Democracy Against Domination – Book manuscript, forthcoming

[Forthcoming, 2016, Oxford University Press]


The modern economy poses a challenge to democratic ideals. Market forces and corporate power undermine the prospects for economic well-being, while seeming to exist beyond the capacities of ordinary citizens. Traditionally American politics has appealed to one of two approaches to governing the economy: a laissez-faire approach that relies on self-correcting markets, and a managerial approach that relies on neutral, insulated expert regulators. By contrast, this book argues for a more democratic approach to economic governance. First, the book identifies the moral challenge of the modern economy in terms of domination, whether in the concentrated private power of corporations or the diffuse system of the market itself. Second, the book argues that such domination must be counteracted by democratic politics, through the use of institutions and practices that empower citizens to mitigate these forms of power. Such democratic economic governance draws on a different tradition of American politics rooted in the thought and reform politics of Progressive Era thinkers like John Dewey and Louis Brandeis. Using the case of financial regulatory reform after the 2008 financial crisis, the book outlines how this focus on domination and democracy suggests a very different approach to economic regulation. The focus on domination implies economic regulations that attempt to limit the concentrated power of corporations like too-big-to-fail financial firms through structural constraints. The focus on democratic agency suggests a regulatory process that rather than prioritizing insulated expertise cultivates a more participatory and inclusive form of collective decision-making.

Chapter outline below the fold.

Continue reading “Democracy Against Domination – Book manuscript, forthcoming”

About me

Assistant Professor of Law, Brooklyn Law School.  Fellow at the New America Foundation.  Research focus on participatory governance, public law (constitutional, administrative, electoral, local government), economic policy, international development. (More here)

Current works in progress

  • “Constitutionalism, Progressivism, and Political Economy in the New Gilded Age”.  Draft presented at “Law and Inequality” conference, Yale Law School, October 2015.
  • “Transcending the New Deal Idea of the State: Managerialism, Neoliberalism, and Participatory Democracy.”  Draft presented at “Beyond the New Deal Order” conference ,UC-Santa Barbara, September 2015. 
  • “Private Power, Public Utilities, and the ‘Curse of Bigness’ Revisited.”  Draft presented at American Political Science Association annual convention (September 2015); and American Association of Law Schools annual conference, Business Associations and Law & Economics Section, “Corporate Law and Economics Revolution 40 years Later” (January 2016).
  • “Disrupting Democracy: Accountability and Equality in the On-Demand Economy.”   Draft presented at “Approaches to Capitalism” workshop, Stanford University, November 2015.
  • “Managerialism, Structuralism, and the Competing Logics of Financial Regulation.” Draft in progress.
  • “Citizen Audits.”  Draft in progress.
  • “Regulatory Capture and Democratic Theory.” Draft in progress.
  • Democracy Against Domination: Markets, Experts, and Citizens in Economic Governance. Book manuscript, Oxford University Press, forthcoming.

Brief abstracts below the fold.

Continue reading “Current works in progress”

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.

First, the paper excavates a substantive moral critique of economic power at the heart of Progressive Era thought, centered around the problem of domination—unchecked economic and political power—and the moral priority of democracy—the means by which such power is contested and checked. This rich political-economic critique of industrial capitalism offers a normative framework for imagining a more democratic and egalitarian response to the inequality crisis of today.

Second, the paper suggests that this Progressive Era-inspired account of democratic political economy also implies a particular theory of social change that is worth recovering in today’s debates about the role of law and the role of the courts in the inequality crisis. The moral focus on domination and democracy orients us towards reform strategies that look to the ways in which law structures economic and political processes to allocate power, capabilities, and opportunities. These underlying structures emerge as critical sites of contestation, reform, and change. Thus, we might shift the terms of economic power through legislative and regulatory moves like antitrust and public utility; and we may magnify the democratic political power of citizens by creating alternative vehicles for voice and participation at the national or local level.

Third, the paper suggests that this vision of social change in turn implies a very different reading of the role of constitutionalism and constitutional theory in political-economic debates. 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.

Finally, the paper concludes by considering the implications of this domination- and social-movement-focused recasting of legal realism for ongoing debates about the relationship between legal inquiry and social change, particularly in today’s post-financial crisis era.


Democratizing Development – The Nation

The Nation, “Cities Rising” series – online here.

In the midst of our national conversation about economic inequality, questions of local-level economic development are critical. Although easily overlooked in favor of more sweeping policy issues, the reality is that cities have a disproportionate stake in the inequality crisis.The concerns over development go even deeper than job-creation numbers and zoning. Beneath the surface is a new and more persistent anxiety about governance—about who makes decisions and how those decisions get made. If economic policy is to address inequality, it must not only be the right policy; it must also be formulated and driven by the right people.

Rethinking Regulation – White Paper

Roosevelt Institute White Paper (available online and PDF here)

A more inclusive economy depends on an inclusive political process. Regulatory agencies are central institutions in economic policymaking, yet regulators remain vulnerable to undue political influence from established business and industry interests. How then can we reinvent regulation to be more accountable and responsive to the public at large? This white paper provides a progressive framework for addressing the problem of regulatory reform. The paper argues that instead of seeking to undo regulations or further insulate regulators, we must instead pursue reforms that expand participation and representation for a more inclusive set of stakeholders within the regulatory process itself.

The paper begins with a brief history of different attempts at reforms to ensure regulation serves the public interest, from the New Deal’s faith in expertise to the rise of procedural statutory requirements for regulation to the attempts by both left and right to respond to the charges of capture in the later 20th century. The paper then highlights two particular episodes of democratizing reform efforts: the War on Poverty in the 1960s and 1970s, and more recent innovations in participatory governance in the U.S. and internationally. These episodes suggest some ways in which governance can harness democratic participation and representation to improve accountability and responsiveness.

The paper then offers specific policy recommendations for reinventing progressive regulation by incorporating these democratizing strategies. In particular, the paper calls for reforms that: (1) institutionalize stakeholder representation within regulatory agencies; (2) empower grassroots citizens to drive monitoring and enforcement of rules; (3) update the procedural and presidential oversight requirements for agencies to enable greater participation; and (4) expand and rethink the staffing, resources, and structure of agencies to facilitate participation.

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.

Domination, democracy, and constitutional political economy

Reflections on Progressive Era political thought, new debates over constitutional political economy and economic inequality, and the Texas Law Review symposium on Fishkin and Forbath’s forthcoming Constitution of Opportunity.  Posted on Balkinization:

  1. Constitutional political economy in the New Gilded Age: A revival of legal realism? (Monday, January 25, 2016).
  2. What is “constitutional” about “constitutional political economy”? (Wednesday, February 3, 2016).

Boston Review Forum: “Curbing the New Corporate Power”

How should we understand and control the new forms of corporate power emerging in the sharing economy and the Internet Age? This cover article for the Boston Review forum explores the challenge of corporate power today, drawing on insights from Progressive Era reforms to outline some ways forward.

Main article online here.

Plus great responses and discussion from Richard White, Juliet Schor, Mike Konzcal, Arun Sundararajan, and more. My response to critics online here.