Money on the Left

Coordination Beyond the Corporation with Sanjukta Paul

May 18, 2020 Money on the Left
Money on the Left
Coordination Beyond the Corporation with Sanjukta Paul
Chapters
Money on the Left
Coordination Beyond the Corporation with Sanjukta Paul
May 18, 2020
Money on the Left

In this episode, Maxx and Scott speak with legal scholar Sanjukta Paul about imagining alternative and more just forms of economic association in ways that denaturalize the 20th-century monopolistic firm. The key, Paul argues, is to reveal and contest the public “coordination rights” that legally structure all economic activity. 

Sanjukta Paul is Assistant Professor of Law at Wayne State University. Her current research and writing involves the intersection of antitrust law and labor policy. She is currently writing a book tentatively titled, Solidarity in the Shadow of Antitrust: Labor & the Legal Idea of Competition, which will be published by Cambridge University Press. Her scholarly work has appeared in the UCLA Law Review; Law & Contemporary Problems; The Berkeley Journal of Employment & Labor Law; and The Cambridge Handbook of U.S. Labor Law.

See here for the important paper we discuss in this episode, "Antitrust as an Allocator of Coordination Rights" (UCLA Law Review, Vol. 67, No. 2, 2020).   

Show Notes Transcript

In this episode, Maxx and Scott speak with legal scholar Sanjukta Paul about imagining alternative and more just forms of economic association in ways that denaturalize the 20th-century monopolistic firm. The key, Paul argues, is to reveal and contest the public “coordination rights” that legally structure all economic activity. 

Sanjukta Paul is Assistant Professor of Law at Wayne State University. Her current research and writing involves the intersection of antitrust law and labor policy. She is currently writing a book tentatively titled, Solidarity in the Shadow of Antitrust: Labor & the Legal Idea of Competition, which will be published by Cambridge University Press. Her scholarly work has appeared in the UCLA Law Review; Law & Contemporary Problems; The Berkeley Journal of Employment & Labor Law; and The Cambridge Handbook of U.S. Labor Law.

See here for the important paper we discuss in this episode, "Antitrust as an Allocator of Coordination Rights" (UCLA Law Review, Vol. 67, No. 2, 2020).   

spk_0:   0:08
you are listening to money on the Left, the official podcast of the modern Money Network Humanity's division, proudly presented in partnership with Monthly Review online. In this episode, Max and Scott speak with legal scholar. Send Duke DePaul about imagining alternative and more just forms of economic association in ways that d naturalized the 20th century monopolistic firm. To do so. Send You, Toe argues it is critical to make both visible and contestable what she calls coordination rights term of send you presume coinage. A coordination right is any public legal permission which grants persons and groups the capacity to engage in particular forms of social organisation and provision a central function of antitrust law and on our reading money. As such, Coordination rights have been variously monopolized and privatized by decades of new liberal lawman, leveraging orthodox neoclassical values of competition, efficiency and consumer welfare. Neo liberal law has constructed an exclusionary and strictly hierarchical multinational corporation while systematically denying democratic and more horizontal coordination rights to an expanding for Carrie. In opposition to such any liberalisation, Sanjay Gupta insists on the essential publicity's and malleability coordination rates, inviting leftists to invent new modes of collective organization and production for a prosperous and sustainable future Before we get into the conversation. Here's a brief by Sandra DePaul is assistant professor of law at Wayne State University. Her current research and writing involved the intersection of antitrust law and labour policy. She's at work on a book tentatively entitled Solidarity in the Shadow of Antitrust, Labor and Legal Idea of Competition, which will be published by Cambridge University Press for scholarly work has appeared in U. C. L. A. Law Review Law and Contemporary Problems Berkeley Journal of Employment and Labor Law in the Cambridge Handbook of U. S. Labor Law Special Thanks, as always, to our production team into hillbilly motive. Who composed the theme too further do. Then here is money on the left. Conversation with some beautiful

spk_1:   2:26
singer. DePaul. Welcome to money on the left.

spk_2:   2:30
Thank you. I'm so happy to be here. Maybe to

spk_1:   2:34
begin, you can tell our listeners a little bit about your personal background and your scholarly training and influences.

