We lost the ability to see certain commitments in our law—whether educational exceptions to copyright law, or commitments to clean air
which arise out of the common-sense of the Common Law. It was obvious that an author whose work was read in class was not losing royalties. On the contrary, the kids who had to learn his shite might develop a taste for it and grow up to buy leather bound volumes of his oeuvre. Clean air affects our health. If the guy next door sets up a tannery, the value of our property plummets. It is not the case that the Law was ever on the side of free education at all levels or that it put the Environment above economic activity. These guys are telling stupid lies about a supposedly vanished golden age which was brought down by Coase & Posner & the Federalists.
They say there were 'political values'- of a crazy sort- embedded in the Constitution. Now it is quite true that a crazy person can say that the words in the Constitution mean some crazy shit. But that's why the Federalist Society became the dominant school of jurisprudence. It is better to be an 'originalist' rather than have to argue the toss with every crazy shithead who turns up to say 'pursuit of life, liberty and happiness' means everybody should supply abortion on demand to everybody else.
—as either reflecting or calling forth certain kinds of political values, or as taking a side in disputes that were inevitably struggles for power.
In other words, telling lies like 'the US constitution originally said kids could pirate anything they liked but those evil Republicans have changed the Laws' is not causing kids to join with Teacher in marching on Capitol Hill. Why? Kids have smartphones. They can immediately Google this and discover Teach is lying.
That move, of course, was not neutral.
Whereas telling stupid lies is neutral.
It expressed a particular view of power and legitimacy, one that viewed market ordering as tending to diffuse and neutralize power and as earning legitimacy by producing both a wealthy society and an appropriately constrained state.
These pedagogues may have a 'particular view of power and legitimacy' but this is because they are paranoid nutjobs subscribing to a foolish and long abandoned type of political activism. Other people don't bother holding any view in this regard. They get that markets may diffuse or may concentrate power while getting on with allocating resources. Equally, it may be the case that the Post Office, when not busy delivering parcels, is a front for wealthy pedophiles. But, equally, it may not be. There's no point getting your knickers in a twist about it.
Britton-Purdey et al pretend that there was a time when the Law was what they want it to be. Yet there is no evidence for this at all. Why are they lying to their students? Is it because their courses are adversely selective? They get shit students who in turn are only employable as shit teachers or shit writers for shit Think Tanks.
Britton-Purdey et al want us to believe there was
a constitutional erasure of the structural subordination of the poor, people of color, and women.
These are fighting words! But only if they can be backed up. Otherwise they are bullshit. Let us see if the can prove what they say.
Two steps were key here. First, despite efforts to constitutionalize welfare rights in the late 1960s and early 1970s, the Court held that public-benefits legislation was discretionary and refused scrutiny for poverty as a class, arguing that it was not susceptible to such sharply delineated formal inquiry.
To constitutionalize welfare rights would cause the Legislature to bind itself in perpetuity on vital fiscal matters. Since the Bench is ultimately constituted by the Legislature the thing was pointless. One way or another it would be undone.
When individuals argued that their ability to exercise their constitutional rights was pertinent to the constitutional obligations of the state—for example, when women argued that the state could not constitutionally subsidize childbirth without also subsidizing abortion,
the bottom fell out of the Progressive platform. People don't mind their tax dollars going towards bringing cute babies into the world. They object to killing fetuses.
Why not assert that if the State subsidizes the training of midwives it must also subsidize the Caliphate in training suicide bombers to kill those whom those midwives help bring in to the world?
or plaintiffs asserted that low funding levels for public schools in high-poverty districts denied students the material basis for exercising the rights to speak and vote
which was a terribly silly thing to assert since Americans who had never been to High School had been voting and speaking sensibly for two hundred years.
Why not assert that not having a PhD in Gramscian Grammatology would compromise one's ability to make a cross on a ballot sheet?
—the Court demurred.
Do these guys not get that they are making themselves, not the Court, look ridiculous?
Just when the achievement of formal equality meant that the major threats to an egalitarian society lay in structural inequality, the Court approved policies that compounded inherited forms of inequality, permitting education funding to vary in proportion to municipal wealth, and the access-to-abortion right to depend on having the money to exercise it.
Why? Because the sort of 'egalitarian society' these guys wanted was not what the voters wanted. No doubt, the thing was also unconstitutional- but Constitutions can be amended.
Second, the Court encased forms of private, material power by rejecting heightened equal-protection review of policies that predictably and persistently reproduced underlying patterns of economic, racial, and gender inequality.
How come rich, hard-working, people so often have rich, hard-working, kids while very poor crack addicts tend to have kids who may be as poor? Is this something Constitutional Law can remedy? Perhaps. It could forcibly sterilize some and take kids away from others. But is that what voters want?
In this way, the Court determined that education, public hiring, and criminal-justice policies could reproduce and even amplify social and economic inequality as long as they did not intentionally treat individuals differently on the basis of a forbidden characteristic.
But those did not actually 'reproduce' those social and economic equalities. Sex did. Rich, hardworking, people had protected sex a lot of the time till they could afford to have one or two kids whom they could send to College. Those families which remained poor from generation went ahead and had unprotected sex even if this meant that 'poverty' was reproduced. On the other hand, religious piety and moral character too may have been reproduced. Indeed, for all we know, good families that stay poor may be happier and have better 'inclusive fitness' than those who reproduced wealth.
