Friday Roundup

Happy Friday!

This week, the public continued to grapple with the revelation that Facebook disclosed more than 50 million users’ account information to the right-wing political consultancy Cambridge Analytica. LPE contributor Frank Pasquale has previously described how we should understand the big internet platforms as exercising a form of “functional sovereignty,” a description seemed as apt than this week as ever, when people realized how little government regulation restricted Facebook’s use of their private information. Here are three recent pieces that have caught our attention with an LPE take on the issue:

  • Beware the Big Five – the U.S. military and intelligence sector’s venture capital funding has fostered the tech sector’s consolidation and permitted the growth of private empires on the back of publicly funded R&D.
  • Facebook Isn’t Just Violating Our Privacy – Facebook is insistent on seeing its failures as harming individuals, never society as a whole, but we must insist on using collective questions to challenge Silicon Valley’s libertarian perspective.
  • The New Military-Industrial Complex of Big Data Psy-Ops – Silicon Valley’s behavioral science research has been critical to the military and intelligence apparatus.

 

Elsewhere on the web:

 

Nick Werle is a student at Yale Law School.

California Bans the Box, Twice

Noah Zatz – 

A core LPE theme is the construction of markets through political choices institutionalized in law. Those choices create an economy structured by whatever matters politically, including race. My Bailey series has been developing this theme in connection to the criminal regulation of work, in particular the use of criminal punishment to compel work. The more familiar racialized criminal justice/labor interaction concerns how the state marks individuals with criminal records, which employers then use to deny work.

Over at OnLabor, I’ve got two new posts up on some of the more technical aspects of using employment discrimination law to counter criminal records exclusions. The first one flags a familiar rules vs. standards problem in deciding when criminal record screening is permissible. The second one explores what kinds of evidence appropriately demonstrate the disparate racial impact of criminal record exclusions. In both cases, my jumping off point is innovative new regulations issued under California’s state employment discrimination law.

At some point I will share some thoughts on how these coercive and exclusionary dynamics work together.

Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

Noah Zatz –

vote communist

“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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Division, Distraction, and Domination: Revisiting The Miner’s Canary

Frank Pasquale – 

A magazine owned by billionaire Michael Bloomberg recently reported on workers’ declining share of national income. “Why don’t workers get the full benefit of rising productivity? No one has good answers,” it stated, to the merriment of left Twitter. A raft of memes reminded Bloomberg Businessweek of the lessons of Piketty, Marx, and political economy generally. Of course capitalism is going to disproportionately reward the owners of the means of production. Surplus value helps r > g, those gains are partially reinvested in the political system, which produces even more inequality—self-reinforcing domination without end, amen.

On the other hand, there are many varieties of capitalism. Some states are much better at democratizing financial security than others. The US and UK are both savagely unequal societies, but at least the latter has a National Health Service. Germany and France do more than either the US or UK to reduce inequality through taxes. Timing matters, too: the US of the mid-1960s had far more hope of durable egalitarianism than the US of the mid 2010s. As David Grewal has argued, “Understanding why r > g has generally held — and why it briefly did not — requires an account of capitalism as a socioeconomic system structured through law.” And we cannot tell that story without, as Angela Harris argues, looking at the role of race in structuring both economic and political opportunity.

Harris’s post focuses on the history of exploitative relations between central and peripheral powers. She argues:

Part of the mission of “law and political economy,” as I see it, is to broaden our investigation of the relationship between “race” and “economics” both spatially and temporally – beyond the bounds of America as a nation-state, and beyond slavery as a starting point. The proposition is that race is foundational to “law,” to “the political,” and to “the economy.”

Both social science graduate schools, and law schools, can use the pursuit of parsimony as an excuse to abstract away from the racial context of so much of what we study. Harris is right to bring race to the center. Many of the works she cites should be in the canon of law and political economy. They help us better explain the past, while illuminating troubling trends of the present. We need to elevate research that does this vital work, exposing the role of racecraft in distracting individuals from their real interests, to pursue some contrived purity or superiority.

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Where Is Race in Law and Political Economy?

Angela Harris

In their first post on this blog, Amy, David, and Jed assert that “politics and the economy cannot be separated.” Nevertheless, as they also observe, the separation of the two – as, for example, in the idea that economic activity is determined by laws of supply and demand that lie outside the power of governments to influence, other than through misguided “intervention” – continues to influence law and policy. A similar separation runs through scholarship in several disciplines, including law, between the study of economics and the study of race. As the new field of “law and political economy” grows, one of its tasks must be to trouble this separation as well.

