The threat of precarious work does not come exclusively from marketization swamping a shrinking welfare and regulatory state. It comes as well from a metastasizing and thoroughly racialized carceral state, one that simultaneously speaks the language of public violence and sings in the liberal key of choice. Even critical accounts of the criminal legal system fail to fully capture the relevance of this dynamic, focusing only on how it produces economic exclusion, not also incorporation on subordinated terms.
The relevance of LPE for Europe might not be instantly obvious. LPE in the U.S. gets part of its conceptual thrust from its opposition to the dominance of Law and Economics, a framework that never achieved the same kind of intellectual hegemony in Europe. But there is a European parallel that could ground critique: the guiding role that ordoliberalism has played in the structuring of the supranational economy. But to get a grip on what LPE has to offer in a critique of ordoliberalism, we must first explore how left legal thought in Europe has engaged with ordoliberalism so far.
The received narrative of free-market Hong Kong was indeed too good to be true, but it remains a necessary fantasy for advocates of neoliberal transformation.
There’s a widely accepted story that the US’s reliance on markets and paid work over direct government provision in supporting families derives from the country’s unique, longstanding economic ideology supporting free enterprise. A close attention to the historical record shows that this story is a myth.
The surge in US economic inequality since the 1970s was powerfully driven by politics and policy. Firms and individuals actively shaped market governance – from corporate governance to labor regulation – in their own favor and then took advantage of that favorable governance in the marketplace. This “inequality snowball” was particularly pronounced in the United States because firms were more aggressive in their business and political strategies and because the political system delivered more winner-take-all policy outcomes than the more consensual political systems of continental Europe and Japan.
Like all modern organizations, modern states are subject to a “data imperative”: a mandate to mine data and to decide what to manage based on what can be measured. In service of data-hungry machine learning techniques, the state (and its contractors) find themselves compelled not only to seek and demand new kinds of data, but also to mine it in a somewhat agnostic fashion to find the relations that stick. It is no longer necessary to flatten society to make it legible (as high modernism required); instead, ubiquitous data capture means that categories emerge inductively from regularities observed in the data.
Despite the disproportionate impact of climate change on vulnerable populations who have been largely ignored due to their racialization, legal scholarship on climate displacement has often adopted a doctrinal approach that fails to analyze the underlying systemic causes of the climate crisis and its relationship to race and racism.
The reinterpretation of antitrust in terms of “consumer welfare” has not resulted in bountiful consumer welfare, but oligarchy unleashed. But, as I wrote in the Journal of Law and Political Economy, antitrust can be a force for fairness and democracy again. A reimagined antitrust law that restricts consolidation of business assets and permits certain forms of coordination among small actors would limit domination and disperse power.
American negotiation theory started as, and for a long time remained, an engagement with labor and class relations. When early scholars developed their theories of negotiation in the context of workplace conflict, they did so in a moment when many workers were familiar enough with Marxist theories of class struggle to readily believe that some differences—for example, between management and labor—were not reconcilable, no matter how one performed in a negotiation. In this context, negotiation theorists aimed to open a space for potentially harmonious group relationships by introducing the concept of “integration”— the idea that labor and management could reorient their interests by creating new common values together.
It is an exercise in futility to accept the legitimacy of colonial constructs such as race, gender, property, and state sovereignty, and then work to equalize relations defined in these terms. These constructs are, themselves, the “master’s tools,” designed to perpetuate relations of domination and subordination. Moreover, a more equitable division of the spoils of conquest, should that be possible, wouldn’t change the underlying power dynamics. This is because settler sovereignty has been defined precisely to prevent those under the state’s claimed jurisdiction from exercising self-determination, the right of all peoples to “freely determine their political status and freely pursue their economic, social and cultural development.”
The Editors in Chief of JLPE kick off our series celebrating its first issue!