James Tierney, Reconsidering Securities Industry Bars: Exclusion from Capital Markets' Labor Markets
Securities law enforcement relies heavily on an industry exclusion sanction: suspensions or bars from working in their industry. These sanctions are interlocking, and can have cascading collateral consequences across industries and licensing authorities. Despite a robust recent literature assessing securities enforcement sanctions and administrative proceedings, however, securities law lacks a holistic theory for industry exclusion sanctions. Existing explanations provide justifications for deference to industry self-regulators, like the stock exchanges and FINRA, but offer neither descriptive nor normative accounts for what securities law is trying to accomplish with industry bars. This paper first offers a novel orthodox economic account for these bars, then shows why that account is incomplete without accounting for power and distribution of wealth in the design of the securities laws. To be sure, exclusion sanctions, in deterring certain conduct and incapacitating violators, can be justified as reducing agency costs in the broker-investor relationship. But such an orthodox economic account overlooks the role that existing distributions of wealth and power played in shaping the development of securities law-and how securities law implements and reinforces those distributions though hidden means like exclusion sanctions. Nor does the orthodox account explain why securities law uses this sanction in the broker-dealer context but not others. Drawing from law and political economy, this paper argues that industry exclusion's function is as the tool by which securities law implements the "investor protection" mandate. That mandate not only pursues allocative efficiency, but also reflects securities law's deepest distributive commitments making investors better off at brokers' expense. Securities law empowers government to take this action, while also franchises to industry an anticompetitive device-a concerted refusal to deal-that would otherwise be per se illegal, all in service of this common end. Its purpose is to designate certain securities law rules as giving rise to a property-rule-like entitlement to capital owners not to have their profits from investing involuntarily transferred away from them by market intermediaries. That is a function of the particular social and historical context in which the securities laws arose; despite decades of failed attempts, financial market reform happened only after a critical mass of modestly wealthy Americans, who had newly began investing in the stock market, found their savings defrauded or manipulated away from them. Industry exclusion is the tool that securities law chooses to decide that a person's misconduct creates too much of a risk of future involuntary redistribution away from capital. This political-economy approach to enforcement sanctions offers a first step toward addressing a modern challenge for securities law scholarship: identifying the hidden ways that doctrine and practice in capital markets regulation reflect and reinforce distributions of power and wealth and society.
Mason Marks, Biosupremacy: Data, Antitrust, and Monopolistic Power Over Human Behavior
For decades, technology companies have avoided antitrust enforcement and grown so powerful that their influence over human affairs equals that of many governments. Their power stems largely from data collected by devices that people welcome into their homes, workplaces, schools, and public spaces. When paired with artificial intelligence, this vast surveillance network profiles people to short them into increasingly specific categories. However, this "sensing net" was not implemented solely to observe and analyze human behavior; it was designed to control it. Accordingly, it is paired with a matching network of influence, the "control net," that leverages intelligence from the sensing net to manipulate people's behavior, nudging them through personalized newsfeeds, targeted advertising, dark patterns, and other forms of coercive choice architecture. Dual networks of sensing and control form a global digital panopticon, a modern analog of Bentham's eighteenth-century building designed for total surveillance. It monitors billions of students, employees, patients, prisoners, and members of the public. Moreover, it enables a pernicious type of influence that Foucault defined as biopower: the ability to measure and influence populations to shift social norms. This Article argues that a handful of companies are vying for a dominant share of biopower to achieve biosupremacy, monopolistic power over humanity's future. It analyzes how firms concentrate biopower through conglomerate mergers that add software and devices to their sensing and control networks. Acquiring sensors in new markets enables cross-market data flows that send information back to the acquiring firm across sectoral boundaries. Conglomerate mergers also expand the control net, establishing beachheads from which platforms exert biopower to assault social norms. As a branch of law tasked with restraining private power, antitrust should adopt biopower as a lens for examining the behavior of economic actors. Regulators should expand their conception of consumer welfare to account for the costs imposed by panoptic surveillance and the impact of coercive choice architecture on product quality. They should revive conglomerate merger control, abandoned in the 1970s, and update it for the Digital Age. Specifically, they should halt mergers that concentrate biopower, prohibit the use of dark patterns, and mandate data siloes to block cross-market data flows. To prevent platforms from locking consumers into panoptic walled gardens, regulators should force tech companies to implement data portability and platform interoperability.
