Inequality, Economic power, and
How do law, public policy, and a changing economy create new forms of private power, structural economic inequality, and systematic forms of exclusion? What would a policy agenda committed to inclusion, provision of public goods, and a modern-day social contract look like? Drawing on history, economics, political theory, and law, my work explores these questions in context of a variety of different policy areas.
In my book, I focus on financial regulation since the 2008 crisis, and the debates over "too-big-to-fail" financial firms. My next book project explores the changing nature of inequality and economic opportunity, and the future of the social contract in this “New Gilded Age” of inequality, private power, and exclusionary populism.
In these various projects, I explore these themes through four approaches.
- First, through a series of papers, I draw on the history of PUBLIC UTILITY concepts to formulate a critique of modern-day private power, and a set of regulatory strategies that can address economic power in contexts like FINANCIAL REGULATION and INTERNET PLATFORMS. This public utility framework complements the revived interest in antitrust law and anti-monopoly concerns, in both the internet and information platform context, and in other concentrated sectors.
- Second, these public utility concepts can also inform our approach to regulating and providing affirmative PUBLIC GOODS, from cases like the water crisis in Flint, Michigan to housing inequality.
- Third, these questions about affirmative public provision and the problem of economic power can inform attempts to reinvent the SOCIAL CONTRACT and the safety net in context of the radically changing nature of 21st-century models of work, firms, and social organization.
- Fourth, each of these approaches represents an attempt to grapple with inequality and exclusion as a product of underlying economic and social STRUCTURES.
- "Constructing Citizenship: Exclusion and Inclusion through the Governance of Basic Necessities". Forthcoming, Columbia Law Review. This paper focuses on a particularly crucial—and often underappreciated—site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. Precisely because of their importance, these goods create a unique kind of vulnerability: actors that can control or condition the provision of and access to these goods and services can in effect construct systematic forms of inequality and exclusion—which play a role in systemic racial and economic inequities. Conversely, equitable and inclusionary governance of these goods and services is critical to dismantling these structural inequalities and promoting a more inclusive and equitable social and economic order.
"Broken Contract: The Rise of the Networked Firm and the Transformation of 21st Century Capitalism,” with Kathy Thelen (MIT). Draft in progress. In this paper, we argue that one of the key transformations in modern-day capitalism lies in the shift from large, vertically-integrated firms, to the "networked" firm. This shift, in both the online context of platform companies like Uber and in the offline context of increasingly "fissured" workplaces, carries profound consequences for the changing social contract. We also argue that the US is uniquely vulnerable to this transformation, due to the configuration of interest group politics and a legal and institutional structure that makes public policy particularly responsive to organized business and financial interests.
"Corporate Power and the Unmaking of American Democracy." The American Prospect - Spring 2018. A review of two new books on law, history, and the rise of the modern corporation.
The New Utilities: Private Power, Social Infrastructure, and the Revival of the Public Utility Concept.
Cardozo Law Review, Vol. 39:5, pp. 101-71 (2018).
From the renewed controversies over financial regulation and the problem of too-big-to-fail (TBTF) financial firms, to the clash over the FCC’s ‘net neutrality’ regulations on internet service providers, and more recent questions about Google, Facebook, and online platforms, we are in the midst of a larger policy and political debate about how to regulate modern-day forms of private power. Encompassing different areas of law and policy, the underlying issue in this debate is the following: how should we conceptualize and regulate new forms of concentrated private power, particularly when these firms control the terms of access to vital services — such as finance, broadband internet, or information — upon which many communities, constituencies, and economic actors depend? Drawing on historical Progressive Era concepts of private power and public utility, as well as current debates in financial regulation and net neutrality, this article provides an overarching framework to answer that question. First, the article argues that what makes firms like TBTF financial giants and internet service providers distinct is that they represent a form of private control over ‘infrastructural’ goods — goods that comprise a backbone for much of modern social and economic activity, upon which many communities and constituencies depend. Second, the article identifies three key elements of a 21st century framework for public utility regulation designed to remedy this problem of private control of infrastructural goods: firewalling; imposing public obligations; and creating public options. Third, the paper, applies these principles to the emergent debates over private power and infrastructure in context of internet platforms helps demonstrate their importance, shedding new light on how to address the myriad of concerns raised by new technology giants like Google, Amazon, or Uber. These public utility concepts offer a portable, trans-substantive legal and policy framework for understanding and contesting private power in a variety of sectors. Fourth, this approach also adds an important missing complement to our current legal frameworks and literatures on the problem of private power in the 21st century, particularly by reorienting business law and economic policy back towards a focus on the problems of power and inequality. Moreover, these concepts help bridge the growing literature diagnosing the legal construction of inequality with the aspiration to develop mechanisms that can undo widespread structural disparities of economic opportunity, welfare, and power.
