At the Blog
On Monday, Sandeep Dhaliwal explained how Eighth Amendment jurisprudence has transformed the prohibition against cruel and unusual punishment into merely a right to credit. Private equity firms, cloaked under protective securities laws, have increasingly acquired companies that provide goods and services in U.S. jails and prisons, extracting as much money as possible from prisoners and their families. This private pillaging, Dhaliwal argues, is made possible by a particular understanding of prisoners’ rights. As he observes, “The Eighth Amendment prohibits cruel and unusual punishment. Deprivation of basic needs violates this prohibition. The flipside, then, is a state obligation to provide for a prisoner’s basic needs. Much turns on judicial interpretation of this right. If expansively interpreted, it places demands on the state. If narrowly interpreted, it accommodates state neglect. The Eighth Amendment thus gives us a preliminary boundary line, a constitutional floor for provisioning in prisons. Where the government’s direct obligations end, the potential for private companies to profit, from the redistribution of financial pressure onto vulnerable communities, begins.”
On Tuesday, Sanjukta Paul joined the LPE/theory jamboree and, like the Lorax, decided to speak for those who have no tongues: the legal theory quietists. Paul argues that such quietism about high-altitude legal theory should not be understood as an aversion to theorizing as such, but rather as a consequence of the belief that the most productive theorizing will occur a step below these abstract heights, and will involve contesting and clarifying the mid-level legal and economic concepts that have the most effect in the world. As she writes, “We need to work out in more precision and detail what we mean by, e.g., fair competition, fair price, technical (or productive) efficiency, the cost of labor (in a real rather than monetary sense), and more. We need to think about how egalitarian a distribution of economic coordination rights is required and how that should be balanced with other values. We need to think more concretely about how various economic governance mechanisms that are all broadly egalitarian but potentially incompatible in practice should interact with each other, and if some are more appropriate to certain sectors.” It is at this level of analysis that LPE scholars should maintain their attention.
On Thursday, Sandeep Vaheesan and Andy Fitch examined the book that has been misleading antitrust scholars for decades: the (in)famous Areeda-Hovenkamp treatise. Stephen Breyer called it more valuable than circuit court precedents and Supreme Court Justices. Yet, as Vaheesan and Fitch show, the treatise adopts misleading legal interpretations that systematically favor corporate power in at least two key areas: thresholds for exclusive-dealing foreclosure and the efficiencies defense for mergers. As they write, “Antitrust practitioners should stop treating the Hovenkamp treatise, which covers seemingly every antitrust topic, as a ‘straight description’ of the law. Rather, just like every other legal document, it should be read with a critical eye. In its subtle reinventions of the case law and in its omissions, the treatise appears to function as a brief for the defense bar.”
In LPE Land
Cool job alert: The Journal of Law and Political Economy is looking for a part-time person (up to 20 hours per week) to manage the ongoing daily operations of the journal.
Cool job alert #2: Common Wealth is hiring a Director of Policy and Advocacy. Are you excited by designing bold solutions? Do you like building coalitions for systemic change? This one’s for you.
In the Boston Review, Amy Kapczynski, Reshma Ramachandran, and Christopher Morten argue that instead of pouring public funds into private industry—as the United States did with COVID-19 vaccines—we must build public capacity and prioritize public objectives.
As discussed over at the Eviction Lab, a new study shows that the Americans at the highest risk of being evicted are children. We look forward to Republican lawmakers arguing that this is yet another reason to loosen child labor laws.
In the NYRB, Kim Phillips-Fein discusses two new books on depredations and vitiations of the private equity industry.
CFP reminder: The deadline for proposals for the 14th Annual ClassCrits conference, “Demanding Justice in the Face of Retrenchment,” is a week from Sunday (October 15).