Taleed El-Sabawi, Defund and Replace the Police (co-authored with Jennifer Carroll, Elon University, Department of Sociology and Anthropology)
[excerpt from the introduction] Calls to defund the police are not simply reactionary cries for justice for the lives lost; they are calls to dismantle institutions that perpetuate racial violence. But, dismantling an institution is tricky. Not only because of the political machinations that will fight to protect the interests of the members of that institution, but also because doing away with an institution creates a void that will likely be filled by a new, similar institution, potentially placing the same wolf into the clothing of a different sheep. In this article, we provide a contemporary policy example in which city policy-makers responded to a horrific incident of excessive law enforcement use of force that resulted in the death of a Black man who had been struggling with mental illness, substance use, and houselessness. We demonstrate how the enacted policy responses, though perhaps well-meaning, served only to reinforce the authority of the police department. We explain the barriers to reform that were faced by local advocacy groups in their efforts to create a new institution that would respond to crisis in the community. Based on this case study, we suggest factors that advocates should consider incorporating into their thinking and planning about what type of institution might take over some or all of the responsibilities of law enforcement. Finally, we provide a sample sign-on letter and model legislation, creating a non-law enforcement administered and staffed emergency response team equipped to handle mental health, substance use (collectively, "behavioral health") and housing crises. It is based, in part, on a decades-old model employed in Eugene, Oregon, called Crisis Assistance Helping Out On the Streets, or CAHOOTS. Importantly, our proposal also includes legislative safeguards to help prevent law enforcement and healthcare provider co-option and to increase the likelihood that the resulting institution will be meaningfully informed by the lived experiences of the persons that it serves.
Marissa Jackson Sow, Whiteness as Contract
The year 2020 forced scholars, policymakers, and activists alike to grapple with the impact of "twin pandemics"-the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities-upon American society. While rights-based prisms of analysis have inspired global moral outrage that has led to concrete social and policy changes, racist resistance-and persistence-continues to intensify. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between the human and civil rights to which Black people are entitled and their living conditions has become readily apparent. Less visible human rights abuses, too, camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as social and financial inequalities have become ever starker. These abuses are not effectively reached by domestic civil rights laws, international human rights laws, or international criminal laws, leaving Black and Indigenous people with rights, but no remedies, as they are forced to navigate a degraded existence suspended somewhere citizen and foreigner, and more importantly, between life and death. In analyzing the persistence, resilience, and agility of white supremacy in the United States, the Article proposes a departure from reliance upon the extant antidiscrimination legal frameworks in the United States. The Article offers up a theory as whiteness as contract, and in so doing, provides scholars, activists, and movement lawyers with a new prism of analysis for the structural and physical violence that those raced as Black endure with the blessing, and even the express facilitation, of the state. Despite federal law establishing formal racial equality with respect to citizenship, and with citizenship, the rights to contract and to property, an invisible common law sets forth that Black people are not in privity with the State and lack contractual capacity with the white body politic or its individual members. Under the terms of this contract for whiteness for which those raced as white have bargained, Black people lack capacity to negotiate, occupy, or exercise a reliable authority over property. Moreover, whenever Black people are found to be in trespass on white property, they have no expectation of physical integrity, liberty, or life-or of remedies for breaches thereof. An end to anti-Black state violence requires the revocation of the terms of whiteness and the institution of a new social contract in which Black people are accorded full political personhood, and full citizenship, complete with full contracting capacity and authority and full protection of their contracts and proprietorship. Scholars and advocates committed to ending structural and physical anti-Black brutality may use the new analytical prism proposed in this Article to explore new advocacy strategies, and to consider meaningful racial justice remedies.
Desirée LeClercq, Administrating Emergency
The multidimensional demands of the pandemic have required quick and decisive action by executive agencies to "flatten the curve" of transmission and to revive the national economy. Those agencies have, in turn, issued significant rules and guidelines impacting employment and immigration policies. Their activities thus revive and reinvigorate the scholarly debate surrounding the standards of judicial review of executive agencies. Although administrative law scholars have advanced various theories concerning the efficacy and equity of judicial review, few have attempted to reconcile those theories with the nuances of national emergency. Adrian Vermeule and Eric Posner attempt to fill this void. Through an institutional formalist lens, the authors argue that statutory text, jurisprudence, and institutional practice of administrative law contain "adjustable parameters" that ensure that courts will defer to executive agencies during emergencies. This Article argues that their theory fails to adequately explain the behavior of judges during the pandemic. First, this Article situates the pandemic within the administrative law scholarship, in particular within the debate between institutional formalists and behavioral realists. Second, it explains how judges have reviewed various pandemic-related activities of executive agencies. Contrary to institutional formalist theory, I demonstrate significant variance between judicial decisions, including across cases that involve the same executive activities, fact patterns, and standards of review. Third, it explains why behavioral realist methodologies are better equipped to investigate varied judicial behavior. Fourth, this Article agrees with Vermeule and Posner that administrative law affords judges a number of parameters to adjust the standards of their review. It concludes, however, that those parameters just as easily allow judges to invalidate executive actions. Judges, consequently, play far greater a role in administrating emergencies than previously considered in the literature.
