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Weekly Roundup: November 10, 2023


At the Blog

On Monday, Zephyr Teachout explained how various forms of algorithmic wage discrimination – in which workers are paid personalized wages determined by opaque algorithms – may soon move from the gig economy into the formal employment sector, and why these management techniques threaten to undermine important democratic values. As she writes, “Beyond undermining the liberties of the moderns, intrusive surveillance and experimentation and differentiation also necessarily undermines the liberties of the ancients. The people being surveilled are not just workers but citizens, who must vote, serve on juries, share their experiences with the public, and engage in public debate. Citizens are also subject to some of the same monopoly practices in their role as consumers, but the relationship between the consumer and surveillance capitalism and the worker and the surveilled workplace is different. At work—when labor markets have a handful of dominant players—employees don’t even have the theoretical option of opting out of being watched. Negotiating the terms of surveillance and experimentation simply doesn’t happen. And unlike the consumer, the worker is surveilled for the entire scope of their workday, with no default right of respite.”

On Wednesday, Jerry Davis reflected on the disappearance of public corporations from the American economy, and whether this foretells a coming age of coops, mutuals, and other noncorporate forms of enterprise. As he writes, “Noncorporate forms of enterprise have proven surprisingly resilient in the US. The Fortune 500 list for 2022 includes at least a dozen mutual insurance companies, including State Farm (#44), New York Life (#71), and Nationwide (#83). The single largest shareholder of over 350 of the 1000 largest American corporations is Vanguard—also a mutual. Land o’ Lakes (#213) is an agricultural cooperative owned by its producer-members, as are Ocean Spray and Blue Diamond. Ace Hardware is a retail cooperative in which local stores can be attuned to local needs and tastes yet gain the economies of scale of a large-scale brand. Jessica Gordon Nembhard’s brilliant book Collective Courage documents that cooperative forms thrived in African-American communities for generations – often overlooked by those who find data about the economy solely through online databases. And the US is home to nearly 5000 credit unions, which by law are not-for-profits, owned by their members.”

And on Thursday, Maryam Jamshidi warned that Florida’s recent decision to ban local chapters of Students for Justice in Palestine is yet another sign of creeping authoritarianism in the state. As she writes, “In raising the specter of criminal penalties, the Florida SJP ban represents a dangerous escalation. While students and professors who are pro-Palestine have long been doxed for their advocacy (most recently by the rightwing group Accuracy in Media) and while some—including law school faculty members—have recently called for employment opportunities to be rescinded, as well as for other punishments to be meted out against pro-Palestine students, it is a shocking and unprecedented move for a state or any government entity in the United States to effectively accuse these students of engaging in terrorism.”

In LPE Land

A reminder that today (Friday, November 10) there are two can’t-miss events: at 12:10 ET, Saule Omarova will be discussing (on zoom and at Yale) why public interest students should study banking and financial regulation, and at 4p ET, Veena Dubal, Marshall Steinbaum, and Luke Herrine will be discussing (on zoom) how Uber, Lyft, and other “rideshare” companies took over the taxi industry.

On Monday, November 13 at 12:30p ET, Ifeoma Ajunwa will be discussing her recent book, The Quantified Worker, with Yochai Benkler and Sharon Block. The event is both in-person (Harvard) and on Zoom.

For those in DC, the LPE Project and the People’s Parity Project are holding a happy hour at Franklin Hall on Thursday, November 16th from 6:00-8:30pm. Law students, professors, practitioners, and non-lawyers all welcome!

On Monday, November 20th, at 12:10p ET, our Law & Organizing initiative will be holding a virtual event on Power-Building for the Long Haul, featuring Rachel Gilmer (Dream Defenders), Astra Taylor (Debt Collective), and Tara Raghuveer (KC Tenants), and Daniel Martinez HoSang (Yale).

In the latest issue of the Drift, scholars, lawyers, and advocates reflect on the consequences of the Supreme Court’s latest rulings and the specter of important cases currently on the docket. Featuring some of our favs, including Aziz Rana, Diana Reddy, Noah Rosenblum, and Sam Moyn.

In Politico, Marcia Brown reported that the next generation of law students is obsessed with Lina Khan. No lies detected.

In ProMarket, Zephyr Teachout (on double duty this week) passed along news that the consumer welfare standard had died, and offered a brief summary of some of the causes of its demise.

In the UCLA Law Review, an interesting new paper by Scott Cummings and Madeline Jani: Over the past forty years, a federal competition rule has been interpreted to require that federally funded contracts be awarded to bidders based on “cost-effectiveness,” rather than a broad socioeconomic return on the investment of public funds, thereby stifling innovative local policy efforts to address labor precarity, racial inequality, and environmental degradation.

Finally, in a new Note in the Yale Law Journal, Daniel Backman probes the implementation and aftermath of the National Industrial Recovery Act to reveal how a revived antimonopoly presidency could rein in monopoly power.