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
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.
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 political gridlock. I am also working on several academic papers in progress:
- "From Economic Inequality to Economic Freedom: Constitutional political economy in the New Gilded Age" (forthcoming, Yale Law and Policy Review). Provides an normative account of economic freedom adapted to the era of economic and political inequality, and implications for public policy, social movements, and public law.
- "Private Power, Public Values: Regulating Social Infrastructure in a Changing Economy" (under review). Argues that Progressive Era theories of public utility can be adapted to regulating the private provision of basic necessities, from broadband to finance to healthcare.
- "Canary in the Coal Mine: The On-Demand Economy and the Regulatory Challenges of 21st Century Capitalism" (under review). Dissects the different types of systemic policy change needed to address problems in the on-demand economy, from new modes of social insurance to reformed city planning to alternative modes of labor organizing.
- "From Civic Tech to Civic Power: The Case of Citizen Audits" (under review). Explores how the use of 'citizen audits'--the participatory monitoring and enforcement of regulatory standards--can both empower stakeholders and make regulation more effective.
- "Popular Administration" (in progress). Develops an approach to administrative law and regulatory practice that takes seriously the ways in which regulation is influenced by civil society and stakeholder groups.
- "Policymaking as Power-building" (in progress). Suggests that public policies be designed in ways that provide more equal voice to affected constituencies. Preliminary draft as presented at the Scholars Strategy Network and Ford Foundation convening on "Purchasing Power" here.
Democracy against domination: Contesting economic power in progressive and neorepublican political theory
Contemporary Political Theory (April 2016)
Available 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 neorepu- blican 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
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.
Although much attention has been paid to the formal institutional mechanisms of transitional justice by which a society attempts to create historical narrative and open up the space for a vibrant public sphere – such as truth commissions or tribunals – less attention has been paid to the profound social, cultural, and discursive challenges in restoring a vibrant public sphere after the experience of authoritarian rule. Each of these three authors capture unique challenges as their countries struggle to restore a public sphere of relativel open political discourse. Gao Xingjian rejects Chinese authoritarianism’s attempts to force writers into working in the public sphere and crafting national historical narrative; finding no option but to flee, he discovers in exile that his removal enables him to craft the historical narrative of the society for which he is no longer a part. Orhan Pamuk provides a window into the ways in which identity and ideological differences can cripple public discourse despite the development of nominal democracy in Turkey. J. M. Coetzee examines the psychological legacy of authoritarian rule in South Africa and its capacity, even in situations of formal transition to democratic institutions and norms, to subvert the capacity for moral imagination, moral action, and the development of genuine political community. All three works emphasize the role of art and literature in shaping and reflecting the reconstruction of political identity during times of post-authoritarian transition.
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
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.
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.