Katharine Jackson, All the Sovereign's Agents: Administration, the Constitution, and Representative Democracy
This manuscript defends administration against two major lines of attack: That they are undemocratic lawmakers and that they violate liberal understandings of the rule of law and rights. It does so by incorporating relatively new literature within political theory on (1) sovereignty skepticism (there is no "will of the people" reflected through congressional lawmaking); (2) rights constructivism (rights aren't natural but co-original with democratic practice) (Habermas); and (3) representation (democracy is not about transcribing the will of the people through the voting process, but about making citizens equal players in the game of democracy). A condensed form of the argument appears on the LPE blog.
David Simson, Hope Dies Last: The Progressive Potential and Regressive Reality of the Antibalkanization Approach to Racial Equality
This Paper argues that the currently governing "antibalkanization" approach to equal protection, which narrowly restricts race-conscious remedies because they are too likely to create counterproductive racial hostility and resentment, helps perpetuate racial hierarchy through constitutional law. This is so even though its proponents demonstrate good intentions in taking racial inequality seriously and a willingness to learn about the realities of race over time. This willingness has led antibalkanization Justices to uphold, and preserve important constitutional space for, race-conscious programs later in their careers where their prior jurisprudence did not require it. But it has stopped short of leading to the realization that the approach's basic logic misunderstands the social psychological dynamics of racial resentment and the relationship between resentment and racial equality progress. Under this logic, racial resentment among white Americans is the key obstacle to equality progress and results primarily from overzealous and excessive government uses of race-i.e. when the government is a "racial hostility perpetrator." By contrast, the approach assumes that white Americans will accept effective racial equality interventions if they are pursued in a more subdued way. This "perpetrator" approach ignores the critical structural dimensions of white racial resentment. As social science findings demonstrate, such resentment is driven by threats to the dominant position of whites in the American racial hierarchy, whether those threats originate with the government or impersonal forces-racial resentment is inextricably tied to racial equality progress. Thus, antibalkanization's basic assumptions that racial equality doctrine ought to prioritize avoiding racial resentment and constrain interventions most likely to lead to it are fatally flawed and lead to regressive doctrinal outcomes-in particular, excessive restrictions on race-conscious programs with remedial purposes. At a minimum, fully unlocking the progressive potential of a genuine willingness to learn would lead to greater doctrinal leeway for such programs.
Gali Racabi, Abolish the Employer Prerogative
Workplace power in the United States is disproportionately skewed toward management's interests. As work law scholars have long recognized, this tilt results from the structural nature of workplace power origins. A keystone of this legal structure is the employer prerogative, which makes management the default sovereign in the workplace. This default rule entrenches the prevailing workplace power structure and hinders attempts to redistribute power to workers or strengthen the role of the state in the workplace. This Essay describes the default rule of employer prerogative, analyzes its effects on contemporary workplace power and the attempts to redistribute it, and suggests progressive alternatives to this rule.
Mekonnen Ayano, Tenants Without Rights: Situating the Experiences of New Immigrants in the U.S. Low Income Housing Market
Recently arrived immigrants to the United States rarely rent a home with exclusive possession in the formal market because they lack a steady source of income and credit history. Instead, they rely on family and social networks to rent shared beds, basements, attics, garages, and illegally converted units that violate housing codes and regulations. Their situation highlights the disconnect between tenant rights law and the deleterious conditions that exist under informal residential tenancies. Tenant rights law confers a variety of rights and remedies on a residential tenant if the renter has exclusive possession of the premises. If the renter lacks exclusive possession, courts typically characterize the occupancy as a license, treating the renter as a transient occupant with contractual rights and remedies. Situating the experiences of new immigrants within the low-income housing affordability crisis, this paper proposes that courts should steer away from considering tenant status and its associated rights and remedies as a function of exclusive control of the premises. Instead, they should enforce informal tenants' legitimate interests by imposing duties on those who rent out substandard units, and award damages when the rent paid is disproportionately high relative to the condition of the premises.
