Next week, the Supreme Court will hear arguments in a case that may allow some employees to foist the cost of their religious exercise onto their co-workers. Such an outcome, beyond its obvious unfairness, threatens to reduce collective labor power by pitting workers against each other.
In recent years, labor activists have tried to summon one of labor’s legendary creatures — the wage board — to aid their cause. Unfortunately, reinvigorating tripartite institutions like wage boards is an uphill battle in the United States, given structural economic forces and institutional arrangements that constrain worker power. But two recent wage board iterations in Seattle and California may stand a fighting chance, both because of the organizational conditions that prevail in these jurisdictions, and because of board structures that provide workers the opportunity to exercise their voice and authority more meaningfully.
As we debate matters of near-shoring, friend-shoring, and globalization, we must not forget the lessons of the recent past: from Argentina to India, the pursuit of open economies involved a brutal crack down on labor union resistance. In the process, many governments unleashed dynamics that now threaten the survival of democracy itself. Hope, though, can be found in the recent strengthening of labor movements globally, as well as the potential to bolster unions through industrial policy and the transition to a green economy.
One the CLS movement’s most significant contributions was the theory of law’s inherent tendency towards indeterminacy. Yet, despite broad agreement about its importance, the thesis itself is frequently misunderstood. This confusion arises, in part, because CLS put forward two very different approaches to formulating the indeterminacy thesis. We can, however, unify these two approaches by regarding indeterminacy as a kind of collective experience that legal actors produce as part of their interpretative work, and fight for as part of their shared political projects.
The D.C. Circuit appeals court heard arguments last month in a bizarre case: the Jewish National Fund is leading a lawsuit against the U.S. Campaign for Palestinian Rights, a nation-wide coalition of groups advocating for Palestinian liberation, on accusations of supporting terrorism. A look at the political economy of terrorism tort litigation shows how this lawsuit is not merely an instance of terrorism laws potentially trampling human rights; it is also an aggressive assertion of a right to colonize, and to do so in peace and quiet.
An alliance between religious and economic conservatives is playing a central yet overlooked role in the resurgence of concentrated economic power in America, resulting in the transfer of public funds, services, and decision-making away from more democratic institutions. Nowhere is this more evident than in the rise of “government-religious hospitals”: these hospitals are state owned, yet religion permeates their halls, and faith dictates the care they offer. To mitigate the risk that these arrangements pose, we must make innovative use of LPE’s tools, including antitrust, public utility regulation, and public options.
A growing number of employers are relying on Training Repayment Agreement Provisions to discourage workers from quitting. Courts, meanwhile, have routinely rejected legal challenges that claim these agreements violate employment laws, such as wage-and-hour laws and non-compete limitations. There is, however, another legal mechanism to stop this harmful and mobility-restricting practice: consumer law. When firms treat workers as their consumers by selling them services and credit products, the workers become worker-consumers and consumer law becomes work law.
This past month, the University of California announced a $4.5 billion investment in the Blackstone Real Estate Investment Trust. By partnering with one of the largest private landlords in the US, the University is directly contributing to and profiting from housing scarcity and tenant disempowerment. It is also betraying its public mission. As students squeeze into overcrowded dorms, or sleep in vans, tents, and closets, the hour has come for the UC to use its massive capacity to help solve the housing crisis, rather than prolong it.
Electricity, trucking, telephones, and banking: each of these sectors represents an exception to the mainstream model of efficient markets. They are typified by network effects, positive spillovers, high startup costs, and highly variable load rates. They have also experienced severe degradation from the privatization and deregulation that pervade life in the past half century. Networks, Platforms & Utilities promises a new approach to these sectors and others, one that makes the book an important pedagogical pathway for the emerging Law and Political Economy movement.
What happens when we stop generalizing about the economy from the starting point of the grain market, as neoclassical models all seem to, and start generalizing from the post office, or the operating system? That’s the kind of question that Networks, Platforms, and Utilities puts on the table, and it is a major accomplishment. From an LPE perspective, however, one might worry that the book’s current approach is insufficiently attuned to the “political” part of political economy.
This week at the blog, we’re sharing a few of our favorite posts from Notice & Comment’s recent symposium on Networks, Platforms, and Utilities, a new casebook by Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand. First up: the authors explain why it’s time to revive the field of “regulated industries” and to recover the idea that public interest demands a substantial measure of public control over society’s infrastructural resources.
The relationship between the criminal legal system and racial subordination has been well-documented. Much less attention has been paid, however, to racial subordination perpetuated by the civil legal system. In a wide range of cases, including eviction, debt collection, and child support, civil courts routinely extract resources from poor, predominately Black communities, and transfer them to white-controlled corporations or to the state itself. Although some of this occurs through the substance of the law, how the courts interpret and implement the law plays an equally important role.
Recent technological developments are transforming the basic terms of worker compensation. Rather than receive a salary or predictable hourly wage, workers in the on-demand economy are often paid using opaque and constantly fluctuating formulas, allowing firms to personalize and differentiate wages in order to influence worker behavior. These payment schemes violate long-established norms of fairness, undermine economic stability, and make it nearly impossible for workers to predict or understand their compensation. As a result, many workers now experience their jobs as a form of gambling, in which they are being tricked into working longer for less.
As we grapple with the law’s ability to address today’s most powerful corporations, one interesting yet largely forgotten set of cases can help us find our bearing: the “death telegram” cases. These suits involved claims for emotional distress against telegraph corporations for failing to deliver telegrams involving the death or illness of a family member. Astonishingly, nearly half the state courts that encountered these claims allowed them, in spite of the long-established common law rule that absent physical injury, mental anguish alone could not be recognized in law. This exception was justified, in part, because the companies were seen as “public service corporations” – a monopolistic business entity that controlled access to a vital public resource and had special emotional duties to its customers. What would it mean to revive such a conception of the corporation today?
Through redistribution, or perhaps a scheme cooperative ownership, we can mitigate inequality while still harnessing the power of markets. This is, at least, the promise of market socialism. Yet all markets, even socialist markets, require its participants to act with a certain set of motives if they are to produce efficient outcomes. And it is these motives that inhibit us from caring about one another in our productive activities. To avoid such alienation, we must decommodify the means of production and reallocate control of capital from private corporations to local workers and municipalities.
