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Open Access Publications from the University of California

Volume 1, Issue 1, 2020


Law and Political Economy in a Time of Accelerating Crises

In this time of accelerating crises nationally and worldwide, conventional understandings of the relationships among state, market, and society and their regulation through law are inadequate. In this Editors’ Introduction to Volume 1, Issue 1 of the Journal of Law and Political Economy, we reflect on our current historical moment, identify genealogies of the Law and Political Economy (LPE) project, articulate some of the intellectual foundations of the work, and finally discuss the journal’s institutional history and context.

Privileging Consolidation and Proscribing Cooperation: The Perversity of Contemporary Antitrust Law

Democratic and Republican administrations and the Supreme Court, in implementing antitrust law as “a consumer welfare prescription” over the past 40 years, reached a consensus on two important issues. First, antitrust enforcers and courts have presumed that corporate mergers generally advance, or at least do not threaten, consumer welfare. Second, enforcers and courts have treated horizontal collusion, among both big and small actors, as the principal evil for antitrust enforcers to root out. This deference to the consolidation of business property and hostility to horizontal agreements have concentrated power in the economy among a small elite.

For antitrust law to redistribute power downward, a radical philosophical change is necessary. First, antitrust law should tightly restrict the consolidation of corporate property. Second, policymakers should recognize that collusion among powerless actors can represent socially desirable cooperation. Reconstructing antitrust law in this manner would transfer power in markets away from corporate executives and financial interests to workers, professionals, and small firms.

Different Paths

A critical perspective on law and political economy requires an appreciation not only of how race, gender, sexuality, class, national origin, immigrant status, and other aspects of our identities intersect and interact, but also why they do so. Focusing on the United States as a settler colonial state, this essay suggests that the primary markers of identity used to oppress people are themselves the master’s tools, i.e., constructs of the colonial project. Building on the late Stokely Carmichael’s distinction between the paths of the exploited and the colonized, it argues that remediating status-based injustices will require us to go beyond a redistribution of social goods and resources, or even institutional restructuring, to challenge the paradigm that works to define and contain us—the one that propelled Western colonialism and now permeates not only the United States but legal, economic, and political institutions around the world.

Climate Change, Race, and Migration

The study of race and capitalism has a long and venerable history, including the works of W.E.B. Dubois, Stuart Hall, Eric Williams, Angela Davis, and Cedric Robinson.  Despite the dominance in recent decades of liberal multicultural approaches to racial justice, this earlier scholarship has been re-invigorated by scholars who reject the severance of race from political economy, the construction of racism as merely bias or intolerance, and the call for greater diversity within existing capitalist class relations in lieu of fundamental social transformation.

Inspired by the growing scholarly interest in racial capitalism, this article examines the close but under-theorized relationship between climate change, racial subordination, and the capitalist world system. The article then applies these insights to the contemporary debates over the governance of climate change-induced displacement.

Climate change law and policy has often been regarded as an elitist enterprise far beyond the competence of ordinary people and inaccessible to those who are not scientists, economists, or environmental law experts. Indeed, the portrayal of climate change as an issue of concern only to the affluent has fueled right-wing populism and stoked climate denial. It has also obscured the dire impacts that climate change is currently having on poor and marginalized communities all over the world. Climate change threatens to displace as many as one billion people by 2050 (Kamal 2017), producing an unprecedented humanitarian disaster. Averting climate catastrophe requires the engagement of scholars and activists with wide-ranging experience and expertise in addition to climate law and science experts.

This article argues that a race-conscious analysis of climate change grounded in political economy can help foster collaboration among legal scholars, policy-makers, and social justice activists concerned about racial justice, poverty, immigration, peace, economic justice, indigenous rights, mass incarceration, deregulation of industry, privatization of government services, and the ongoing economic, political, and military subordination of the states and peoples of the Global South. Climate change and climate displacement touch upon all of these areas, and racial capitalism provides valuable insights on some of the underlying systemic causes of these injustices.

Learning Like a State: Statecraft in the Digital Age

What does it mean to sense, see, and act like a state in the digital age? We examine the changing phenomenology, governance, and capacity of the state in the era of big data and machine learning. Our argument is threefold. First, what we call the dataist state may be less accountable than its predecessor, despite its promise of enhanced transparency and accessibility. Second, a rapid expansion of the data collection mandate is fueling a transformation in political rationality, in which data affordances increasingly drive policy strategies. Third, the turn to dataist statecraft facilitates a corporate reconstruction of the state. On the one hand, digital firms attempt to access and capitalize on data “minted” by the state. On the other hand, firms compete with the state in an effort to reinvent traditional public functions. Finally, we explore what it would mean for this dataist state to “see like a citizen” instead.

A Labor Theory of Negotiation: From Integration to Value Creation

This article argues that Mary Parker Follett developed a socialist theory of negotiation in response to early twentieth century labor struggle (at least if socialism means the democratization of economic life). This defining feature of Follett’s work has been forgotten amongst negotiation scholars; indeed, it appears never to have been acknowledged, even as Follett remains an icon in the contemporary field. Prominent negotiation scholars have instead interpreted Follett’s idea of “integration” as an early effort to articulate what is in fact the very different contemporary concept of “value creation.” In so doing, they have reconceptualized the field with different understandings of labor, capitalism, and the common good than those Follett relied upon. Through a close reading of how prominent negotiation scholars have interpreted the meaning of integration—in the early, mid, and late twentieth century—the article broadly illustrates how political-economic transformations have influenced the ends and best practices of negotiation theory. It concludes with an approach to negotiation theory engaged with political-economic struggles of today.

A Message from the Book Review Editor

A message from the book review editor of the Journal of Law and Political Economy.

A Message from the Managing Editor

A message from the Managing Editor of the Journal of Law and Political Economy.