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Open Access Publications from the University of California


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

This article examines the relationship among climate change, racial subordination, and the capitalist world economy through the framework of racial capitalism. It argues that climate change is a logical consequence of an economic system based on extraction, accumulation through dispossession, and white supremacy. Climate change imposes disproportionate burdens on racialized communities all over the world, many of whom will be expelled from their homes in record numbers as the climate emergency intensifies. International law has been deeply complicit in the project of racial capitalism and is now being deployed to address climate change-induced displacement. This article evaluates the emerging legal and policy responses to climate displacement, and proposes alternative approaches based on the perspectives of states and peoples facing imminent displacement, including their demand for self-determination. Climate change is not an isolated crisis, but a symptom of an economic (dis)order that jeopardizes the future of life on this planet. Through a race-conscious analysis of climate change grounded in political economy, this article seeks to engage scholars in a variety of disciplines in order to develop more robust critiques of the laws, institutions, and ideologies that maintain racial capitalism and pose an existential threat to humanity.

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.