There is, at present, a conceptual mismatch between the strategies of accumulation that are dominant in the digital economy and the basic assumptions that underlie the legal regimes tasked with regulating accumulation. To begin to address this discrepancy, legal actors in these regimes need a better understanding of how companies translate social data into profits and power.
Private equity firms, cloaked under protective securities laws, have increasingly acquired companies that provide goods and services in U.S. jails and prisons. But it is the legal construction of prisoners’ rights that has enabled this market to take the particular form that it has, turning community ties into steady payment streams. In particular, Eighth Amendment jurisprudence, which has affirmed the constitutionality of pay-to-stay fees, has transformed the prohibition against cruel and unusual punishment into a (subordinating) right to credit.
Multinational platform companies, including Uber, iFood, Rappi, and 99, are currently pushing to export the United States’ most exploitative new labor laws to Brazil. Lawmakers should reject these attempts. As empirical evidence from the U.S. context shows, adopting a new “intermediate” worker category would be disastrous for low-income workers, and as Courts around the world have found, platform companies exert high levels of control over their workers and thus should be subject to standard labor and employment regulations.
With bipartisan calls to break up big tech, it is worth pausing to ask whether the proposed remedy matches the diagnosis of the problem. Antitrust breakups work best when there’s a clear conflict between public and company interests. Yet with some of the most pressing problems – such as the spread of disinformation – company and public interests plausibly converge. An alternative approach would be to keep tech companies intact but integrate users and workers more directly into their governance systems.
The NLRB’s recent Cemex decision should discourage employers from resisting unionization and therefore make it easier for workers to gain bargaining rights. But how should we understand the basis of this decision? Brishen Rogers considers the case from three theoretical perspectives: the liberal legalist, the progressive functionalist, and the low-key Marxist.
With tenant organizing on the rise across the United States, legal scholars have been drawn to the idea that tenant unions, backed by the right legislative framework, could serve a function akin to labor unions. But labor and tenancy serve different functions for capitalism. Housing is a commodity that tenants consume rather than produce, so tenants would be better served by universal protections, such as price controls and possessory rights, than by the right to good faith negotiation.
Neo-Brandeisian and other legal scholars generally associate Brandeis with America’s own anti-monopoly traditions. Yet Brandeis himself drew inspiration from developments unfolding across the Atlantic, and in contrast to Postwar America, where many of his institutional insights were eventually abandoned, the European competition regime has gradually gravitated toward an increasingly Brandeisian approach.
Since the 1990s, mainstream economists have used past weather data to forecast the future costs of climate change. This mode of econometric prediction ignores the alarming tipping points and pervasive uncertainty that characterize our warming world.
Credit rating agencies like Moody’s have amassed vast datasets about scale and distribution of climate risk. The proprietary “expertise” derived from this data increasingly guides how both governments and financial institutions respond to the crisis.
The net zero paradigm disaggregates global emissions and allows each company to design an individualized plan. This atomized approach is not just amenable to manipulation – it frustrates the kind of collective action the crisis demands.
The IRA promises to pump billions of dollars into clean energy infrastructure, primarily though tax equity financing. This approach, despite its merits, all but guarantees that our clean energy future will be dominated by incumbent private actors, namely large financial institutions and private developers, who will capture the benefits of abundant low-cost renewable electricity.
The very idea of “offsetting” emissions requires the legal creation – and exploitation – of new sacrifice zones. Predictably, this approach has been a disaster for the environment. Less noticed, however, is the extent to which offsetting has warped the entire aim of environmental law.
How can a Law and Political Economy approach guide the power of taxation toward democracy, justice, and a livable planet? As a start, it can help us understand that tax policy involves not only the power to redistribute market earnings, but also the power to transform market governance.
Silicon Valley Bank failed, in part, because it parked its cash in long-term U.S. government bonds. But why were Treasuries so attractive in the first place? One reason is that regulators assign the lowest possible risk-weight to U.S. government bonds. This favorable weighting does not, however, reflect a neutral assessment of actuarial risk. Rather, it reflects a policy choice to encourage banks to hold government debt. More broadly, risk-weights have long deviated from assessments of actuarial risks to encourage (or discourage) lending to particular sectors.
With the spring submission season nearly in the books, and our Twitter feeds abuzz with placement announcements, the LPE Blog highlights some of the most exciting forthcoming LPE and LPE-adjacent articles. Covering tech, care, labor, criminal justice, religious freedom, money and banking, property, the administrative state, and so much more, this scouting report is not to be missed.