Yet it is precisely the defining character of structural inequality that it persists independently of individually disparate treatment.
No. The defining character of structural inequality is that it arises out of structural differences of a biological or geographical sort. The Law can do little where Nature determines outcomes.
A conception of equality that ignored material deprivation and focused on improper intent
was all that the Law allowed. Politics could change that. Why do these cretins not try changing the 'conceptions' of voters rather than whining about the fact that Lefty Legal Scholars were shite 50 years ago and remain shite today? They lost then, they lost now. Why? Because they had embraced a lunatic doctrine.
encased the most pressing sources of inequality
like how come Beyonce earns more than me though I too can twerk as I sing- though not perhaps as melodiously
Consider the LPE claim that there are
three emblematic moves of modern constitutional law. Each of these moves helped recast issues of justice as something other than political economy questions.
Nonsense! Justice isn't Political Economy any more than Art or Science is though, no doubt, it is an economic activity.
First is an account of constitutional equality that exiled matters of class and material, structural inequality from the reach of constitutional law.
Exiled? Constitutional Law gradually extended its scope to those lower down the social scale. But it didn't back-track. It may not have gone on to do what these guys wanted but that isn't the same thing as saying it stopped doing something they liked. On the other hand, the Legislature could and did backtrack. Consider the Taft-Hartley Act of 1947. It essentially put Trade Unions back into a pre-1935 box while driving Commies out of the Labor movement. There can be little doubt this was a good thing for American workers. Without it, there would have been no affluent society. It should be remembered that Earl Warren had a strong anti-Communist reputation- perhaps framing Labor leaders as Reds during the Thirties. Yet, perhaps thanks to Brennan, for whom Posner clerked, the Warren Court is considered the most liberal in American history. The other side to this story is that empowering women and African Americans reduced the power of White labor leaders. It was only two decades later that the Republicans switched to a 'Southern Strategy'. Positive Political Theory (PPT) explains this actual 'Political Economy of Jurisprudence'. But L.P.E prefers to tell a fairy story about a Golden Age which was spoiled by evil Neo-Liberal Law & Econ mavens.
Hence the claim that constitutional law suddenly 'exiled' stuff these guys want. It seems the first 'emblematic way' these guys make an argument is by saying 'Since you didn't give me what I wanted, it is the case that you stole from me'.
Second is an expansion of the conception of First Amendment-protected “speech” to encompass certain economic transactions, including protecting advertising, campaign spending, and even the sale of data from regulation.
This is not an expansion. It is merely not the contraction which these guys wanted. Thus the second emblematic way they tell lies is by using sophistry and twisting words.
Third is an aggressive application of public-choice theory’s market-modeled skepticism of the state to legislation and administrative regulation.
If a theory is empirically proven, we don't say that Judges rely on that theory but rather on the facts presented by expert witnesses.
It is a fact that legislation and administrative regulation can be motivated by mercenary motives of a hidden type. Factual evidence in this regard has to be accepted even if some guys don't like the theory behind it. Some may have an objection to Newton or Einstein. But this is not germane in a Court of Law if expert testimony, conforming to either's theory, is backed up by empirical facts.
Thus the third emblematic way these guys lie is by pretending Judgments based on facts are actually based on theories which are unproven and mischievous.
These together form an encasement of economic power in the constitutional realm, tending altogether to render democracy subject to the market, rather than subjecting the market to democratic rule.
What does 'subjecting the market to democratic rule' actually mean? People have to vote on whether I can get to keep stuff I paid for?
Suppose I said- 'Lies told by these shitheads together form an encasement of pedagogic power in the constitutional realm, tending altogether to render democracy subject to a bunch of stupid Professors, rather than subjecting pedagogy to democratic rule'. You would answer, 'don't be silly! Some Pedagogues are shite. Others aren't. Democracy is a separate matter. Politics is relatively autonomous with respect to both market and pedagogic tendencies of howsoever unfortunate a type'.
The objection may be raised- surely the Law is different from other fields? What if a sinister bunch of pedagogues has twisted the minds of our Judges?
Under the Twentieth-Century Synthesis, areas of law that concern aspects of “the economy”—for example, contracts, corporations, and antitrust—were given over to a “law and economics” approach that emphasized wealth maximization.
How was this different from the 'Nineteenth-Century Synthesis'? The fact is some countries were Communist for a large part of the Twentieth Century. Then, for some reason, they stopped being so. Perhaps this had to do with people running away so as to get to a place where markets were freer and equality and fraternity were not considered good things if they interfered too much with the liberty of the rich and the talented and those who might otherwise run away.
Meanwhile, other values—such as equality, dignity, and privacy—were supposed to be realized in constitutional law and areas of public administration.
How? Which Court will uphold my dignity if it is my habit to piss myself in the street while off my head on booze? What about equality? Will the DMV make me equal to David Beckham? Since it won't renew my license, its the least it could do by way of reparation.
Shaped by these ideological currents, constitutional law turned away from concerns of economic power, structural inequality, and systemic problems of racial subordination.
But what did constitutional law achieve when it did have those concerns? Anything at all to write home about? Constitutional law did nothing to prevent Jim Crow growing strong and then precious little to uproot it. Why? The Law is merely a service industry- like prostitution or pedagogy. It can't do much to change Society. But, no doubt, when Society changes enough, it too has to change. This is why I've had to give up hanging around the docks in fishnet stockings. Tastes have changed. Sailors no longer want instruction in the finer points of linear algebra from a guy in a blonde wig. Fuck you Khan Academy! Fuck you very much!
