Love, Equality, and Corruption

What is corruption? Unless one takes an absolute (and hard to defend) view of words’ meanings—there is a fixed meaning, it cannot differ—this question can mean different things. What has it meant in the past? What has it meant to judges? What social function does the word play? Does it have any meaning at all, or is it just another word for a different idea? Does the meaning it had historically have any coherence? Does the meaning it has now have any coherence? What do most people think it means? What do most scholars think, or most lawyers, or most U.S. Supreme Court Justices

Market Structure and Political Law: A Taxonomy of Power

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category – which we call dominance, after Brandeis – as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all companies engage in all of these levels of power – that is not the point. The point is that Bank of America and Exxon govern our lives in a way that, say, the local ice cream store in your hometown does not. Explicitly understanding the power these companies wield as a form of political power expands the range of legal tools we should consider when setting policy around them

Algorithmic Personalized Wages

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put workers in a profoundly humiliating position in relationship to their boss, one where speech and autonomy are discouraged because they can lead to lowered pay.Finally, it argues that we should understand these developments as innovations in power and domination and use old anti-monopoly strategies as ways to limit the democratic downsides of these tools. We should explore bans or limits on first degree labor pricing discrimination and enhanced antitrust enforcement

The Roberts-Kennedy Court and Post-Political Democracy

This Essay explores the ideological underpinnings of the modern Supreme Court’s election law decisions, arguing that the Court does not have a strong commitment to federalism or to unfettered debate or to the mistrustful citizen. Instead, the opinions reveal a complacency about corruption and a narrow view of the role of citizens. The Essay is part of a volume on neoliberalism for Law and Contemporary Problems