Forthcoming and works in progress

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.  I am also working on several academic papers in progress:

  • "Constructing Citizenship: Exclusion and Inclusion through the Governance of Basic Necessities". Forthcoming, Columbia Law Review. (Available online here.) 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). Manuscript in review. 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.
  • "A Crisis of Democratic Responsiveness?" UCLA Law Review, forthcoming (2018).
  • Of, For, and By the People: Rebuilding Civic Power in an Era of Democratic Crisis. With Hollie Russon Gilman. Cambridge University Press, forthcoming. 

Published papers

Reconstructing the Administrative State in an Era of Economic and Democratic Crisis. 
Harvard Law Review, Vol. 131 (2018) (online at HLR here or on SSRN here.)
[Reviewing Jon Michaels' Constitutional Coup]. 

This Review engages Michaels’s important work, situating it in context of these wider economic and social battles to sketch a broader claim. The defense of the administrative state, this Review argues, is not just about assuring checks and balances; it is about preserving democracy — the idea that, through political institutions, we the people expand our capabilities and capacities to remake social and economic systems that are otherwise beyond the scope of individuals, associations, or ordinary common law. It is also about democracy in its substantive connotation: through the administrative state, we make possible the realization of substantive democratic values of equality and inclusion. 

Policymaking as Power-Building. Southern California Interdisciplinary Law Journal, Vol. 27 (2018) (online here)

The problem of balancing power through institutional design — always a central concern of constitutional theory — has taken on even greater salience in current scholarship in light of contemporary concerns over economic inequality and failures of American democracy today. This paper extends these concerns into the realm of administrative law and the design of regulatory policy. I argue that in an era of increasing (and increasingly interrelated) economic and political inequality, we must design public policies not only with an eye towards their substantive merits, but also in ways that redress disparities of power. In particular, we can design policies to institutionalize the countervailing power of constituencies that are often the beneficiaries of egalitarian economic policies, yet lack the durable, long-term political influence to sustain and help implement these policies over time. This concept of “policymaking as power-building” rests on a descriptive and normative claim. Descriptively, the paper shows how historical and contemporary analyses of administrative governance indicates that regulatory institutions and policies are already involved in shaping and responding to the balance of power among civil society groups. Normatively, the paper argues that this reality should be harnessed to pro-actively design policies that mitigate power disparities, and in so doing promote greater democratic responsiveness through regulatory policy design. The paper develops this argument through case studies of power-balancing policy design in local regulatory bodies around economic development initiatives, and in federal regulation around the case of financial reform. The paper then theorizes a more general framework for designing similar power-shifting policies that are portable across substantive areas of law and policy and across federal, state, or local level administration. This framework should be of interest to policymakers, advocacy groups, and other practitioners designing regulatory policies and concerned about dangers of capture and disparate influence. This account of policymaking as power-building synthesizes literatures in law, social science, and political theory to offer a more institutionally-rich account of power and the interactions between constituencies on the one hand and policymaking institutions on the other. It also extends the current debates on power and public law, law and inequality, and administrative and local government law.

NB: Preliminary drafts of this argument were presented at the Scholars Strategy Network and Ford Foundation convening on "Purchasing Power" here.  

 

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). [Available on SSRN]

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.

 

Infrastructural Regulation and the New Utilities. Symposium on Public Utility, 35 Yale Journal on Regulation 911 (2018). Online here.

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. Critical Analysis of Law (forthcoming, 2018). [LPE BLOG POST]

 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 Law and Technology Review (forthcoming, 2018) [Symposium online here]

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.

 

From Civic Tech to Civic Capacity: The Case of Citizen Audits. Political Science and Politics. July 2017. (online here).

This paper identifies and theorizes an important mode of participatory governance: citizen audits -- the organized, strategic use of participatory monitoring techniques to hold government actors accountable. Citizen audits offer a unique mechanism for generating political accountability and redressing disparities of capture, corruption, or power. Citizen audits achieve this by catalyzing the mobilization and organization of civil society actors. By combining this mobilization with policy-relevant data-gathering, citizen audits generate pressure and influence on policymakers. Citizen audits are thus, crucially, not about a utopian or idealistic appeal of civic engagement; rather they are realistic and urgent responses to fundamental failures of governance and disparities of political power. As this paper will argue, citizen audits represent a mode of participation that is importantly distinct from two of the prevailing discourses in present-day debates about democracy, civic engagement, and governance reform.

 

Shape of Things to Come: The On-Demand Economy and the Normative Stakes of Regulating 21st-Century Capitalism. European Journal of Risk Regulation (2016). [Available on SSRN]

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.