No doubt, some senior prostitutes and pedagogues and legal eagles can create a taste for something recherche but it is bound to be a localized phenomena though, purely as a fad, it may have wider currency- like Punk 'bondage pants' in the late Seventies or Chidu's assless chaps under the first UPA Administration- because sooner of later 'jurisdiction shopping' militates for convergence to the median. It may be that one or two 'Tiebout models' buck the trend but, where there is a coordination game, there is bound to be a discoordination game. There's no point buying into the hype.
Other “public law” areas did the same. The result was that deep structures of power at the meeting place of state and economy were shielded from legal remedy and came to seem increasingly natural.
But this is true of any service industry. If priests are incessantly buggering little boys and banging on about how everybody should have babies like crazy, then sooner of later they get kicked in the goolies and told to fuck off. When the Law oversteps the mark, Crime holds it down and fucks it over till it cries Uncle.
Our ambitious hope is to replace the current “common sense” of legal scholarship with a new set of default ideas that will prove more responsive to the crises that we face.
Why not? There are lots of Foundations with too much money which they'll happily spend on worthless shite. The problem is that the tax payer may want Courts to charge these cunts through the nose for wasting their time. They may defund areas of the Law and its Enforcement such that the return on justiciability becomes negative.
So long as the Law is a service industry funded either by litigants or by the taxpayer or a mixture of the two, there are limits to what it can do though, no doubt, a few may do very well by pretending otherwise.
A number of us—legal scholars, practitioners, activists, and academics gathered under the rubric “Law and Political Economy”—have begun rethinking the relationship between law, economy, and politics suggested by the Twentieth-Century Synthesis. Our ambitious hope is to replace the current “common sense” of legal scholarship with a new set of default ideas that will prove more responsive to the crises that we face.
Cool, but only if we could actually have a Revolution that changes things- i.e stringing up rich dudes and dudes who look like they might be kinda rich or basically anyone we can get our hands on given the fact that the rich have run away.
The problem is that people may want help with their bills right now rather than wait for a share of the pie after the Revolution. This is the problem with having a sophisticated financial system. The Govt. can actually put 2000 dollars in your account every month. Direct transfers are a game changer. The old 'Political Economy' was about the Agencies which do the redistribution. That's why a lot of middle class cunts were keen on a type of redistribution which didn't redistribute shit but got them a nice office and an assured position in Society.
Law must move from
Why just Law? Why not Art? Why not Music? Why not Sex? Why not LSD in the water supply? Why not the toilers of the earth who have nothing to lose but their chains? But if everything must move, why mention the Law? The thing plays catch up. First there is the crime- i.e. stringing up rich dudes- then and only then can the Law play a role by saying 'Not Guilty by reason of being an ipso loquitur Rabbit!' or whatever.
must move from trapping us in accelerating crises toward providing paths to new and more adequate ways of setting democratic terms for a common fate.
But the Law has always been useless in this department. The Legislature can do stuff, though it faces a budget constraint. The President can do stuff- though the Courts may be a drag. But what can the Law do? Surely it has to itself go according to the Law?
I suppose, it could be argued, that something like a Left wing Federalist Society needs to be created. But surely such things already exist? The problem is that they look a bit shit, intellectually speaking. This is because 'Political Economy' is a bit shit, cognitively speaking. Nobody's stopping Leftists from using Game theory and Mechanism Design and Big Data to discover systemic discrimination and apply for legal remedies. But that sort of thing is not predicated on repeating stupid shite.
The U.S. Constitution, for example, should be interpreted and amended to align with democratic principles and become a platform for actual and democratic self-rule.
How? Quadratic voting? Cool! The problem is that stuff like quadratic voting doesn't feature in these guys 'Political Economy'. It's too mathsy.
Other changes—from constitutional doctrine, to voting rights, to legislative procedure—are also urgently necessary if the country is to become more democratic.
Why not achieve those changes using mathematical 'Law & Econ'? The thing isn't rocket science. Why go back to slow witted Nineteenth Century 'Political Economy' in order to fight the battles of the Twenty First Century?
Simultaneously, lawyers must advance values of democratic empowerment in institutional settings that have, for decades, been defined as insular, technical, and, if at all political, relating to expert “governance.” The Twentieth-Century Synthesis has obscured the significance of this work. But, if we are to emerge from this era of crisis, we need legal thinking that operates on fundamentally different presumptions.
Presumptions aint justiciable. Why not get evidence and present cogent arguments? Even suppose you brainwash a bunch of lawyers into repeating this shite, why should Judges grant their 'presumptions'? After all, they need to give a ratio which can stand up on appeal.
It may be that there are jaded lawyers who need to be psyched up by repeating mantras from the Old Testament or the slightly newer ones of Karl Marx before leaping into the ring. But if they keep losing, fuck them.
The history of post-war economics and its intellectual predominance are partly responsible for the growth of the Synthesis. The Synthesis is also a story of the relative economic success of the decades following the World War II, when the market economy seemed to be reliably expanding, with broadly shared increases in income. Both Democrats and Republicans increasingly came to see the economy as an object of routine expert management.
When was the economy considered a suitable object for amateur cretins to play with?
Persistent issues of inequality, such as racial hierarchy, were recast by many mainstream thinkers in the 1950s and ’60s as problems of inclusion in a system that basically worked.
