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Weekly Roundup: September 23, 2022


At the Blog

On Monday, Luke Herrine examined the lawfulness of Biden’s student debt jubilee. While there are good reasons to think the current reactionary Court will be hostile to debt cancellation, any decision the Court makes will mark merely another phase in an ongoing political struggle. As Herrine notes, “it has become increasingly mainstream to question whether the Court’s judgments should be taken as the final word on any legal subject, especially if that judgment divides along partisan lines…. Now that the legal argument opened up this political space, it will not be closed simply by a court ruling one way or another. It might even pick up momentum if the Court stands in its way, since those who support student debt cancellation will find themselves joining forces with other movements to resist judicial supremacy.”

On Tuesday, Lisa Heinzerling continued our symposium on Thinking like an Economist, by reflecting on the persistence of the economic style of reasoning in regulatory policy. For fifty years, presidents of both parties have offered a vision of regulatory policy that takes the economic style as its North Star. This unbroken practice, she writes, “has persisted for so long that it has begun to change the law itself. For example, several years ago, the Supreme Court rejected the EPA’s decision to regulate toxic air pollutants from power plants under the Clean Air Act because the agency had not considered economic costs in deciding whether to regulate. In taking a narrow view of EPA’s authority under the statute, the Court relied in part on presidents’ longstanding practice of requiring cost-benefit analysis for agency rules. Lower courts have, in turn, relied on the Supreme Court’s decision in requiring consideration of economic costs in other regulatory contexts as well. An explicit withdrawal of presidential approval of this practice might begin to rebalance the scales and discourage further judicial distortions to statutes based on the presumed unimpeachability of economic thinking.”

And, on Thursday, Erik Peinert concluded the symposium by explaining how the economic style has provided cover for fundamentally reactionary arguments. As he writes, “The economic style is not intrinsically a conservative way of thinking. As Berman very effectively shows, the Reagan administration abandoned economic thinking in spheres where it would have favored progressive conclusions…. However, economic thinking has also provided effective cover for fundamentally reactionary arguments and beliefs, handing rhetorical advantages to conservatives in general. This also means, for example, that the fundamental conservatism of some figures in the Obama White House, like Larry Summers, could be denied by wrapping their ideological positions up in a package of supposed economic expertise. The influence of such figures arguably prevented the Obama administration from seeing the current state of politics and economic policy as fundamentally broken in a way that would have justified transformative change, never mind made it morally necessary.”

In LPE Land

Mark your calendars: On October 17, Sara Nelson will deliver the Gruber Distinguished Lecture in Women’s Rights at Yale University. She will be in conversation with our own Amy Kapczynski. Watch this space for livestream details!

A tantalizing speech by Lina Khan at Fordham about taking “unfair methods of competition” seriously as a legal standard. If you vaguely recall reading somewhere about the importance of the FTC articulating the meaning of “unfair methods of competition,” you wouldn’t be mistaken.