spk_2:   2:44
Sure. Um, I think maybe the place to start for that with, um one of the things I'm working on now that we're gonna be talking about is that I really come to these questions that are with it. You know these questions about antitrust law on intersection with Labour. In a lot of ways, I come to those questions from a practice background in labor and civil rights. Um, including time of a lawyer working pretty closely with organizing campaigns in various ways that, I mean, that is just an influence on me personally. Even though I was not an organizer, I have learned a lot from Organizer's who have worked closely with over the years on then, more specifically, through the organizing campaign I was involved with sort of right before I, um, right before I sort of, I guess, entered academia by. I was doing a fellowship at U. C. L. A law school. It worked closely with Noah. That's who it is there. But just before doing that, I was working on an organizing campaign of port truck drivers in Los Angeles who since the time of trucking deregulations the time when tracking deregulation took place in the early 19 eighties. Um, late seventies early 19 eighties have been classified as independent contractors and also also work in an industry that is in many ways characterized by destructive competition between their immediate employers and by very powerful buyers of very powerful customers. Um, namely sort of like the big box stores and now Amazon. And, um, the way that the antitrust question came up in that context was actually not something I was working on directly of the lawyer, but as a background condition for the whole organizing campaign, because before my time in the late nineties and the early two thousands, there were a number of wildcat strikes or water called in the labor movement. Wildcat strikes, which means labor actions that are pretty spontaneous and initiated by workers. UH, that took place around the country and a number of them centered in the Miami area, but also in Southern California and around the L A. Long Beach Ports, which is the largest port complex in North America and also handles the highest volume of goods. Um, and of those, those actions by workers were met with um were met with antitrust prosecutions by private entities by, uh, the sort of public private hybrid entities that many of the work complexes actually are, and including an investigation of worker leaders by the FTC. The federal trade commission itself. And so what sort of happened in the wake of that was that so? Those were these sort of wildcat strikes. He's more spot near. There were some labour. There were some labor organizations involved, but they were really following the lead of the workers at that point. And those actions were just to be clear in response to, um, sort of temporary spikes in fuel prices, which made it so that independent truck drivers, you know, weren't making money at all on trips. And so they engaged in collective walk off and things like that. And this is what you know, what what they were faced with. These were many of them in particularly in Southern California, immigrants, working class men, many, ah, large number immigrants from Central America who were bringing traditions of labour solidarity with them, which I think it's part of probably the reason for those spontaneous action. So that was how I got interested in antitrust law, actually, because when I was so I was, you know, doing other stuff when I was working on this in the, you know, a couple of years 2011 to 2013 thereafter, in other capacities while I was at you safely as well for a couple years after that, until I moved to Detroit where I live now. Um, but but I viewed sort of when I got to u C l A. It was sort of like you got to pick a research topic. You know what? I'm gonna research for the next couple of years, and I really wanted to understand How could it be that, um, truck drivers, individual truck drivers can be sued under antitrust law for engaging in collective action, you know, make a living wage and to feed their families? Basically, And that was personally how I came to these questions, and then it sort of went down this rabbit hole that sort of opened up into a subterranean cave. It feels like, um and which I'm like, sort of still in, but poking my head up here and there as well. So And I guess maybe to add one thing in that, you know, like, encountered like people, people coming to this question in other ways. People coming to the question in, you know, from viewing antitrust as an affirmative, uh, tool to address corporate power. Which of course, I'm invested in that project now as well. But right. So just to clarify

spk_1:   8:33
something for audience that I think being not in the law space or only an interloper and in an ignorant one of that, um, I think when I first started waiting into your work, um, the first thing that that us struck me was You know, when I hear antitrust, I think of 1/19 century monopolies and breaking them up, right? And then and then what you're describing here with, um, a deregulated trucking industry and wildcat strikes and what is keeping them back is that, isn't it? It's it's antitrust Law is being used against not not big monopolies, but against the workers who are trying Teoh minimally organize. And that's so you know, from an ignoramus point of view, it's so counterintuitive.