As opposed to what? Separatism? Bantustans?
That idea persisted long after any empirical plausibility was undercut in the mid-1970s, when wages stopped increasing for ordinary workers.
Economists can argue whether real wages rose by 30 per cent or whether immigration hurt 'ordinary workers'. But these are questions for experts in Economics. What can it possibly have to do with the Law? I thought these guys wanted to divorce Law from Econ so as to get back to 'Political Economy' and fairy stories about class solidarity and the inevitable fucking-over of the bourgeoisie.
Its legitimacy was further undermined by the inequitable results of the financial crisis of 2007 and 2008, the aftermath of which persisted even as we careened into the present COVID-19 recession.
Obama was a Law Professor. How come he achieved nothing over two Presidential terms? Was it because he hadn't heard of 'Political Economy'? But if a smart guy like Obama didn't know about it, why expect less smart people to get the hang of it and use it to solve all our problems?
The Synthesis comprises three presumptions that structure much of conventional legal and policy discourse. The first presumption is that the economy is a potentially autonomous system in principle—self-correcting, efficient, and largely serving the common good.
But Economists know that behind this presumption is the presumption that a Goldilocks condition re. preference and endowment diversity exists. It appears the 'Synthesis' is ignorant. But to critique it you need more Econ, not some antique 'Political Economy'.
On this view, government “regulation” interrupts the system and should be treated with suspicion unless it simply solves “market failures.”
Nonsense! Governments supply public signals to promote better correlated equilibria. Furthermore, a market may be repugnant even absent any externalities. Government regulation is one way of addressing 'market failure' but 'mechanism design' can be done by the industry itself.
Those failures may be widespread, and the state’s role in shaping and maintaining the economy extensive, but the law is to be oriented toward an approximation of the self-sufficient ideal of economic order. This presumption erases the growth of unequal income and wealth that is the empirical tendency of market economies, as well as the “private government” of managers dominating workers and monopoly firms, such as Amazon, increasingly dominating whole sectors of the economy. From this perspective, antitrust regulation gets between giants such as Amazon and their willing customers; unions regiment the labor market, boxing out individual at-will employment; financial regulation curtails innovation among investment managers. This posits that liberty and the general welfare will be advanced by getting the state out of the way—by “deregulating.”
Why? Jurisdiction shopping under International Trade agreements which included I.P and services. America could have stuck with a Competition Policy & I.P regime which caused it to fall behind. Instead it chose to release 'trapped assets'-e.g. patents owned by the Federal Government- and broadened the scope of 'inventive steps'.
Of course, the Synthesis arose during an era not of deregulation but of selective re-regulation. Certain parts of the state grew larger and more restrictive, redeployed to advantage the powerful few. For example, regimes of intellectual property and transnational investment protection—regulatory, if anything—were constructed to empower powerful businesses in the global North. At the same time that the government scaled back social services, it deployed expensive systems of incarceration and penal welfare. The state refined systems of parole and child support to make poor people, disproportionately of color, “get to work or go to jail.”
Why? Their neighbors preferred this outcome.
Extractive immigration laws gave bosses more control and made workers, authorized and unauthorized, more vulnerable.
In which case, they probably worked harder. Productivity went up. This raised National Income and the Tax take.
The stories of Flint and Ferguson are not about deregulation and market freedom, but about privateering business interests
Really? Flint found buying water from a Detroit public utility too expensive. So it bought water from the Karegnondi Authority- which was a municipal corporation. This is not deregulation or market freedom. It is a story about a public sector enterprise which was shit at its job. It is notable that General Motors switched its supplier when it noticed increased corrosion. Suppose Flint's water had always been supplied by, local entrepreneur and philanthropist, Mott's Foundation. The supply would probably have been cheaper and better. Instead, it was supplied by crappy public sector enterprises.
Ferguson's problem arose from an out of control police department, not some rogue capitalist. But stuff like this happened a lot in purely Communist countries. How is it linked to 'deregulation and market freedom'?
finding a foothold in a degraded public sphere,
which is degraded because people don't want to pay higher and higher taxes in return for crappy public services
implementing new ways to extract wealth from ordinary people, and denying basic entitlements to freedom, equal care, and democratic voice.
not to mention incessant anal probing by extra-terrestrials.
The result has been the greatest economic inequality and concentrated economic power in a century. At every step,
people not wanting to pay higher and higher taxes has been the cause of the problem. The fact is a Communist country could have very low economic inequality but it would also have very high taxes and utterly shit public services. Also smart people would have run far far away.
law has been central to these developments—not only providing the rules for new systems of extraction and upward redistribution,
nonsense! The Law has not provided any rules. Contracts have. But if smart people write those contracts stupid people find it very difficult to challenge those contracts by saying 'Boo to the Rich! This Contract is illegal due to Carly Marx said so! Judge, I order you to sodomize that law type guy wot went to Collidge. He is using long words and it is making my head hurt.'
but also elaborating the ideas used to rationalize them.
Who the fuck needs to rationalize getting more money for less work? Does Jeff Bezos really say 'how come I'm so rich?' and does the Law really reply, 'Jeff, baby, don' worry 'bout it! It's like habeas corpus dude!'
The role of law in weakening the welfare state
by not granting everybody lots of free money
and expanding incarceration is clear,
by jailing rapists and muggers instead of giving them lots of money and letting them roam free
but the shifts in law and legal logic that operate farther from the spotlight have largely been obscured. Take two examples from economic law: antitrust and labor law.