 

Producing Democratic Vibrancy. Brooklyn Journal of Law and Policy, 2016  (online here

In this short essay, I suggest that we need to broaden how we conceptualize the elements of democratic vibrancy and responsiveness, while recognizing that this change will have important implications for the legal and policy debates around democracy reform. In short, I argue that a vibrant democracy is not just one that protects free speech and electoral accountability; it is also one that empowers a wide range and diversity of constituencies to not only consume speech, but also to produce it, to be fully empowered political actors with the opportunity to shape and participate in the political process as more than just voters.  I suggest that we approach the theory of democratic vibrancy and failure from a different angle: the degree to which individuals and communities are empowered to act not as voters “consuming” political speech, but rather as producers of political speech and democratic action — as fully-fledged political agents capable of mobilizing, organizing, advocating, and running for office. This shift in focus to the potential inequities and disparities in the production of political speech and action points to a second important reorientation in this debate, away from the narrow focus on First Amendment doctrine and campaign finance reform — as important as these issues are — to the much broader set of laws, institutions, practices, and norms that comprise our foundational infrastructure for democratic vibrancy. Our toolkit for assuring a robust democratic polity involves a much wider range of possible reforms and interventions extending beyond electoral financing to encompass the very design and operation of the institutions of ordinary policymaking — and we will need all of these tools, not just doctrinal or campaign financing ones, to address the failures of twenty-first century American democracy.

 

From Economic Inequality to Economic Freedom: Constitutional political economy in the New Gilded Age. Yale Law and Policy Review, vol. 35 (2016), pp. 321-36. [Available on SSRN]

This Essay has two central goals, one substantive and one methodological. Methodologically, I want to suggest that a progressive response to today’s inequality crises requires such a small-c constitutionalist approach. This shift to small-c constitutionalism is ultimately a catalyst for driving progressive social change. As a growing number of scholars are suggesting, the task of combating inequality is one of “constitutional political economy” — the project of interrogating and reforming the values and structures that shape our collective social, economic, and political life. By shifting our focus to public philosophy, social movements, legislation, and regulation, we put courts in their proper role as part of a larger ecosystem of actors, arenas, and institutions grappling with social change.

 

Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism? Texas Law Review, vol. 94 (2016), pp. 1329-59. [Full paper available on SSRN] [BLOG POST SUMMARY]

What is the role of the constitution and constitutionalism in the current debate over economic inequality?   Drawing on Progressive Era political thought, especially reinterpreting the dawn of the legal realist movement, this paper offers a moral framework for conceptualizing today’s inequality crisis, and a theory of social change that links law, constitutionalism, public policy, and social movements.  The constitutionalism evidenced by Progressive Era and legal realist theorists of domination and democracy is not the high Constitutionalism of Supreme Court doctrine, precedent, or textual interpretation. Rather, it is the “small-c” constitutionalism of social movements, of public philosophy, and of the laws and regulations that literally constitute our politics and our economics. Constitutional political economy, on this view, is the concern not just of courts but of we the people. Its primary tools for change are not just judicial decisions, but legislative, regulatory, and other forms of ordinary governance.

 

Democracy against domination: Contesting economic power in progressive and neorepublican political theory. Contemporary Political Theory (April 2016) [Online here.] 

This article argues that current economic upheaval should be understood as a problem of domination, in two respects: the ‘dyadic’ domination of one actor by another (such as in the case of corporations over workers), and the ‘structural’ domination of individuals by a diffuse, decentralized, but nevertheless human-made system (such as the ‘market’ itself). Such domination should be contested through specifically democratic political mobilization, through institutions and practices that expand the political agency of citizens themselves. The article advances this argument by synthesizing two traditions of political thought. It reconstructs radical democratic theory from the Progressive Era (1880–1920). These thinkers in turn help to reinforce contemporary debates in neorepublican thought, resolving disputes over the scope of domination and the relationship between domination and democracy. This synthesis offers a novel normative framework for diagnosing and responding to the current combination of economic upheaval and political dysfunction.

NOTE:  This paper outlines the normative and intellectual historical background for my other work on constitutional political economy.  Many of these arguments are also developed more deeply in my forthcoming book.

 

Democracy and Productivity: The Glass-Steagall Act and the Shifting Discourse of Financial Regulation. Journal of Policy History, 24:4 (Fall 2012), pp. 612-643.  [Download from SSRN  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.

