ argument as, among other things, exhibiting a blindness to more subtle “second-generation” barriers preventing minority groups from exercising their voting rights in full.

These glimpses point to a larger challenge for legal scholarship, analysis, and policymaking. The question of structural inequalities often stump courts and lawmakers alike. What does it mean for inequality to be “systemic”? Can any single actor be held responsible for such systemic or structural disparities? If these disparities are so diffuse, so baked into the background patterns of social and economic activity, how would they even be redressed or counteracted? This two-part series offers a means of conceptualizing both structural inequality and its means of redress.

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Tax policy is human rights policy

Zak Manfredi – 

“[T]ax policy is…human rights policy.”

– Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights

On the eve of December 1, 2017—as members of the United States Senate prepared for a late night of political contestation—Senator Bernie Sanders made the Republican tax bill a human rights issue. Senator Sanders drew attention to UN Special Rapporteur Philip Alston’s then-ongoing investigation into how “extreme poverty” implicates human rights in the United States. Alston later met with Senator Sanders, and, after concluding his visit, castigated the Republican tax legislation for its potential to exacerbate already historic levels of economic inequality and extreme poverty. In the wake of the finalization of the tax lawone of the greatest tax transfers of wealth to the rich in modern times—numerous activists also decried the human rights implications of radical economic disparities. Alston’s trip to the United States might nevertheless have seemed controversial to other observers precisely because it treated extreme economic inequality and poverty as human rights concerns. As a formal matter, the United States has never ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and even its assent to the International Covenant on Civil and Political Rights (ICCPR) consisted of many formal reservations that render the treaty almost entirely non-justiciable in US courts. More generally, as Alston’s preliminary report noted, legal institutions in the US have been notoriously reluctant to apply the language of “rights” to address social and economic justice claims.

6720.jpgFor contemporary scholars and activists invested in challenging extreme inequality and concentrations of corporate power, however, human rights may prove controversial for a different reason: the long-shadow of the left critique of rights. Since at least Karl Marx’s critique of the French Declaration of the Rights of Man and Citizen, many left thinkers have been suspicious of the conceptual foundation and practical implications of human rights.  For Marx, the Rights of Man helped underwrite a regime of private property law that stifled “genuine human emancipation,” while simultaneously absolving the state from addressing social and economic domination in the sphere of “civil society.” On this account, just as the state recognizes the formal equality of all persons, it simultaneously abdicates responsibility for private forms of discrimination and social domination—rights to hold private property offer no comfort to those without means to acquire food, shelter, or housing. More generally, leftists have long observed that a narrow focus on formal equality obscures and ratifies substantive inequalities. Indeed, many subsequent critics—including notably early writings of the Critical Legal Studies Movement—contend that the promulgation of legal rights can exacerbate conditions of oppression. Contemporary scholars note how rights claims are invoked to prevent the redistributive taxation of privately held capital, to protect the rights of corporate entities to “speak” as in Citizen’s United, and to weaken the power of labor unions with “right to work” laws.

Today, thinkers have updated these critiques to consider how human rights law can function as a form of “neoliberal governance”—these critics stress that complying with human rights norms often requires states to make certain “reforms” that align with political and economic agendas that favor “free market” principles. As Naomi Klein observes, the neoliberal economic programs championed by Reagan and Thatcher spread across the globe during the 1970s and 80s at precisely the same time when international human rights NGOs also flourished. Jessica Whyte’s astute analysis argues that even the social and economic human rights frameworks of the twentieth century were designed to be “flexible” enough to allow for the implementation of new forms of neoliberal economic governance. While I cannot do full justice to these critiques in the space here, it is important to note that they ultimately rest on a set of concerns about the kind of normative vision of the “human” that human rights laws underwrite. Anthropologist Talal Asad, for one, suggested that “the historical convergence of human rights and neoliberalism may not be purely accidental,” since human rights notions of “self-ownership” and “self-preservation” align with neoliberal economics’ understanding of human beings as pieces of “human capital” always striving towards greater self-augmentation. Consider, for instance, whether a theory of human rights imagines human being as, in Marx’s critique, “egoistic individuals” preoccupied with holding and consuming private property, or in contemporary terms, as entrepreneurial creatures always seeking to maximize their individual capital and credit-worthiness; when such a theory of human rights is implemented in practice, critics worry that the legal protections it offers will focus primarily on creation of “free markets” and justify policies that intensify social and economic stratification. Perhaps more distressingly, left critics of human rights also worry that particular rights regimes encourage and produce different self-conception among rights holders—if a human right to private property or wealth accumulation is enshrined in law, it helps establish a framework for how people evaluate their own, and each others, life projects. Continue reading

The New Majority: Uniting the Old and New Working Class

Daria Roithmayr – 

This post picks up where Angela Harris and Noah Zatz left off in the conversation about race and class. The arguments in this post preview arguments I will be making in a new book, entitled “The New Majority.” It will surprise no one that I decided to write the book in November of 2016.

So here’s the central argument. To end inequality, and to defuse white working class backlash, progressives should work to unite both the old and new working class on issues that those two groups share—like the concentration of power at the top, economic precarity in the middle and bottom, access to health care, job growth, wages and quality, freedom from violence and addiction, and reducing exploitation. To name just a few.