Voters want cheap high quality stuff. Anti-trust law had to change because it prevented the proper exploitation of economies of scope and scale. Labor law had to be reformed because people don't want to be at the mercy of Teamsters and other Unionized thugs and slackers.
Law has been central to these economic developments
which arose out of a revolt by voters
—not only providing the rules for new systems of extraction and upward redistribution, but also elaborating the ideas used to rationalize them.
These guys don't mind repeating themselves. Thrifty.
The Sherman Act, which regulates the level of concentrated ownership in any given industry, was passed and enforced on the theory that corporate concentration was a threat to democracy.
So, it was foolish.
Justice Louis Brandeis’s perhaps apocryphal claim that “we may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both” could have served as a motto for the field.
Lots of this type of legislation was unenforceable or mischievous. Many states still have Robinson-Patman type retail price maintenance acts. But few complaints were ever brought under such acts.
The other problem is that cases brought under these types of Acts are a double edged sword. They are just as likely to favor a rich Corporation as a bunch of struggling Mom & Pop operations.
This is the big problem with making the Law the site for Revolutionary politics. The smarter guy can beat up the stupider guy. One alternative is to get rid of 'adversarial' justice and replace it with 'inquisitorial' justice. But the problem remains that the stupid get fucked over. It is safer to just write stupid articles for the Boston Review and to say 'Boo to the Rich' from time to time.
Beginning in the 1970s, under the influence of conservative scholars (including Professor, later Judge, Robert Bork), antitrust law abandoned this original theory.
Because the Economics had moved on very greatly. Anyway, ways around existing laws were more easily available. The deciding factor was stagflation. Reducing competitive pressure simply meant that both Entrepreneurship and Labor could just take an ever increasing share of National Income. The problem was that, because of 'fiscal drag', this would mean a higher Tax as a proportion of Income. So Voters suddenly turned conservative because Director's Law had ceased to apply- i.e. ordinary people, not just the rich, were paying for what the Govt. provided- which they thought was shit.
In its place, it refocused on the goal of low prices (called “consumer welfare”).
though higher prices make consumers much happier, right?
Antitrust law followed neoclassical economics in assuming that behemoths are generally large because they are delivering good value, not because they are accumulating too much power. This conviction also presumed that corporate shortcomings would be revealed by new competitors, reinterpreting the waning of competition as attributable to the efficiencies of dominant business.
What's wrong with that? Economies of scale and scope do exist.
Now our banks are too big to fail, Amazon and Facebook are public infrastructures in private hands, and the super-concentrated meat industry is producing supply-chain breakdowns as COVID-19 devastates slaughterhouse workers.
While the CDC is working marvelously- thinks nobody at all.
This regime is not serving the general welfare,
It's doing a better job than the fucking CDC or FERC or ERCOT or all the other public bodies which are fucking up every time there's a cold snap in Texas or a heat wave in California or some crazy bat virus from Wuhan gets loose.
let alone the purposes of freedom and democracy that were once its anchors.
Public sector bureaucracies are quite capable of fucking over freedom and democracy and your drinking water and Vaccine distribution and ensuring a bit of snow crashes the Electricity supply and so on and so forth.
The keystone of twentieth-century labor law, the Wagner Act, was passed in 1935 to support the creation of unions and promote collective bargaining. As Senator Robert Wagner put it, “Democracy in industry means fair participation by those who work in the decisions vitally affecting their lives and livelihood.” This idea of “industrial democracy” aimed to correct the “inequality of bargaining power” between workers and employers. For many decades it did just that, as unionization rates rose steadily in the decades following the Act, peaking at about 35 percent in the 1950s and early ’60s.
Sadly, women and blacks and immigrants destroyed that paradise for the working man though Jimmy Hoffa getting bumped off didn't help any.
Today, with private-sector union membership at 6.3 percent,
and public sector unions- like that of the Police- really fucking over the tax payer though, for Blacks, a bullet too may be provided
the most salient bodies of law for most employees have nothing to do with unions.
Because they were shitty, Mafia infested, deeply racist and misogynist institutions. Still, one can always join a Police Union and shoot African Americans. Don't say the good old days have completely vanished.
Take for example the series of court decisions that allowed employers to extend arbitration agreements from disputes among companies and sophisticated actors to employer-employee disputes. This means that whatever rights employees theoretically have must be asserted in private forums that reliably favor employers.
The writers have a point. The 2018 Supreme Court decision in Epic Systems would scarcely have been possible if Hilary had won the White House. Will the Senate pass the FAIR act (Forced Arbitration Injustice Repeal)? An effective campaign on this issue could unseat many Republicans because of the very large number of people affected around the country.
But this is a case of getting the Politics right, not gassing on about 'Political Economy' and the Law.
Another example is the permissive category of the “independent contractor,” which both new companies (such as Uber and Lyft) and many longstanding outfits have used to reclassify those they employ as free agents—free, chiefly, from the legal protections employees still enjoy.
Again, legislation is the way to go.
A legal regime intended to balance power and promote democracy
was scrapped because it did no such thing
has given way to one that ignores the huge difference in power between companies and individual workers.
but makes stuff cheaper and better quality.
