While capitalism is typically said to commodify everything, much of what makes up our world isn’t commodified at all. It instead appears as a free gift: a social form that describes the condition of usefulness lacking value. The idea of the free gift can give us a deeper understanding of the environmental problems that plague contemporary capitalism. It can also help us better understand capitalism itself.
Antitrust may promise to tame corporate power, but it leaves untouched the deeper logic of capitalism that compels production for profit’s sake. In this sense, antitrust is not voluntarist enough, choosing to fight capital with one hand tied behind its back. At the same time, however, antitrust places too much faith in law as a source of normative authority and in an administrative state whose legitimacy is evaporating before our eyes.
In the current moment, it is not a crisis of capitalism that challenges democracy, but its triumph. For this reason, our political-economic situation is quite different from that of Weimar Germany, whatever continuities and similarities may exist.
Some on the left dismiss anti-monopolism as a distraction from the core conflict between labor and capital. But this view misunderstands both history and strategy: antitrust has long been a tool for democratizing economic power, and it remains essential for resisting attempts to control economic production wherever and whenever it occurs.
Law and Economics scholars argue that if income redistribution is to happen at all, it should occur exclusively through the tax system, rather than through supposedly less efficient methods, such as the minimum wage, collective bargaining, or housing regulation. Yet even by their own lights, these arguments fail: in many cases, predistributive policies are actually more efficient than the tax and transfer system. More fundamentally, to address economic inequality, we must move beyond narrow issues of distribution and transform the mode of production itself.
In the ruins of the administrative state after Trump, many on the left see an opportunity to design a New Deal-type reconstruction agenda. But building state capacity requires a government that is seen as legitimate, and it is precisely the erosion of legitimacy in the eyes of the public that has enabled Trump to carry out his deconstructive agenda.
Antitrust law is important not only for its potential in reforming our current economic system, but also analytically, because of law’s irreducible role in structuring economic competition and coordination. Contra any picture of markets operating via quasi-automatic mechanisms, the organization and operations of any market are as much a product of contingent rules as any law of nature.
How should we understand the relationship between Marxism and antitrust? To what extent do these traditions involve conflicting methods and assumptions? And, despite their differences, can we imagine a constructive give and take, where the two intellectual programs nonetheless align into a useful division of labor?
The Trump administration is simultaneously dismantling, weaponizing, and centralizing state capacities in order to enact a reactionary vision of administration — one which seeks to roll back efforts by prior generations to equalize economic and social relations. In contrast to this vision, progressives ought to aspire to a regulatory state whose purpose is to prevent domination. This alternative vision can guide us in deciding which forms of administrative power we should build and which we should actively work to restrain.
Legal scholars must grapple with the emergence of a new state capitalism — defined by expanded modalities of statist intervention, growing state-held capital, and intensifying geoeconomic rivalries.
Given the anti-democratic corporate form of all private and many public universities, appeals to “shared governance” cannot succeed in wresting power from the academy’s autocrats. Instead, American universities must be reincorporated in accordance with the principles of democratic republicanism.
A collection of our most illuminating posts on administrative law and democratic governance, featuring Sabeel Rahman, Karen Tani, Sophia Z. Lee, Kate Jackson, Daniel Walters, Blake Emerson, and more.
The current constitutional crisis offers a new picture of what legitimate government looks like: rule by the boss, where professional civil servants become at-will employees, the threat of prosecution is just another bargaining chip, and statutory, constitutional, and ethical restraints are treated as tokens in a sucker’s game.
What use is the rule of law in assessing the Trump administration’s assertions of executive power? To answer this question, we need to clarify our understanding of its value — and more specifically, how this value relates to democracy and constitutionalism.
In the embers of the Supreme Court’s disastrous Grants Pass decision, a new form of necessity doctrine offers a ray of light. If private property owners’ exclusionary rights are meaningfully threatened, might the political will for ending homelessness and food insecurity finally emerge?