Evelyn Rangel-Medina, Citizenism: Racialized Discrimination by Design
This article introduces the concept of citizenism into the legal canon to explain a seemingly invisible yet harmonized race-making process that facilitates the systemic racialized subordination of non-citizens and citizens of color in the United States. By choosing to disregard this critical element of the race-making process in a country that is simultaneously becoming more racially diverse and racially isolated we continue to engage in a disingenuous conversation and policy making process that perpetuates systemic racism and racial subordination. This article is particularly salient as the rise of "white nationalism" (a rebranded strand of white supremacy) threatens the promise of American democracy. Citizenist ideology continues to expand into our law-making process and political discourse with the outcome of operationalizing race and subordinating people of color regardless of their immigration status. Most pointedly, I demonstrate in this article that citizenism is illegal because it is a form of racialized discrimination, targeting people of color, particularly Latinx, Black, Asian, and Arab citizens. Citizenism explains how the current and expanding iteration of racial subordination as the white citizen population becomes the minority and as people of color take the place of the majority of citizens in the U.S. population. Furthermore, citizenism describes a legalized system of discrimination that is prevalent in immigration law and in intersecting legal systems (i.e., criminal justice, public education, housing, and civil rights, among others) in the United States. This article presents how this legalized system of discrimination operates as an arm of racial subordination for citizens of color in the United States. This article further disrupts the conflation of white as the only legitimate group of U.S. Citizens, a premise that keeps citizens of color from accessing their full legal rights. The citizenist strategy has been keenly successful in backtracking some of the major wins of the Civil Rights Movement, such as affirmative action, welfare reform, immigration reform, and economic equality. Racial subordination is a constantly evolving cycle that shifts in its presentation and function but not in reproducing limiting life outcomes for people who are racialized. It is well documented by immigration legal scholars and practitioners that America's immigration system has operated historically and contemporarily in tandem with race to limit the entry of people of color to the United States, as well as to limit the pathways to legal status and naturalized citizenship. But what has remained largely unexplored in the legal cannon is how this system is designed to operationalize as a race-making process for citizens of color. Notably, immigration scholars have identified racial discrimination in immigration law but there is a gap in naming the frame which constructs this racial paradigm that this article will begin to fill in its contours. This paper argues that the race-making process under citizenism will continue to become more pronounced and extend its discriminatory grip in the United States. Unless we are intentional about eradicating citizenist ideology from this country's political consciousness and uprooting it from our legal system. As this country evolves into a racially and ethnically diverse nation-state that has yet to grapple with an entrenched, divisive and violent racist history that was largely facilitated by our legal system, by identifying, addressing and changing our citizenist law-making paradigm then we can more clearly walk a path toward racial equality. Finally, this paper seeks to make citizenism visible by outlining a plainly discriminatory system based on racialized citizenship that treats and presents citizens of color as "dangerous" foreigners.
Maryam Jamshidi, The Political Economy of Foreign Sovereign Immunity
Increasingly, legal scholars are examining the ways in which law is shaped by and influences existing political and economic structures. By and large, this critical scholarship has focused either on legal areas typically associated with economic systems or issues, such as corporate and trust law, or on the constitutional framework necessary to capitalism's operation. This Article expands this scholarship by exploring the political economy of a legal regime whose relationship to capitalism has been woefully underexplored: the law of foreign sovereign immunity as embodied in the Foreign Sovereign Immunities Act ("FSIA"). As this Article demonstrates, appreciating the political economy of the FSIA is critical to understanding the nature of foreign sovereign immunity and the exceptions to it. As this story reveals, the framework for private litigation against foreign sovereigns in the United States is not, as some might expect, primarily about protecting the human or civil rights of plaintiffs. Instead, it is and long has been a creature of capitalist interests and prerogatives.
Aman Banerji, Examining Transnational Finance: Making the Case for Global Ethnography
The global form of transnational financialized value chains has posed fundamental challenges to traditional political economy analysis- one that remains economistic and nation-state centric. In addition to their transnational character- global finance, particularly private equity and finance capital, is characterized today by vast and seemingly inexplicable fluctuations of value. Drawing on two cases of WeWork and SoftBank-Oyo Rooms, in this paper, I attempt to draw together a Marxist political economy analysis of global finance with a 'financialization of daily life' literature focused on the cultural and affective dimensions of finance. The paper's first two sections outline the contributions made by each of these literatures to our analysis of global financialization. The third section attempts to bring together these literatures by drawing on Michael Burawoy's conception of a 'global ethnography.' Critical to a potent methodological structure, I argue, is examining both the transnational political economy of a global value chain and ethnographically examining the 'local' sites connected through it. Such an analytical structure privileges neither the global nor the local, nor the material or discursive, facilitating a look at today's shape-shifting transnational hyper accumulation. Through the paper, I attempt to demonstrate the potential for this methodological approach by showing its application in the two case study vignettes.