Law ignores this discrepancy and, thus, deepens it. This shift in law has helped create our world of low-wage and insecure jobs that endanger workers’ health and safety. As COVID-19 has shown, this endangers all of us.
What Covid showed was the CDC was shite. Public bureaucracies often are. On the other hand, raising compliance costs for the private sector has its limits. The safer thing is to say 'Boo to the Rich!' from time to time and let the matter rest.
The second presumption of the Synthesis is that legal equality, especially constitutional equality, is best understood as formally equal individual treatment, against a backdrop of a market reified as natural, rather than in light of the deep, structurally conditioned, and market-embedded differences that actually constitute the lived experience of race, gender, and class hierarchies. Formal equality forbids explicitly differential treatment of individuals in different groups, such as Jim Crow segregation, which means that it effectively requires “everyone to play by the same rules” on an unequal playing field. Shaped by this premise, much of the modern jurisprudence of equality turns a blind eye to the cumulative weight of historical systems, biases, and policies that perpetuate disparities in wealth, health, power, and privilege—from the segregated structure of our cities to the racial wealth gap.
Worse still, law courts shamelessly discriminate between lawyers who are stupid and inarticulate and who don't know the law- even if they regularly say 'Boo to the Rich'- and other lawyers who are smart and who present a compelling case. Clearly, we need to remove the presumption that lawyers are equal. Shit lawyers should be allowed to gag their opponents and beat them till they confess that they have no case to present. Of course, this should only be done for shit lawyers who regularly say 'Boo to the Rich'. Then everything would be hunky dory.
In the 1970s the federal courts asked whether the Constitution allowed unequal school funding, whether racial equality was consistent with “color-blind” policies that reproduced racial gaps, and whether Congress could undercut the effective right to abortion by banning abortion funding while covering the costs of childbirth with public funds. The Supreme Court answered “yes” to each question. Through these decisions, equality came to mean having the same opportunity to win or lose in the marketplace. But this was burdened, of course, by unequal histories of poverty and discrimination.
So what? When had things been otherwise? Who wants to change these things now? Do voters really want to spend their tax dollars on aborting fetuses all over the place?
Through Supreme Court decisions,
No, through the decisions of voters
equality came to mean having the same opportunity to win or lose in the marketplace. This was burdened by unequal histories of poverty and discrimination.
but also unequal histories of effort, enterprise, thrift, sobriety etc.
Finally, the third presumption of the Synthesis was that democratic politics was best understood, in practice, as a vehicle of irrational and opportunistic decisions, which should be constantly subjected to technocratic and juristocratic oversight. Some of this skepticism reflects the influence of “public choice” theory, and some of it implicitly reflects a longer history of technocratic condescension to democratic publics. Skeptics believe that the public is too ill-informed and ill-equipped to handle modern complexities, contending that we instead need insulated expert decision-makers—whether at the Federal Reserve or the Supreme Court.
Crazy people believe that Americans want 'equality of outcome' and publicly funded abortions at every street corner. Even crazier people think that voter wants the Fed and the Supreme Court run by a bunch of volunteers with time on their hands.
The public was redefined as a collection of discrete “interest groups,” then shut out of rooms where trade deals were negotiated or interest rates were set.
Very true! Homeless dudes were not invited in to piss on the floor and make long incoherent speeches. That's like straight up Nazism, dude.
For example, reigning trade theory from the 1980s into the last decade asserted that all “interest groups” had to be held at bay—treating both citizens and corporations as “rent seekers” who would disturb the grand bargains and decrease efficiency.
Rent only arises where demand or supply is inelastic. Increasing elasticity is a good thing. It means no 'surplus values' can be extracted. It puts an end to Marxian exploitation and therefore to 'false consciousness' and so forth. Sadly, when dealing with an actual Marxian behemoth determined to exploit the fuck out of its own people and to cheat and steal and get ahead by any means, Trade Theory was shown to be wishful thinking similar to the notion of a 'Rules Based International Order' or this shite these guys have published.
In practice, though, the public was shut out of treaty negotiations
Unlike what happened at the Treaty of Versailles where deputations of Lesbian organic farmers from Oregon freely intermingled with representatives of His Majesty's Government.
while corporations were brought to the inside and allowed to set the table. This resulted in trade regimes that gave capital priority—for example, access to transnational arbitration to protect their investments, to which labor had no similar claim.
Because labor was now a consumer and cared more about lower prices than the Solidarity of the Proletariat.
But this logic was not limited to trade. Government during this period came to be seen not as a vehicle for public will,
because the public had learned that a vehicle provided by the Government was likely to be very expensive and to be utterly shite
nor politics a place to debate, form opinions, and seek the public good—
which is what obtained in the paradise of Jim Crow which preceded our own evil age
rather, both were assimilated to the logic of the marketplace, where the only “rational” choice is maximizing one’s own individual benefits. Here, government—with its monopoly on the use of force and certain public institutions—was a suspect kind of monopolist. Free from the disciplining force of “competition,” it would inevitably become corrupt—a trough where “special interests” go to seek spoils.
The fact is, voters in the Seventies became disgusted with 'Corporate welfare'- tax payers didn't want to subsidize enterprises. The thing was wasteful and politically mischievous. GM gives you a job for 100 dollars and claims 30 from the tax man who takes 40 out of your wages to pay GM. Meanwhile, you have to buy a Toyota to get to work because GM cars are shit because you are shit at your job. That was the Seventies for you- at least that was how many remember it.