spk_2:   9:30
Well, I don't think it's ignoramus at all more accurate, but what is actually happening in antitrust law today on DNO? But in any case, that is exactly what caused me to pursue this, and I'm sure, in a way that what we're going to be talking about for the rest of this time, But briefly, I think I think it absolutely is counterintuitive. I think it absolutely is not what you know. It turns out what legislators intended. Um, and in a deeper sons, I think this is like, sort of what I That's sort of what I've become convinced, you know, sort of the last couple of years of working on this stuff. It's not just that they didn't want this to quote applied a labor. That's not the way to look at it. You know, it's that. And then I This is probably you know what? We're gonna talk about further, but I think that that the way that the whole language of sort of like the labor exemption and the question of does antitrust applied a labour or not, the way that question gets framed and the or the reason it gets framed that way is if you presume that the whole purpose of antitrust law is just to promote economic competition, and I do not think that's true. I don't think that that's what legislators intended either. And, um, I think that instead what that you know what legislators were looking to do. And this is, you know, certainly an interpretation as opposed to something they said in these words. But it's also, I think, what antitrust functionally does today, which is to allocate economic coordination rights and just to capture that intuition about competition. I think that includes the goal off promoting healthy business rivalry, where appropriate. Um, and I think that that is something that legislators certainly had in mind. But because and I think we're gonna talk more about contemporary a touch of salt. But because you raised the question about sort of 19th century trusts and monopolies and so that obviously raises the question of what legislative intent? Waas. Um, I think that legislators were concerned about a lack of competition where where the trusts were concerned. In other words, where competition pardon me, have been displaced by concentrated coordination rights, which is exactly what the trust were and which is exactly what the early corporations were. Um, right, so they did not see a problem with dispersed coordination, right? So, in other words, not just workers, but which, of course, at that time, you know, industrial workers were emerging as a class that had not really emerged, but sort of the emerging industrial working class, but also, um, farmers of which there were many, many more small farmers at the time, right and on also small producers and small proprietors of various kinds, which again we have to remember that apart from sort of, sort of, we have the landscape as we look at it now. But in the 19th century, there over really over the course of the 19th century, starting in many ways with the transformation of the labour relationship and then continuing what sort of like the what is really like the novel legal invention of the modern business corporation. You also had a concentration of coordination writes in the production process, right? So if you look at like, you can't even sort of say, like it's anachronistic, I think to look back and say, like where workers exempted or not? Well, first of all, we didn't have the modern employment relationship in the way that we do now. And in fact, the early labor movement, for example, in the nights of as embodied in the nights of Labour, was contesting the modern employment relationship itself, which is basically, you know, modeled on a master servant relationship. We associate it with, you know, sort of since the 19 thirties being associated with what I would call countervailing coordination rights through affirmative labor. A lot rate. But that's not what it failed at the beginning. It just entailed this sort of like right for the master to tell the servant what to do and extending that to the production process where previously most material production in the U. S. Had been generalizing a little bit. It is generally true, you know, had been done through the workshop mode of production sort of modeled on traditional guild relationships. Although we didn't really have formal guilds so much in this country, they're sort of this relationship. But you still have the master. But that was like Master, Journeymen, apprentice and, um, that that wasn't arrangement, which, most of the time involved of much greater dispersal off coordination rights around production itself, right, like journeymen had, um, it's I'm happy toe, you know, sort of, that they're among others who have written on this. Christopher Tomlin's is really great on this, a laborer, you know, scholar and historian as well, but again and kind of using like this language of coordination, writes describe it to try to like, make sense of all these. You know these things across changing law and changing economic circumstances. But that's fundamentally the case, right? Like journeymen have the ability to make rule, you know, make work rules to impact the production process, etcetera and taking back sort of taking that dispersal of coordination rights away. I mean, in one way, for people who want to use this language is what capitalism was all about, right, like that is about like concentrating those coordination writes in a few people who then, like, got there than So yes, it's about how yes it was about having these big machines now that became as important as, like, the skill intensive labor in many cases. But it's, I think it's really interesting, something that, um, some nights of labour, some labor leaders and the Knights of Labour say said at the time, which is that we're not lead ites were not against against sort of thes technological improvements were not against factories per se. What we want is to co govern the factories right and so and so what that would mean, you know, in this language is a dispersal of coordination, writes in the process of production and I think effectively we run together in certain ways. Um, the Trans, you know, the sort of technological shift to factories with the shift in the legal allocation of coordination rights, just as we do today, right? Like like the sort of in the gig economy. We tend to kind of sometimes conflate technological changes like, Oh, there's an app to do this now, so it's inevitable. Yeah, yeah, yeah, And there's two different things going on. There's a change in technology like maybe there's like a nap instead of a dispatcher and app instead of you know something else. But that's one change. Fine, but analytically. Any change that accompanies that in the allocation of economic coordination right is analytically separate. You can argue for it or argue against it, but it's not entailed by a factory or nap, right. And I think in fact, I think that there's a real parallel there, and I think that it is to the advantage of the people who are benefiting from the concentration of coordination right to characterize those two things as, um, all of one piece and to run them together