If there is a silver lining to the 2016 election and the trail of destruction that has followed, it is this: in the midst of the chaos, progressives have begun a serious conversation about inequality, and about race and class. To be sure, the conversation doesn’t look all that illuminating at the moment. On one side, people like Mark Lilla and others on the economic left (or left of center, or okay, center) make totalizing claims that locate class as the centerpiece in the conversation about inequality. They argue that Democrats have failed to address the concerns of the white working class. They claim, for example, that the experience of plant closings in key districts, explains why many people in battle ground states voted for the GOP. Some in this group argue that progressives ought to jettison “identity politics” in favor of some more universalist principles of fairness or economic justice.

On the other side, Ta-Nehisi Coates and others on the cultural/material left make totalizing claims that race and racism are what stands in the way of true equality. This group argues that anti-black racism and anti-immigrant resentment drove last November’s results—after all, poor and working class voted disproportionately for Clinton, and voters who expressed fear of people of color were far more likely to have voted for Trump, even when they had voted for Obama or for Democrats in years past.

In addition to making totalizing claims, both sides appear to accept the common wisdom that long-standing racial divisions make a unified working class impossible. I want to challenge all of that. More specifically, I want to argue for the possibility of uniting the old and new working class around progressive commitments to things like shared prosperity and the end of precarity, access to health care, an end to violence and a lower cost of debt. This doesn’t mean that I side with the class folks—far from it. Or with race folks. It’s more accurate to say that I side with both. To unite the old and new working class, we must understand the way in which race and class interact, for a particular group of people at a particular historical moment in time. Continue reading

Understanding the Political Economy of Academia Through the Tax Bills

Alyssa Battistoni

Paying for corporate tax cuts with revenue raised from grad students and universities sounds like a parody of a Republican tax bill. Unfortunately–like many seeming parodies these days–it was all too real. The tax bill that originally passed the House would have taxed both graduate student tuition waivers and university endowments above a certain level, measured per-student.

free yale pic

The tax on tuition relief wasn’t in the version of the bill that passed the Senate, and has been dropped from the bill entirely in the reconciliation process—thanks largely to grad students and their unions, who led a wave of protests against the provision. The endowment tax, however, remains intact despite the best lobbying efforts of university administrators.

Understanding the various versions of the bill in relation to both grad students and endowments provides a valuable window into the political economy of contemporary academia. In particular, Congressional Republicans have unintentionally revealed the ways in which the labels of “school” and “student” are only partial descriptors of contemporary universities and the people who study at them.

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Understanding Environmental Law as Public Provision

Jedediah Purdy –

A law-and-political-economy (LPE) approach illuminates environmental law in a few ways. It highlights that environmental law is a prime example of the ways law is generative, even in areas where it is imagined as reactive, and how it channels and responds to contested values even where it is imagined as technocratic. Law does not so much administer “the natural world” as it helps to create it by shaping regions, ecosystems, and the planet – a creative action that overlaps and interpenetrates with law’s shaping of the social world, from cities and suburbs to the agricultural economy to energy and transport systems.carson-book

Environmental law’s creative role, in turn, responds to deep-seated conflicts among visions of the world and the human place in it, and to powerful concentrations of economic interests, including big agriculture, fossil fuels, and the auto industry. The environment – woven out of natural and artificial elements – distributes profoundly unequal benefits, powers, and vulnerability, and does so in ways that are often only halfway visible because they are easy to naturalize as the given shape of the world.

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Why Law and Political Economy?

David Singh Grewal and Jedediah Purdy –

Why focus on what we call law and political economy, and why now?

In the last decade, inequality has become impossible to ignore. The 2008 financial crisis and the foreclosures and dislocation that followed it shook public and (to a limited extent) elite confidence that financial markets would “police” themselves and work for everyone. The Occupy micro-movement, although it was small and short-lived, led many people who had thought distributive conflict disreputable to begin naming it again. The Bernie Sanders campaign and Black Lives Matter have both drawn fresh attention to the deep and pervasive role of “structural” inequality – long term class divides, often acutely racialized – in shaping American life.

Two basic facts lie at the place where these crises and mobilizations intersect. One is that economic inequality has been growing markedly for decades, in most of the developed world but especially in the United States. The other is that elites, especially economic elites, dominate policy-making, marginalizing the views and interests of most citizens in rich democracies. These two trends reinforce each other, and both are pervasively intertwined with the law. In fact, neither is intelligible without a careful study of both “private” and “public” law. Continue reading

Law and Political Economy: Toward a Manifesto

David Singh Grewal, Amy Kapczynski and Jedediah Purdy –

This is a time of crises.  Inequality is accelerating, with gains concentrated at the top of the income and wealth distributions.  This trend – interacting with deep racialized and gendered injustice – has had profound implications for our politics, and for the sense of agency, opportunity, and security of all but the narrowest sliver of the global elite. Technology has intensified the sense that we are both interconnected and divided, controlled and out of control.  New ecological disasters unfold each day.  The future of our planet is at stake: we are all at risk, yet unequally so. The rise of right-wing movements and autocrats around the world is threatening democratic institutions and political commitments to equality and openness.  But new movements on the left are also emerging.  They are challenging economic inequality, eroded democracy, the carceral state, and racism, sexism, and other forms of discrimination with a force that was unthinkable just a few years ago.

Law is central to how these crises were created, and will be central to any reckoning with them.  Law conditions race and wealth, social reproduction and environmental destruction.  Law also conditions the political order through which we must respond.

How should legal scholars and lawyers respond to this moment?  We propose a new departure – a new orientation to legal scholarship that helps illuminate how law and legal scholarship facilitated these shifts, and formulates insights and proposals to help combat them.  A new approach of this sort is, we believe, in fact emerging: a coalescing movement of “law and political economy.” Continue reading