On this thinking, it made sense to try to roll back government (read: labor and civil rights protections, environmental regulation, etc.) to enable market competition and have government function like a market.
Politicians sell themselves as do pointy headed intellectuals and boring bureaucrats- that's a market right there
The Supreme Court and public institutions, enabled by both parties, blessed a range of moves to promote this ideal, most beyond the glare of constitutional law. This was the general rule: government would be rolled back at the same time that it was also rolled out.
and at the same time as it rolled on to its tummy and stuck a radish up its bum
The point—sometimes implicit, sometimes explicit—was to enable market logics to rule over more of public life. All the while, the marketplace increasingly became a locus of concentrated power.
Only in the same sense that it became the locus of diffused impotence.
These three presumptions emerged from a combination of intellectual networks and, yes, interest group politics.
No. Once lawyers understood that they would not be part of a Revolutionary Tribunal sending the bourgeoisie to the guillotine but, rather, be sitting in offices poring over the details of commercial contracts, the following three presumptions emerged
1) Law is a Service industry. If it doesn't contribute to the sum of economic activity, it will be pruned back or the polity will go to pot
2) Law is adversarial. The stupid lawyer will lose even if he has a good case. You have to be smart. But to be smart you have to accept reality, not live in cloud cuckoo land
3) Politics can do what the Law can't and would be foolish to try. But, unlike Econ, which subsumes the Law, Politics is autonomous and of the moment. The political direction taken may be the opposite of the one in which jurisprudence is moving. This is because politicians say one thing and do another.
On the one hand, scholarly debates about concepts such as cost-benefit analysis, economic efficiency, and public choice shaped the terrain of
the Economy. This in turn meant affected not the debates but the outcomes of
debates about law and public policy. Then, partisan actors and interest groups leveraged these debates to advance specific political agendas.
Things like the Cowles Commission and the Rand Corp were paying for themselves in terms of increased industrial efficiency. They also helped Governments win wars more cheaply. It was because they 'paid for themselves' that they spread outward into the political world. Reagan was hired to give a type of speech which his audience knew would benefit them in their mutual business dealings whether or not the Government adopted its arguments. By contrast, the Left was talking worthless shite about how White working class people must spend their time either destroying their own employers and their own pension pots or else starve slowly in sackcloth and ashes while apologizing profusely to every disabled Gay African American they chanced to encounter.
Business lobbies used the rhetoric of efficiency, regulatory capture, and the veneer of academic expertise to lobby for policies that benefited their bottom line.
There was a time when Lefty linear programmers and control theorists and so forth helped Businesses become more efficient. But the Left abandoned sciencey stuff to concentrate on paranoid ranting. Genuine Marxist 'econophysicists' are ignored- especially if they are non-White or female.
Thus worthwhile 'academic expertise' of even the most Lefty Greek or Argentinian mathematical economics ends up benefiting only the 'Law & Econ' school.
The process was at many moments driven by the right and propelled by the power of well-funded formations—from the Olin Foundation to the Federalist Society.
But the Left has no lack of Soros type backers. What they refused to do was develop cogent arguments. Indeed, misology was taken as a marker of ideological zeal and righteous indignation. Thus these cretins came across as cretins determined to be more cretinous than thou. This is an example of 'wasteful competition'.
But these ideas could not have become hegemonic without key establishment figures on the left. It was President Bill Clinton,after all, who delivered workfare,
which African Americans liked. If you live in a shitty neighborhood, you want the able-bodied to go to work rather than hang around smoking dope and raping you.
“financial reform,”
as opposed to financial craziness
and full-throated neoliberalism in international trade.
Which killed off the ghost of inflation and permitted real incomes to rise
It is only today that a position on money, budgets, and finance that could truly serve justice and democracy is starting to emerge from the wreckage of years when progressives conceded that there was no alternative to the neoliberal paradigm.
No. That happened more than 4 years ago, when Trump took office. Justice and Democracy require punishing China and protecting American jobs.
The greatest success of neoliberal ideology may have been to make the state appear all the more like its caricature in neoliberal thought: the results provide more proof of the “failure” of the state and of democracy itself.
The greatest success of these cretins would be to make themselves appear to be cretins whose time has come- thanks to COVID & Biden's victory.
There are three principles that might help us move toward a new legal imaginary.
One principle is enough- take drugs till your legal imaginary looks real sexy to you and you start jizzing in its face.
Though these do not provide a methodology for scholarship or decision-making, they do represent a principled shift of legal inquiry to counter the precepts of neoliberal thought and the familiar discourses of legal neutrality. They also orient law toward a more democratic future, where the central task is not optimizing wealth and technocratic rule, but creating a more equitable and inclusive democracy and economy.
Which voters will reject quickly enough.
The first step is a reorientation from efficiency to power. Whereas, for decades, we have been asking what legal regimes are “efficient,” we should instead be asking what regimes produce the kind of widely shared political and economic power that is fundamental to a democracy.
So, follow the example of the People's Democratic Republic of Korea.
One way to operationalize this 'principle' would be to say 'if a shit lawyer is faced with a smart opponent; the shit lawyer should have the legal right to tie up and beat the smart lawyer till he concedes defeat.' This may not be efficient. But it addresses the problem of power.
More generally, our guys should get to beat the fuck out of people we don't like coz historically stupid people got the short end of the stick while smart people made out like gangbusters.
