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Weekly Roundup: June 3, 2020


This week at the blog…

the conversation on the relationship between socialism and constitutionalism (started by Willy Forbath last week) continued.

Sanjukta Paul explored the implication of the inevitably constitutive role of law in economic coordination for the relationship between economic regulation and structural constitutionalism, providing a drive-by revisionist account of the National Industrial Recovery Act and Schechter Poultry, the Supreme Court case that struck it down.

Blake Emerson drew out some connections between the Weimar Constitution and the Progressive and New Deal reforms that created the modern administrative state and analyzed implications for the relationship between economic democracy, administrative law, and constitutionalism.

We also cross-posted (returning hero) Kate Redburn’s quick take on Bostock, which originally appeared at Jacobin (and featured in last week’s weekly roundup).

AND! We announced our summer webinar series, “Mapping U.S. Law and Political Economy” and spread the word about an amazing conference on law, money, and technology hosted by our friends at APPEAL and YSI.


And our hand-picked tasting menu from around the internet:

Sarang Shah:

I often enjoy reading a review of a book without ever feeling a need to read the book itself. Call it a reverse Borges: rather than write a fictitious review of a non-existent book that I myself would have liked to have written, I would rather read a good review of a book that I know I’ll never allot the time to actually reading. 

This is not one of those times. The reviews for a new book, Trade Wars are Class Wars, by Matthew C. Klein and Michael Pettis, have made the book itself sound like its worth an attentive read from start to finish. The book presents a narrative-focused account on international macroeconomics as an influential structuring agent over microeconomic choices and domestic political movements. Most excitingly, the book helps destruct common myths about international macroeconomics, such as the necessity for the United States to become export-oriented nations again to overcome its current account deficit, or the virtuosity of Germany’s export-driven thrift. The thesis of the book is as plain as the title, and I look forward to diving into the book over the coming weeks.

On a different note, I’ve also been diving into the possibility of antitrust enforcement against platform most favored nation (MFN) clauses, as per this essay by Jonathan Baker and Fiona Scott Morton. Like exclusive dealing arrangements, MFNs are contractual clauses that dominant firms use to restrain less dominant firms in how they dispose of their product or conduct their business. In this case, MFNs are used by internet market platforms, like Amazon and Doordash, to prohibit firms who sell their product over these platforms to offer these same products at a lower price over another platform, their own website, or even at their brick and mortar store. This reading is part of an overall project to try and piece together a coherent vision of a fair economy one practice at a time, using antitrust law as one tool in a broader toolkit for achieving greater economic democratization.

Isabel Echarte:

Dove into some anxiety-inducing reads on the state of the COVID-19 economy–you know, for fun. James Galbraith argues that the federal government’s stimulus efforts are failing because of long term structural changes in employment, consumption, and household debt: “This economy was in many ways prosperous, and it provided jobs and incomes to many millions. Yet it was a house of cards, and COVID-19 has blown it down.” And if you really want to get into the nitty-gritty of the stimulus efforts (specifically, the Fed’s), check out Nathan Tankus’s wildly popular newsletter. Bloomberg just profiled him for that work–the article provides some good background for folks unfamiliar with Nathan, though we didn’t need Bloomberg to tell us he’s excellent. 

Don’t you worry, I’ve also included some positive news: Mehrsa Baradaran’s Color of Money inspired Netflix’s CEO to put the company’s money in banks serving black communities. Very exciting! You should read the book (I’m currently going through it now and can vouch for at least the first 80 pages). Until you get your hands on the book, Mehrsa has also published an op-ed: she describes the banking sector’s failure to serve and benefit the majority of Americans and makes the argument that “[p]ublic markets can take over the places that private markets have failed to adequately serve.”

Lastly, Katharina Pistor reviews Thomas Piketty’s Capitalism and Ideology: “Missing . . . is a deeper appreciation for the less visible processes of institutional change. These processes often work at cross-purposes to the big ideas that motivate social and political movements or legitimate the actual allocation of power and wealth. Such change may be incremental and difficult to detect with the usual tools of an empiricist. But that does not make them directionless or less relevant. In fact, strategic, well-resourced actors constantly push for change outside the limelight of politics and ideology, and often claim the authority of the law to fend off critique and legitimize success.”