NB - This paper was previously posted online and circulated in draft form under the title, Private Power, Public Values: Regulating Social Infrastructure in a Changing Economy.
Private Power, Infrastructure, and the Revival of the Public Utility Tradition
Symposium on Public Utility, Yale Journal on Regulation (forthcoming, 2018)
This paper draws on my other work on the public utility concept and modern-day debates over private power and public goods to sketch out a generalized approach to modern-day public utility analysis and regulation. As this paper argues, we can adapt the nineteenth century concepts of public utility to help diagnose modern-day problems of power and domination around the control of necessities, and to develop legal and policy responses that can better assure access and inclusion. These responses can run the spectrum from public provision and public options to regulatory oversight.
Infrastructural Exclusion and the Fight for the City: Power, Democracy, and the Case of America’s Water Crisis
Harvard Civil Rights-Civil Liberties Law Review (forthcoming, 2018)
In 2013, government officials in Flint, Michigan, which had been placed under state-appointed emergency management following a long-standing budget crisis, imposed a variety of cost-cutting measures resulting in a severe erosion of lead-based pipes, and causing one of the worst public health crises in decades. This paper uses our current debates about water equity in Flint and elsewhere in the US as an example of a broader pattern of infrastructural exclusion—the way in which inequality and exclusion is produced through systems of public and private governance that operate to restrict access to foundational, infrastructural goods and services that make human flourishing and membership in the polity possible. First, the paper argues that infrastructural exclusion arises out of a variety of strategies and systems beyond the immediate actions of the water utility or service provider itself (Part I), including bureaucratic exclusion, secession of localities from a larger “public”, and privatization. Second, the paper suggests that the central problem around infrastructure is not just one of access to the good; more fundamentally, it is a problem of power (Part II). By virtue of the critical importance of water (or any other infrastructural good) to users, whoever controls the terms of access to or provision of the good exercises tremendous power over those users and makes them vulnerable to the will of the provider. Third, the paper than sketches some preliminary ideas for what an inclusive approach to governing infrastructure might look like (Part III). Here too the water context is both central for its importance and illustrative of applications to other types of infrastructural, natural resource, or public good contexts.
Constructing and Contesting Structural Inequality
Many forms of economic, social, and political inequality are the product not of individual actors but rather of larger systemic and structural arrangements. How should we conceptualize and then respond to such structural inequalities? This paper highlights three areas of current debate in legal scholarship and public policy: the changing nature of work; urban inequality; and concerns about market structure. Each of these areas of debate provide examples of how law and policy construct structural forms of inequality—and how such inequality can be contested. As this paper suggests, structural inequality is best understood as an aggregate, cumulative product of legal and policy decisions. Such structural inequality requires similarly structural remedies, that go beyond incremental, “meliorist” approaches. Specifically, the paper suggests three strategies for redressing structural inequality: limits on private power, investments in public goods, and oversight and enforcement by administrative agencies.
Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities
Georgetown Journal of Law and Technology (forthcoming, 2018)
The power and influence of dominant tech platforms—Google, Facebook, Amazon in particular—has become a central topic of debate. In this paper, I argue that these firms are best understood as the core infrastructure of our 21st century economy and public sphere. Whether it is Google’s search, Facebook’s newsfeed, or Amazon’s retail and logistics system, these firms are increasingly the backbone upon which economic and social activity take place. Viewing these firms as “infrastructure” helps better diagnose the nature of the problems posed by these internet platforms. It also in turn suggests some novel approaches to legal and policy response. The paper proceeds in three main parts. First, the paper develops this infrastructural diagnosis of the problem with internet platforms. While much of the current debate has revolved around issues like “fake news” and disparities of bargaining power between say Amazon and publishers, the paper suggests that these clashes are actually symptomatic of the deeper problem, that these firms are effectively privately-run infrastructure. This diagnosis in turn helps define more sharply the central legal and policy challenge posed by these firms: if the platforms themselves are effectively governors of much of our informational, economic, and political life; how then should our public policy govern these governors? The paper develops this infrastructural view of platforms by recovering and adapting an old tradition of legal thought and regulatory strategy, stemming from the “public utility tradition.” Second, the paper adapts these public utility concepts to map the precise nature of informational infrastructural power. Specifically, I identify three types of infrastructural power exercised by these internet platforms: transmission power, gatekeeping power, and scoring power. These types of power are more subtle and often hidden from view, and explain how internet and informational platforms can often appear diffuse, decentralized, and thus unproblematic, while at the same time exercising outsized economic power. Third, the paper explores how public utility regulatory theory might be adapted to address these distinctive types of infrastructural power.
Shape of Things to Come: The On-Demand Economy and the Normative Stakes of Regulating 21st-Century Capitalism
European Journal of Risk Regulation (2016)
The “sharing economy” represents a growing challenge to regulatory policy. In this article, I argue that these debates about the sharing economy are better understood as a broader normative and policy problem of updating our regulatory tools for the new dynamics of 21st century capitalism. The underlying issue is less about “sharing” and more about the shift to an “on-demand” economy driven by deeper structural changes in business organization, finance, and technology. I argue that we should analyze these changes through the normative lens of economic power: what is especially troubling about the on-demand economy is the way in which it outstrips the modes of accountability and countervailing power enabled by 20th century labor, safety net, and economic regulations. The article then suggests key frontiers for regulatory innovation, in particular: (1) expanding regulatory oversight of concentrated market and economic power among on-demand platforms; (2) expanding the relative power of workers to counteract the concentrated power of platforms in the on-demand economy (for example by expanding safety net protections and the ability to organize collectively); and (3) by reinventing systems for collective urban planning to account for the ripple effects of an on-demand economy. All three of these focus areas for regulation would entail a variety of specific interventions, but share a common premise of rebalancing economic power in this new economic order. Done right, these shifts would encourage more than an increase in welfare or efficiency, and instead offer the foundation for a new 21st century social contract that realizes genuine economic freedom and independence from domination of various kinds.
Democracy and Productivity: The Glass-Steagall Act and the Shifting Discourse of Financial Regulation.
Journal of Policy History 24:4 (Fall 2012), pp. 612-43 (online here)
In the fall of 2008, the United States experienced a sudden financial crisis that plunged the financial sector into disarray, provoked the worst economic downturn since the Great Depression, and gave rise to an ongoing series of highly contentious debates over economic regulation. Two years later, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, one of the largest overhauls of financial regulation in history. Throughout this debate, much of the discourse of financial reform revolved around concepts such as consumer protection, the problem of the “systemic risk” posed by the failure of financial institutions that could have vast negative spillover effects, and the clash between proponents and critics of expanded federal regulatory oversight. But despite deep-seated public anger against financial firms and accusations of abusive practices of securitization and subprime mortgage lending, the public discourse of reform politics exhibited little evidence of more aggressive arguments against the concentrated economic and political power of big finance—arguments that had historically animated antitrust and financial reformers during the late nineteenth and early twentieth centuries.2 This current era of ongoing debate over the role of the state in regulating the financial sector suggests an opportune moment to reexamine the language and arguments of an earlier era of financial regulatory reform: the debate around the Glass-Steagall Act of 1933. …
The reform discourse in Congress surrounding Glass-Steagall parallels many of the debates in our current historical moment. Then, as now, policy- makers struggled to conceptualize the precise nature of the economic challenge and how reforms ought to respond. Then, as now, the dominant narrative was primarily one where reforms were targeted toward promoting economic productivity and stability. Yet at the same time, there was a strong undercurrent of a more aggressive and moralized critique of financial greed and excessive power. This historical debate around Glass-Steagall from 1931 to 1933 is especially interesting because it captures an important shift in discourses of reform, from earlier Progressive Era reform discourses to the kinds of language that would mark the New Deal and postwar eras—a shift that would ultimately have profound consequences for more recent debates on financial regulation.