This is not to insert politics and law where they were absent before, but rather to ask how we can deploy them toward the freedom of all, not just the ruling autonomy of a few. Markets are not “free”; they are riven throughout with power disparities which are, themselves, products of law and policy.
Nor are Courts or Law Schools or Government Departments. Indeed, these things are expensive. Defund them if they aren't efficient. As for power, guns decide who wields that.
We construct the kinds of markets we want—and that means that we should embrace the capacity of law and politics to construct a radically more inclusive politico-economic order.
Get rid of academic or other requirements for 'right of audience'. Let lawyers compete the way prostitutes do. No billing without a b.j should be our motto.
This shift helps make sense of why, for example, a new approach to labor law and anti-trust law should be central to a just political economy program. The revived attention being given to corporate power and anti-monopoly policy points towards a renewed use of public authority to check concentrations of private power. Similarly, this commitment to rebalancing economic power manifests in the fights over worker rights—from their evisceration by measures such as Prop 22 in California, to the efforts to expand labor’s ability to organize and secure benefits for all. Labor law and the law of finance and money are suddenly among the most dynamic in the legal academy today, as LPE scholars have begun newly mapping the state power at the heart of our systems of market coordination, finance, and banking, and theorizing how they might be designed to distribute, rather than concentrate, power.
LPE scholars have shat the bed. They have written risible, ignorant, nonsense. Meanwhile smart people- like those who work for Google- have dispensed with lawyers and taken matters into their own hands. Google's Management, obedient to market forces, has had to break ranks.
Economics is indeed reshaping Corporate and Government behavior. The Law may catch up. It may not. The thing scarcely matters. Much of its machinery is obsolete or already has been disintermediated. On top of that, you have 'LPE' type cretins who will turn what remains into a repugnancy market. As happened in India, the Courts will have only nuisance value.
Second, we must recognize the ways that formal equality fails and ask how our laws might cultivate a deeper form of equity—the equality of status and dignity that comes from dismantling historical structures of class exploitation and racialized and gendered subordination.
One way forward is to allow everybody to sue themselves for Caste discrimination- as I have explained elsewhere.
There are many challenges here. We must unravel how racism, the marginalization of social reproduction, and the coercion of care are entangled with our political economy.
Sadly, these cretins can't unravel shit.
We must work against the grain of liberal thinking about inclusion that has deeply marked law and mainstream legal theory, and simultaneously against an older tradition of political economy that encoded a racialized and gendered conception of the nature of production and the economy.
But you are too stupid to do so. Anyway, I remember reading shite like this 30 years ago. If these cretins couldn't do it then- when the Economy was simpler- how will they do it now? Their mean I.Q drops decade after decade. Many may already be suffering from incontinence. Others may have regressed yet further and are currently curled up in a fetal position- protesting Patriarchy after their own fashion.
We must theorize the relationships between the carceral state and capitalism and ask how we can constitute democratic publics in a global system that was designed for exploitation and exclusion.
Why? When did doing stupid shit like that help anybody? Smart people are finding ways to cure cancer and do quantum computing. Guys like you should give up Academia for finger painting.
We need to bring these insights to bear upon a constitutional tradition that enacts the very “encasement” of the economy to which we are opposed—all in the midst of a legal culture that celebrates tactics like litigation over strategies of movement-building and legislation. But the generativity of this work is also clear, as scholarly debates about reparations, dismantling the carceral state, and intersectional strategies for labor organizing command a new conversation within and beyond the academy.
Kamala Harris should pay reparations on behalf of her slave owning ancestors to herself. The carceral state is expensive and may get dismantled by itself. Intersectional strategies can be used by Union Busters by hiring bi-racial transpeople to give b.js to Labor organizers and then threatening to tell their wives.
But how is this a 'new conversation'? The thing is old hat. It may have been funny when South Park did it- but that was four or five seasons ago.
Third, we must limit the familiar anti-politics of legalism and technocratic decision-making through a commitment to democratic politics.
The vast majority keeps telling you to shut the fuck up and do something sensible with your lives- but you won't listen.
Democracy has to mean more than the manufacture of public opinion alongside elections. At its heart it means that majorities set the country’s direction, not the constitutionally gerrymandered pseudo-majorities of the senate and electoral college or the conclusions of neoliberal trade theory.
Bring back Jim Crow. The majority of the US population is White.
Democracy also means deeper political empowerment, such as the capacity of communities to mobilize against the hoarding of political decision-making power in wealthier (and often whiter) constituencies.
How about the Whites unite to take back the country? What's to stop that outcome? LPE scholarship?
How can we counter the power of technocratic elites without abandoning the need that any democracy has for expertise?
By being smart, not by talking bollocks.
And how can we build more participatory and inclusive political institutions without hampering the exercise of state power, and without simply reproducing class and racialized biases?
By saying and doing smart things, not talking bollocks incessantly
As we reformulate the central question in fields such as administrative law, new campaigns for community benefits agreements, wage boards, and participatory budgeting are taking root.
Indeed. But they are too costly in terms of time and effort and compliance. Thus they will quickly turn to shit just as similar schemes turned to shit in the past. This time, it will be quicker because the pace of Economic change has picked up.
This is not to say that smart people can't set up 'hackathons' and quickly pool data and analysis and figure out novel solution concepts. But LPE can't be part of that type of 'spontaneous' order-creation because of its roots in Grievance Studies of a paranoid Nineteenth Century sort.
