At the Blog
On Monday, Frank Pasquale continued our poppin’ symposium on Beth Popp Berman’s Thinking like an Economist by considering two ways we might respond to the economic style run amok. We could try to reform the economic style to better account for the true benefits and costs of various policies. For instance, when evaluating the implementation of statues like the ADA, we could better attend to the widespread benefits of universal design: “A subway station with an elevator does not just help persons in wheelchairs; it also assists parents with baby carriages, travelers with heavy luggage, weekend warriors recovering from knee pain, workers carrying their equipment, and so many more persons.” Such co-benefits of policies are manifold and often overlooked. But if, as Berman argues, Republican administrations are far less likely to be consistently constrained by the economic style, then this approach may have the unintended consequence of tilting the policy playing field to the right. Instead, sidestepping—rather than reforming—the economic style, may be the wisest course. To pursue this latter approach, Pasquale writes, “reformers will need to sharpen values-based arguments. For example, when public transit is built, this infrastructure should accommodate the disabled as a matter of course. While there may be situations or projects where particular aspects of accommodation are too difficult to achieve, the presumption should be for inclusion.”
On Tuesday, Landon Storrs argued that the “economic style” prevailed, in part, because many liberal Democrats were forced out of government or toward the political center by charges of disloyalty to the U.S. government. If, as Marshall Steinbaum argued last week, Berman’s story was one that adherents of the economic style would prefer us to believe, Storrs offers a much darker backstory to the rise of the economic style. As she argues, the institutional economists and social Keynesians that pre-dated the economic style did not just fall out of academic fashion or become irrelevant to the problems at hand. Instead, they were harassed by investigations for their left-leaning views and connections. “As a result, policy experts who wanted to be in government service became very, very cautious. Not only did they eschew association with any cause or person who might be under suspicion, but, crucially, they adjusted the language (and sometimes the substance) of their recommendations…. This was the historical context underlying the economic style’s appeal to liberal Democrats, as well as its longevity in government agencies.”
And on Thursday, Alvin Velazquez explained how, under the NLRB’s current joint employer standard, labor law protects corporate interests better than corporate law does, leaving millions of workers without meaningful collective bargaining rights. As he writes, “The Trump Board’s joint employer standard—which requires that a putative joint employer exercise ‘direct and immediate control’ over terms and conditions of work—plainly fails to protect workers in the fissured workplace who labor for the benefit of multiple companies. The standard also protects corporations even more than state corporate law does. A number of state corporate law cases acknowledge that parent companies can be held liable for the actions of subsidiary corporations. Other cases hold that franchisors can be held responsible for actions by franchisees.” The Trump Board’s selective borrowing of corporate law concepts, he argues, illustrates the need for alternative approaches to developing the joint employer standard, and, moreover, the explicit elevation of the priorities of federal labor over the priorities of state corporate law.
In LPE Land
In a few short hours, the one and only Talha Syed (UC Berkeley) will be discussing an LPE approach to Torts! The event is both in-person and virtual, so put on your favorite pajamas and discover how “an LPE approach offers not only distinct substantive insights into tort law but also, and perhaps as importantly, a distinct methodology for approaching law in general.”
In the NYT, Lindsay Wiley argued that courts are eroding the legal foundations of privately financed public health by allowing employers, insurers, pharmacies, and hospitals to opt out of doing their part on the basis of their private religious views. (You might note the kind shout out to Kate Redburn’s recent post on “The Law and Political Economy of Religious Freedom.”)
Sanjukta Paul has launched her own personal blog. In her inaugural post, she weighs in on the discussion of Beth Popp Berman’s Thinking like an Economist, and the need to reclaim the notion of efficiency.
Over at Slate, Brian Callaci and Sandeep Vaheesan explain how fast food corporations, which successfully led a the fight to remake antitrust law to legalize franchising, ultimately paved the way for Uber. The Biden administration, they argue, can and should rein in such one-sided business models.
An article in Nature points out that the ultraconservative majority on the Supreme Court is undermining science’s role in informing public policy. It’s a good thing we aren’t facing any ecological or public health-related crises.