 

Envisioning the Regulatory State: Technocracy, Democracy, and Institutional Experimentation in the 2010 Financial Reform and Oil Spill Statutes. Harvard Journal on Legislation, Vol. 48:2 (2011)  [Available on SSRN here]

In the summer of 2010, Congress considered legislation responding to two very different policy crises: the Dodd-Frank financial reform bill responding to the 2008-9 financial crisis, and the CLEAR Act responding to the Deepwater Horizon oil spill in the Gulf of Mexico.  While addressing different policy issues, both of these statutes were centrally concerned with reforming the structure of the regulatory state itself to promote more effective policymaking, particularly in response to fears of agency capture, and a lack of responsiveness or accountability.  This paper analyses the two statutes side-by-side as exhibiting a common set of visions and concerns about the regulatory state.  On the one hand, both statutes exemplify a technocratic impulse common in American political thought and policy.  Under this approach, regulatory effectiveness is promoted by expanding the expertise, coordination, and political insulation of agencies.  But at the same time, both statutes engage with a range of experiments with moredemocratic regulatory reforms—expanding participation in regulatory policymaking, establishing formal mechanisms for interest representation, creating additional democratic counterpublics where citizens can engage and policies can be innovated, and promoting vertical accountability within corporations.  While these debates about democracy and the regulatory state are long-standing ones in administrative law, these statutes raise some innovative institutional approaches that together hint at a potentially fruitful alternative framework for regulatory reform, one that harnesses the potential of democratic politics to respond to concerns about agency capture, responsiveness, legitimacy, and accountability.

 

Conceptualizing the Economic Role of the State: Laissez-Faire, Technocracy, and the Democratic Alternative. Polity 43:2 (April 2011), pp. 264-286. [Available here.]

This article contrasts three visions of political economy that appear in the writings of Keynes, Hayek, and Polanyi. and discusses their relevance to current debates over economic policy in the United States.  Keynes proposed optimizing market practices through technocratic governance.  In recent decades, this influential approach has proven vulnerable to the revival of Hayek’s laissez-faire arguments.  Polanyi, by contrast, introduced a framework that criticizes both laissez-faire conceptions and the technocratic approach pioneered by Keynes.  Because of its emphasis on democratic participation, Polanyi’s reasoning provides the building blocks for a new type of contemporary progressive politics.

 

The Literary Public Sphere in Post-Authoritarian Transitions: Gao Xingjian, Orhan Pamuk, and J. M. Coetzee. Co-Authored with Sheena Chestnut. Conference paper, American Political Science Association, 2008. Wilson Carey McWilliams Prize (best paper, ‘Politics, Literature, and Film’ section).

This paper explores the challenges posed to the development of the public sphere during democratic transition by examining the works of three notable novelists, all writing during their home country’s transition away from authoritarianism: Gao Xingjian of China, Orhan Pamuk of Turkey, and J. M. Coetzee of South Africa.

 

Social Capital and What It Represents: The Experience of the Ultra-Poor in Bangladesh. Co-authored with Karishma Huda and Cathy Guirguis. Journal of Power, 1:3 (2008), pp. 295-315. [Available here]

The Bangladesh Rural Advancement Committee (BRAC) engaged in an experiment to build social capital for the ultra poor in rural Bangladesh by fostering linkages between members of their development programme, the Targeting Ultra Poor (TUP), with members of the village elite, known as the Gram Shahayak Committee (GSC). This paper assesses the quality of these social ties through two theoretical lenses: the conceptualisations of Robert Putnam and those of Pierre Bourdieu. It also draws upon primary research gathered in Holholiya and Boragari, two villages where the TUP and the GSC have been operating for several years. The findings illustrate that BRAC did provide a vehicle through which new forms of social capital were created for the extreme poor. However, another reality highlights that such ties are laden with relationships of dependency. The poor also are not passive victims within a hierarchical system, as both theorists suggest, but exert agency and show defiance in subversive ways.

 

Development, Democracy, and the NGO Sector: Theory and Evidence from Bangladesh. Journal of Developing Societies, 22:4 (2006), pp. 451-473.  [Available here]

The presence of non-governmental organizations (NGOs) in developing countries is often assumed to indicate a vibrant civil society that can help promote good governance and effective policy implementation where state infrastructure is weak. Using the case of Bangladesh, this study argues that the NGO sector as a whole has shifted away from its initial focus on promoting political mobilization and accountable government, to the apolitical delivery of basic services. The result of this ‘depoliticization’ of NGOs is anaccelerated erosion of democratic institutions in Bangladesh. While current studies of NGOs are correct to stress the influence of western donors in driving this depoliticization, the process in Bangladesh results from the combination of international donor pressure with a domestic environment inimical to political activism. The study suggests that in many developing country contexts, NGOs and civil society actors need to pay more attention to mobilization efforts that can promote both the short-term empowerment of the poor and the long-term consolidation of democratic institutions.