On regulating the new technology platforms and their distinct threats of economic power.
Up Against Big Tech. The American Prospect, February 5, 2018 (online here)
The old challenges of concentrated economic and political power now confront us in new forms. A review of three new books on technology, private power, and rent-seeking.
Regulating Informational Infrastructure. Talk Data & Society, December 2017 (online here).
The informational, economic, and political influence of the dominant tech platforms — Google, Facebook, and Amazon in particular — has become a central topic of debate. In this talk, K. Sabeel Rahman will argue that these firms are best understood as the core infrastructure of our 21st century economy and public sphere. The infrastructural power of these firms raises a range of policy questions. What exactly about these firms (e.g., their accumulation of data, their gatekeeping functions, their control over vital public and economic functions like retail delivery or online speech) is “infrastructural?” How should these infrastructural functions be governed and regulated, in light of both their economic and political influence?
Monopoly Men. Boston Review (Lead article). October 2017. (online here)
Amazon. Google. Facebook. Twitter. These are the most powerful and influential tech platforms of the modern economy, and the headlines over the last few weeks underscore the degree to which these firms have accumulated an outsized influence on our economic, political, and social life. The danger of the “platform power” accumulated by Amazon, Google, Facebook, and Twitter arises from their ability to control the foundational infrastructure of our economic, informational, and political life. Even if they didn’t spend a dime on lobbying or influencing elected officials, this power would still pose a grave threat to democracy and economic opportunity. The fact that these companies provide enormously popular and useful goods and services is indisputable—but also beside the point. The central issue here is not simply the value for the consumer. Instead it is vast, unaccountable private power over the foundations of contemporary society and politics. In a word, the central issue is democracy.While the technological realities of Amazon, Google, Facebook, and Twitter are distinctly modern, the problems they pose for our economy and our politics are in many ways deeply familiar. They recall the threat that earlier generations faced in the height of the industrial revolution with the rise of corporate giants, which suggests that today’s reformers could learn a lot from the anti-monopoly movement.
Losing and Gaining Public Goods. Boston Review - Forum (Lead article). Fall 2017. (online here)
The clash over health care is the most glaring example of a more widespread battle over the meaning and importance of public goods: what they are, how they ought to be provided—and to whom. The question of whether to privatize and deregulate, or to restore—and even expand—public provision is at the heart of many contemporary political, economic, and moral debates. The battles over health care, education, and other goods underway today express a very different view of public goods, one grounded not in economic terms of efficiency and production, but rather in moral and political concepts. In this framework, “public goods” are those essential to enabling human success and well-being. Let’s call this the democratic conception of public goods. A democratic conception of public goods entails more than just the aspiration for equal access to basic necessities. It also includes a second, critical claim: that power in the modern economy is exercised through the control, administration, and provision of these very goods. Whether they are public agencies or private firms, providers of goods such as health care exercise control over those dependent on them. The practical realities of who can access which goods, and on what terms, represent the codification and institutionalization of citizenship—or its denial. Access to these goods is one of the key ways our society defines the demos itself.
Centering the Margins: A Framework for Equitable and Inclusive Social Policy. Co-authored with Rachel Black. January 2017. (online here)
Social policy does not disrupt patterns of economic and social division; instead it replicates them. We have a separate and unequal set of social policies that exacerbate inequality instead of providing a countervailing force against the factors that cause it. In our view, the only way to disrupt this cycle and redeem the equality of opportunity ideal is to replace our current separate and unequal system with one that embeds the ideals of inclusion and equity directly into our policies—and into the processes that design them. This new model applies the principles and methodology of human-centered design to social policy. That means originating policy design around the needs and wants of the families the policy is intended to serve and democratizing the process to include direct participation by the families. By centering policies around what will best serve the families who have been placed at the margins by the current policy approach, giving these families a meaningful voice in the design process, and evaluating the effectiveness of interventions according to their outcomes, this model marks a radical shift in the power dynamics of how policy is made and who it works for. This paper offers a blueprint for putting this innovative proposal into practice.