spk_1:   17:16
if I can, if I can, Um, if I can pause there. We sort of started this conversation off it, like quite the clip, and I appreciate all the detail and how we've already got into it. But if we can take perhaps Amore Bird's eye view of this allegorical cave that we're all sort of working in and feeling our way around and and that you feel your way around in, um your work can we maybe start to outline the way your approach breaks with the dominant so called law and economics school that has played such an important role in shaping the neo liberal era as well, Which the illegal studies approach that you take that we that you've sort of been performing and showing for us is known as the law on political economy movement. And if you could contrast those for for our listeners, I think it could be interesting to then link up some of these more specific accepts that what you've been talking about so far,

spk_2:   18:19
Sure, and I don't really want to speak for the line political economy. This is obviously like a project, and there's people who are in charge of that that aren't me, that I don't I don't necessarily. I do definitely associate myself with that. I also associate myself with legal realism, which I'm so label that however we want to label it. But But yeah, So, um so I would say so. Sort of like chronologically skipping ahead a little bit. And we were kind of talking about material that's true. But skipping ahead in kind of the way these things have been conceptualized, which those two things go together in various ways. So the line economics movement, how I would lost that weaken glass, this in a bunch of different ways, right? But how? I would gloss line economics, which is absolutely the dominant sort of cool or paradigm in antitrust law today and, as you said, impacts line policy thinking so much more broadly, which is one of the reasons I think antitrust is an interesting place to, like, excavate into the subterranean cave because that subterranean cave stands up shoots. Pardon me in other policy areas as well. On DSO, it's, I think, important and valuable to deconstruct it here. Um, so I would how I would glass it is that fundamentally what law and economics And you know, many people who are dear to this will contest this and say that no, it doesn't entail is And there's other ways so fine I would have to bracket a little bit to sort of make the statement. You know that I would say that fundamentally what? Oh, you know, globally. What? What this paradigm has done is that it has naturalized some, you know, certain allocations of coordination rights and put them legal allocations of coordination rights and put them out sort of like beyond, like discussion. And then we discuss the rest of the sort of coordination, writes contested coordination right purely on a frame of whether they promote competition or not. And then but secondarily, there's these two other norms involved of economic efficiency, which I'm sure we'll talk about more because I think it's not a very concrete concept and also consumer welfare. But just to be, as I think, even put those aside for a moment to try to just keep things as simple as possible, right, Even if you were to take those aside, what you're already doing is that you're just natural izing certain forms of competition of excuse me of economic coordination, notably coordination that takes place inside single firms or corporations, which I think is contrary to the intent of the anti monopoly movement and legislative intent and antitrust law and is contrary to just the entire world view off things in that 19th century that we were talking about right off most people, whatever, whether they were left or right. I don't think that that naturalisation had taken place yet. Um, so they said So that stuff gets naturalized and become sort of like invisible. Then we just talk about the stuff. That's the forms of economic coordination that are not invisible. And those, of course, include labor coordination in the form of labor unions. But they include all kinds of other sort of unconventional forms of economic coordination as well looser coordination between smaller actors of various types of co operatives. And those are evaluated, you know. So first, like sort of primarily under this norm of promoting competition, which, of course, just viewed on its space anything that economic coordination is a suppression of competition