Envisioning Worker Voice in the Private Government(s) of the Twenty-First Century

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.

Amanda Jaret –

anderson book cover

For those of us who are interested in law and political economy, seeing a political philosopher of Elizabeth Anderson’s stature dedicate her Tanner Lectures to labor issues is deeply gratifying. In the lectures, Anderson forcefully argues that the state plays a constitutive role in shaping the “private government” of the workplace by establishing rules that preserve space for employers’ exercise of “private, arbitrary, unaccountable” power over workers. As a participant in the “marginalized academic subfields” of labor law and labor history—which Anderson notes are among the only disciplines which consistently raise questions about the normative implications of power disparities in the workplace—I think she is to be commended for addressing the curious invisibility of employers’ regulatory authority over workers’ lives and its broader implications for those who share Anderson’s egalitarian commitments. Nevertheless, I worry that Anderson’s analysis ultimately misses the mark, because it pays insufficient heed to structural economic changes that have transformed “private government” in the past few decades, with consequences that threaten the viability of her vision of ensuring worker voice in the governance of private firms.

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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 

anderson book cover

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

Martha T. McCluskey –

Economic-Pie.jpg

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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Against the Economic Pie: How Economic “Maximizing” Skews Legal Analysis

Martha T. McCluskey –

Should law maximize or divide the “economic pie”? Law students learn that smart thinking begins by asking this question. But this question skews legal analysis against a political economy perspective. It implicitly presumes a hierarchy where an abstract idea of economic gain normally stands above and beyond political and moral concerns, bigger in size and first in order.

Economic-Pie.jpgA recent New York Times commentary by pundit Thomas L. Friedman exemplifies the ideological work of this binary. Friedman contrasts the “redivide-the-pie” political left with various “grow-the-pie” political visions grounded in what he presents as the more realistic understanding that private economic power, not egalitarian democracy, is the foundation of good jobs and general prosperity. Similarly, legal academics often use terms like “economic efficiency” or “economic welfare” to define the optimal legal order as a matter of maximizing economic gain aside from fairness or the well-being of particular persons. For example, students learn to use efficiency to rationalize tort law limits on corporate liability for consumers’ injuries from risky products, or to justify contract law rules upholding agreements that produce harsh or exploitative results.

This first of two posts on this framing question challenges the implicit spatial metaphor embedded in the distinction between maximizing and dividing the economic pie. By definition, the whole is always greater than any particular part. We skip over many hard and important questions when we imagine the societal “whole” as a maximum “pie,” that can then be sliced and distributed for particular interests. The efficiency-distribution binary distorts legal analysis in three ways. First, the image of “maximizing” emphasizes quantity, rather than quality; second, it presumes economic gains normally and objectively expand rather than tightens the boundaries of prosperity and well-being; and third, it represents gain as a sum of separable parts, rather than as an interdependent system.

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Contextualizing Contract Law: An LPE 101 Reading List

Luke Herrine—

Contract is, of course, part of the core legal infrastructure that makes markets possible. But it is more than that. As an ideal type, it is at the core of all individualist social, moral, and political theories that seek to account for human sociality while avoiding social structure. Contract represents the ideal of being able to choose how to calibrate others’ demands with one’s own life plan. It presents the possibility of a social obligation that is not imposed upon one from the outside—by family or tradition or etiquette or the state. The rational choice theories that form the basis for neoliberal economic thought do not just understand chosen obligation as an ideal or a possibility: it is how they model all social institutions, even highly complex ones. No wonder “social contract” has been such an enduring model of the legitimate exercise of state power in the liberal tradition.

Theories based on the contractual ideal have proven especially useful for justifications of capitalist ordering. When the law has taken such theories too seriously, it has found it easy to endorse and even mandate all sorts of market-mediated exploitation as necessary to a free society. Lochner and its ilk were supposed to protect freedom of contract, after all.

The contractual ideal and the promissory morality that comes with it is part of our culture, and not just our legal culture. Even those of us who have been on the business end of exploitative contracts—for debt, for labor, for rent, for whatever else–have a hard time shaking the notion that we are obligated to do what we said we would (even if we didn’t know what we “said we would” via the fine print): that we chose, and therefore have responsibility for, the rules imposed upon us.

Thinking about—and teaching—contract from an LPE perspective requires denaturalizing with this tendency of thought and the forms of moral, political, and legal justification that have grown out of it. And doing that requires dealing with contracts not as the shadows of an ideal Form but as institutions shaped by socio-legal context. It requires dealing with the law of contract not as a self-contained and coherent body of judge-made doctrine but as an overlapping set of rules that deal with different contractual forms in different contexts. And it requires highlighting how the decontextualized contractual ideal can serve ideological functions when used as a map for this complex terrain.

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Law, Political Economy, and the Legal Realist Tradition Revisited

K. Sabeel Rahman — 

As David, Amy, and Jed note in their opening post, the economic, social, political, and ecological crises of the current moment are helping fuel an exciting wave of legal scholarship. This emerging trend, the “law and political economy” (LPE) approach, interrogates the relationships between law, politics, and economics, exploring issues of power, inequality, democracy, and social change. As we explore what this approach might mean and what its implications might be, it is important to situate these inquiries in a larger history of legal scholarship and reform politics. This is not the first time that a similar moment of crisis has helped spur creative new thinking about the relationships between law, capitalism, and democracy—and it won’t be the last. In this post, I want to sketch a particular aspect of this trajectory: the long legacy of legal realism and its relationship to our current debates around law and political economy.

This legacy is important for two reasons. First, now, as then, we face a similar period of socioeconomic upheaval and political conflict, prompting us to rethink our legal structures. As a result, the substantive insights of legal realism remain valuable for an LPE approach today. Second, recalling the trajectory of legal realism and its successor intellectual movements is helpful in highlighting the kinds of tensions and questions that an LPE approach will have to continue to address.

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