Challenging the Curse of Bigness. The American Prospect, November 29, 2016 (online here)
Many economic inequities and abuses today stem call for renewed antitrust remedies from the Progressive Era -- if we get serious about enforcement.
Creating an Infrastructure of Opportunity. American Constitution Society. September 2016 (online here) [POLICY PAPER]
Many of the inequalities we face in today’s economy are not just a product of increased risk faced by poor families, contingent workers, and the like; rather they are products of deeper structural disparities in access to opportunities. Equal opportunity is not about fair competition or risk mitigation; it is fundamentally about freedom. If the goal is to provide freedom for each of us to develop the lives and experiences we have reason to value, then the purpose of social policies must be understood in terms of enabling access to those goods, services, and opportunities whose presence in turn enables that freedom—and whose absence narrows it. We can think of these as public goods in which our policies must invest. These public goods are not physical infrastructure like roads or bridges; they are a kind of “social infrastructure of opportunity” that makes possible a wider array of stable, secure life pathways. We must think of goals like universal healthcare, universal benefits like child care support, and universal access to pensions as the shared “infrastructure of opportunity” that can ease the precarity and poverty experienced by too many in America today. Practically, we must reevaluate our social contract and welfare policies in two further steps: identifying those elements of social infrastructure that are most critical, and developing a mix of public provision and regulatory oversight to ensure access to those goods and services.
Reinventing the Social Contract. Roosevelt Institute, September 2016 (online here). [POLICY PAPER]
From the rise of the “on-demand” economy to the proliferation of low-wage, contingent, and precarious work, it is becoming increasingly clear that the old models of the social contract are eroding. This paper provides an overview of the drivers behind this collapse and the key frontlines in developing a 21st century social contract. First, it suggests that the collapse of the old social contract is rooted in deeper trends in technological change, financialization, and the reallocation of economic power in 21st century capitalism. Second, it argues that to address these changes, public policy must focus on three major goals: regulating the new forms of private power in the economy; expanding the voice and economic independence of workers through new modes of organizing and an updated social safety net; and creating more responsive and inclusive institutions of governance to implement these policy changes. These initiatives are about more than just worker rights and wages; they are fundamental to creating an inclusive and egalitarian economy.
UNTAMED: How to check corporate, financial, and monopoly power. Roosevelt Institute, June 2016. [POLICY PAPER]
I co-authored sections on competition policy and regulatory responsiveness for this White Paper on how to restructure economic rules to combat inequality. You can read the report here, or view the panel from our launch event to the right, featuring Mike Konczal (Roosevelt Institute), Rana Foroohar (Time Magazine), Rashad Robinson (Color of Change), and myself.
Economics of Power. (online link here). Pacific Standard, April 2016.
Increasing economic inequality is not just about the changes in the workforce. It’s also about a shift in the balance of power in the economy.
What Clinton and Sanders Are Really Fighting About (online link here). The Atlantic, February 6, 2016.
The Democratic candidates have revived an old progressive debate about whether big business can be regulated, or must be broken up.
How To Revive Progressive-Era Economics for the New Gilded Age (online link here).The Nation, July 2015.
How do we fight concentrations of private corporate power? By studying how they did it last time.
Curbing the New Corporate Power (online link here). The Boston Review, May/June 2015.
How should we regulate the new forms of private power in the internet economy? From Amazon to Google to Uber, these technological giants present novel forms of corporate power that outstrip conventional modes of regulation. But reformers from a century ago developed a novel approach for corporate giants that exerted control over key aspects of economic infrastructure: the public utility model. This model offers a starting point for addressing the new forms of power in the information economy.