right on the end. And so there's automatically this kind of like suspect nous that anything that isn't in that sort of like favored naturalized side of things on. Then you have these supplementary. I was called them. You know, this kind of supplementary norms of efficiency and consumer welfare, which have been constructed and conditioned in ways that I think systematically disfavor workers and smaller actors, and we can talk more about that. But again, from that bird's eye view that your you know, sort of the best English, you are smart. So I think that's a bird's eye view what line economics does. And I think importantly line economic didn't start these things. I think that's really important to say. And Bork, who I think is like in the really interesting figure who at various points was sort of like, really honest about what he was doing of in a way that sort of the people have inherited that tradition like seem don't always. In my opinion, let's really pay attention to those moments where he's like, sort of telling us what he's doing right. But anyway, he in defending his approach in, um, you know, in his famous books that he wrote in the 19 seventies that had this sort of big influence on the intentions law, he says that you know I'm not I'm not inventing this sort of deference to intra firm coordination, you know, it was already there, and he's right. It was already there. And I think that it really started in the Lochner era, which is the period of time that, you know, immediately followed the passage of the Sherman Act, which is the first federal intention statute in 18 90. And this is when the when judges really construed antitrust law. And I think they took it in a direction that was not at all what legislators intended. And I'm happy to talk more about the details of that. But that but again, bigger picture that Lochner era, um, allocation of coordination, right? Like there was already a foundational allocation of coordination right that took place in that era, really done by judges in certain instead of important decisions the way that I would put it, I guess again, big picture is that I see 19 seventies law and economics which obviously being worked on before the 19 seventies. But you know, sort of was a defendant in the 19 seventies. I see that movement as picking up on and sort of like retrenching those fundamental categories of economic coordination that were favored in the Lochner era. But now doing it. Clothing, No clothing them in the language of the social science of neo classical economics or purporting Teoh Um, where in a way, the judges in the Lochner era were, I think, actually, in certain ways more honest in that they, you know, commentators at that time might just say things like, Uh, gosh, I mean, I don't overstate this, but there was. It was it got closer to sort of something like, Well, the people who know what they're doing should run society. And obviously that's the people in the corporate boardrooms and not he's not the, you know, he's like immigrant workers in the factories or whatever, you know what I mean? And I mean, that is not stated in any in any ah, judicial decision. But you get close to it. And some of the commentary, I would say, And of course, you have nothing like that in in contemporary line economics, you know, it's it's more sanitized, it's more, and I'm making no claims about what particular people believe. I don't think any particular person has to believe any of that for the paradigm toe work, right? And, uh, but But I think that it's just the value judgments about how we're going to allocate economic coordination rights are just on a further remove. You have to do this additional level of excavation, and they're still there. And logic. It's not just sort of like, historically, this is how it happened. Logically, they're required. Andi think we'll talk more about that, but but ultimately, like to claim that I would want to make Is that lot a lot of the key conclusions that Lina Comics is taken to and that you know, Bork work and others that just this economic analysis of law generally is taken toe have in antitrust law. The implications that's taken tohave, you know, sort of purport to be these, like independent conclusions of social science but in fact embed sort of normative and like hidden normative and legal assumptions in the premises that cannot be derived from from some independent reference