We know the separation most familiarly as the “race or class?” question (note the either/or framing). In the affirmative action debate, it manifests as this: Isn’t a poor white kid from Appalachia more deserving of the last spot in a freshman class than a black doctor’s kid? In academic discussions, here’s how it typically goes: All this stuff about race, or more broadly, all of this “identity politics,” is a distraction from the deeper and more fundamental realities of wealth and poverty, production and exchange. Sometimes race distracts because it is considered to be a matter of “culture,” which is “epiphenomenal” to material relations: It’s about exploitation, stupid! Other times, race is considered a distraction for pragmatic reasons, because its appearance is “divisive,” threatening the solidarity of labor, or the electorate, or progressive communities, or women. At still other times, especially within academia, the separation of race from economics looks something like a polite form of intellectual self-segregation: while all the black kids are sitting in the cafeteria together talking about critical race theory, the law and economics kids are at their own table, drawing supply and demand curves and talking about Pareto optimality. To each their own, and everybody’s happy.

But this story of race and racism as either irrelevant to or reducible to the story of production, exchange, and consumption is wrong. Black studies scholars have been saying so for quite some time. In 1935, W.E.B. Du Bois argued that what turned the tide of the Civil War was a mass withdrawal of slave labor, amounting to a “general strike.” In his view, the North’s victory was neither a race story nor a labor story, but a powerful demonstration of how the two were intertwined. Generations later, Cedric Robinson’s Black Marxism provided a similar attempt to take race seriously within a materialist frame, arguing that the Eurocentric origins of Marxist theory left it unable to adequately account for black history.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading

Thinking Intersectionally About Race and Class in the Trump Era

Trump_victory_speech

Noah Zatz –

More than a year after the 2016 election, progressive analysis and strategy continue to be limited by the ping and pong of class-not-race and race-not-class accounts, and recriminations they provoke. Understanding what happened and charting a way forward require an alternative, a thoroughly intersectional analysis of race and class. On such a view, taking race seriously is necessary to understand how class works, not to diminish its importance.

“Intersectionality” risks depletion with its rise as a buzzword, but I mean to invoke specific insights animating the pathbreaking work of Kimberlé Crenshaw and other feminist scholars of color. In particular, they argued that understanding race and racial oppression requires an analysis of how race is gendered and gender is racialized. As Sarah Haley argues in a recent tour de force in this tradition, “gender is constructed by and through race.” So, too, we cannot understand and respond to the racism on display in the 2016 election and since without understanding its intersection with class, and how class is constructed by and through race.

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Modern Money and Historical Trauma

Angela Harris –

In September of 2017, I attended the First International Conference of Modern Monetary Theory (MMT) at the University of Missouri, Kansas City. Subtitled “Economics for a New Progressive Era,” the conference displaced the university’s annual Post-Keynesian Conference, signaling a growing enthusiasm for MMT among academics, advocates, students, and regular people. Reporters from Bloomberg and the Wall Street Journal were in attendance as twenty-seven panels and several keynotes covered topics from “Stock Flow, Consistent Models, Finance, and Growth” to “MMT in the Streets: Grassroots Organizing and Mass Mobilization.”

Image result for taylor mac

Taylor Mac

I got home from Kansas City in time to catch the last half of the third chapter of the “24 Decade History of Popular Music,” a “radical faerie realness ritual” presented by the drag artist Taylor Mac. Two hundred and forty-six songs long, and covering the history of the United States from 1776 to the present, the work was performed without a break for twenty-four hours in New York last October. I saw it at the Curran Theater in San Francisco, where it was presented in four six-hour blocks (with no intermissions) over the course of two weekends. I was fortunate enough to be there for three and a half of those blocks: twenty hours of dazzling, fabulous costumes; music from a slowly dwindling band (one musician departing every hour until only Mac remained); burlesque dance; “The Mikado” performed with the characters as Martians; and historical events reenacted through audience participation, from the Civil War (we threw ping-pong balls at each other), to the Cold War (two giant inflatable penises, one stamped with a Russian flag and the other an American flag, bounced from the balcony down to the orchestra and eventually ejaculated white ribbons on the crowd).

What do PowerPoints in Kansas City have to do with rubber breasts, high heels, and glitter in San Francisco? For me, the answer is white supremacy.

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