Anna Wherry: 

On the public health beat:  

Not completely “law” and political economy, but this piece on the “shape” of epidemics is fascinating: the hydraulic metaphors we use to describe waves shape our responses to epidemics and other public health emergencies. The article traces how waves became a language for talking about epidemics, a device for data visualization, and a tool of governance. Hydraulic metaphors, while helpful, can also “obscure the ways that what we often call natural disasters are not physically autonomous—something we simply must accept—but rather deeply shaped by human action, both before such disasters hit and as they are managed. This is especially true of epidemics, which are strongly contoured by measures societies take—or fail to take—both to prevent impending epidemics and to mitigate their effects when they strike. We also know that risk is not evenly distributed across the social world but instead follows structures of inequality, by class, race, gender, nation, and many other axes of difference—facts not well captured by the most pervasive diagrams of COVID-19, with models, predictions, and waveforms that focus solely on infection and death counts over time.”

And these two pieces on public health responses to COVID and Native American tribal governance. This essay in the Stanford Law Review argues that tribes should have regulatory powers over nonmembers in Indian country during a pandemic. Not only have federal courts made it difficult, although not impossible, to regulate nonmembers on tribal land, impacting tribal governments’ responses to the Coronavirus. The U.S. government’s aid to tribes as part of the CARES act was also inadequate. The federal government allocated funds according to U.S. Census data and not tribal government’s own membership numbers–and Bureau estimates that it undercounted tribes by nearly 5 % in the 2010 census. As the article argues, “the same coronavirus that highlighted the necessity of an accurate count is threatening to condemn the roughly one million Native Americans living on reservations to 10 more years of political underrepresentation and economic insecurity.” At present, self reporting census data on tribal land remains low–sometimes below 5%–and the federal government has not taken steps to collect the remaining data safely and respectfully.

Luke Herrine: I haven’t had much time for internet reading this week (beyond the deluge of Supreme Court decisions), but I have been reworking an article in which I try to bring some of the spirit of moral economy into modern consumer protection law. So I’ve been looking back at some articles on the topic (y’all don’t need the original E.P. Thompson piece or James Scott’s famous intervention). To me the most clarifying article is William Boyd’s synthesis of the scholarship on “just price”, which also traces some of the unacknowledged influences that just price thinking has had on modern regulation. It’s an article that will guide my reading as I dig deeper into the history of moral economy and just price. From a different angle, Marion Fourcade’s SASE Presidential Address deconstructs and rebuilds the idea of “moral economy” in multiple ways–pulling together important work from sociologists like Vivana Zelizer and Jens Beckert on the moral work that goes into economic action. This economic sociology literature has come closest to confrontation with legal reasoning–and consumer protection!–in the ongoing work of Barbara Kiviat, whose article on how state-level insurance regulators have interpreted what counts as “fair” in car insurance underwriting (this builds on Barbara’s previous work on how algorithmic anonymity of credit scoring interacts with the human need for reason giving). There’s much more to dig into, of course. I’ve finally begun reading Chris Desan’s masterful book on money design in England, and, wouldn’t you know it, it provides fresh perspective on moral economy and the social construction markets.

Caroline Parker:

As governments ramp up recovery spending, it seems like everyone recognizes the opportunity to advance decarbonization and adaptation goals. Here some ideas for “just recovery” spending that I found especially imaginative and fun to read:

On Tuesday, House Democrats unveiled their long-awaited climate plan. The plan sets some ambitious domestic targets, including a national price on carbon, a national net-zero emissions goal, and consistent clean energy standards. But some in the climate movement say it doesn’t go far enough: it does not include a ban on fracking, a ban on fossil fuel exports/imports, or a moratorium on pipelines. It is also silent on crucial questions about global governance and cooperation. The COVID pandemic has given rise to several good pieces exploring the connections between zoonotic disease and meat consumption (think headlines about “wet markets”) as well the brutality of the meat industry for workers (think massive outbreaks in meatpacking plants) . With this week’s headlines about another “pandemic potential” flu that originated on pig farms, the case against factory farming seems stronger than ever. I am thinking  anew about Michael Pollan’s recent NYRB piece on our broken food system.