spk_0:   27:59
on eso,

spk_1:   28:04
as then, I think, as we move into the legal realism side. In contrast to this suggests naturalized neoclassical lawn economics, which has a has a longer history. Yeah, perhaps I think it could be useful if in sort of defining and describing your your approach. If we could sort of start with a relatively basic definition of what coordination rights are in the first place because I think our at some level that it's intuitive what coordination rights are. But also at at another, it could be useful to specifically suggest the break with competition and efficiency that you're making as as a product of your legal realist approach. Can I follow up here? Is it the case that are you borrowing this term from elsewhere, or is this your term? And what kind of work is that? Is that term doing for you?

spk_2:   29:09
Okay, well, no, it is. I did. It is my term. I don't want to say it's my term, because I hope other people but, uh, no, I didn't borrow it from somewhere else. And a, um I'll try toe summarize. I think it's a good question. So the fundamental claim here and yes, it really comes from generally illegal realist approach and again to just situate that a little bit in terms of intellectual history. I think that, you know, so the legal realist sort of were I mean you could. You could say that Oliver Wendell Holmes was like a proto legal realist in certain ways. He was writing a little bit earlier. But then really the legal realist come into being, you know, around the same time that the Lochner era is really just feli Feli getting going and is a response to the what's often called the laws a fair approach of Lochner era jurisprudence, Right, which embeds all these, um, unstated assumptions just as law and economics does now. And so I think legal realism at the time was excavating those just as I think I you know, I'm trying to dio with this the with with our legal language today. And so, yes, I think it's just sort of explained that frame, you know, the what I would suggest is that antitrust law and in fact, law is always allocating coordination. Right, So this isn't sort of a normative clean By making where I'm saying that oh, antitrust law should allocate coordination right instead of promoting competition. My point is that whatever you know, you can say that you're promoting competition and this is the point of the excavation, particularly in that u C L. A paper which I know you looked at. Whatever the stated, just, you know, the state of justifications are competition, economic efficiency, consumer welfare fund and mentally. What you're doing is you're allocating economic coordination rights for any given instance of economic coordination. Whether that is coordination and production, most paired dogmatically weaken. Look at coordination on prices because that's something that so, so often clearly illegal in in the circumstances where illegal. But it's not always illegal, right? And so if you look at that, that's maybe the best way for me to illustrate it. Um, actually, let me say the general claim first under the first, the specifically so the general claim would be that for any instance of economic coordination, antitrust law is always either saying that it's permitted or not. It is making that judgment, and if making that judgment in contingent ways, according to particular normative criteria that are contingent that we are able to look at and decide on others if we wish Teoh, you know, democratically as a society, um and then that's the general claim and then the specific claim that helps to hopefully make that a little bit more vivid is that if you take sort of like, you know, price coordination, which is something that kind of going to raise orange flags, if not red flags under antitrust law, you look at how that's treated. A group of truck drivers, for example, engage it who are like, Let's go back to those independent truck drivers if they're engaging in direct horizontal price coordination of the price of that They charged customers. They're not working for a firm. They're doing that directly right or they're doing that among each other in working for a trucking firm. Either way, that is what I mean raises that antitrust issue, which is exactly the issue that got me interested in the first place, right and then and then. On the other hand, if those eggs that exact same group of truck drivers hold everything constant, the number of drivers, that's the number of drivers in the overall market. So it's the same market share. Those same number of drivers are working for a trucking company that employs them, and that's, uh, you know, extracts profits and also manages their work and tells them what to do. Now that firm can set prices across the across those truck drivers for the services they perform. And there's zero antitrust problem, right? And we just take that to be paradigmatic. And this is what I call the firm exemption to antitrust law. Not because I think firms shouldn't be able to set prices, but because I am trying Teoh make visible something that I think is naturalized so that we can more clearly examine these criteria for allocating, ordination writes. Just to add to that example a little bit, I said, Employment threat and under our current regime, under at least like the if you follow the New Deal regime, which, of course, it's not being properly enforced and there's lots of holes and it's extremely problematic. But if you were in theory, those truck drivers would have countervailing coordination rights, they would be permitted to form a union right that would basically engage in coordination now not directly with customers, but with respect to their bargains with the trucking company, right? Yeah, yeah, And so and not only has have those countervailing coordination rights been undermined systematically, as you both know over the last few decades, even for people who are statutorily employees, if you you now have. And then most of those truck drivers that I was talking about in the beginning. And most truck drivers in general are not employees. They're considered independent contractors, and this alone should be mind boggling to us because there's really two points. There's one point is that we have allocated coordination rights to the categories of the firm and to employment. And that was kind of done without you know, that that was done, sort of implicitly, but in certain ways, more visibly in the decades. Right after the Sherman Act, right? And we have denied them, you know, denied coordination, writes toe looser coordination, which eventually includes workers beyond the bounds of employment. But not only is it an issue that the independent contractor truck drivers can be sued under antitrust right for engaging in coordination that intuitively we all as we started this conversation, I think they should be permitted to do if we think about the original purpose of antitrust law. Not only that, not only that, but it should also strike us as weird and worth thinking about that. The firm still gets to set prices across that group of truck drivers who by definition, according toe, like the theory of the firm of Ronald Coase, right, are not inside the firm. If you're an independent contractor, by definition, you're not inside the firm, so they're now setting prices beyond the firm. So whatever justifications exist in law and economics for having this, you know, firm exemption that's been naturalized certainly shouldn't apply there. And then you go further from that. You know that, then we hardly question that at all. Then we go toe things like Franchising subcontracting, where prices are set by lead firms by these more dominant firms on for essentially economic, smaller economic actors in their orbits. Not just independent contractor workers, but also just smaller actors as much. And so we can have that normative conversation. But my point is to just stay like, Hey, let's look at this because certainly at the level of independent contractor firms, we almost don't even see it. And it took me a couple of years to actually see that. Frankly, I just first saw just the truck driver problem because it is so naturalized, right? Like we just like firms that prices. That's what they do. What do you mean that there's coordination within firms. Does that make sense?

spk_1:   36:57
Yeah, absolutely. Um, so I feel like I could go in several directions from here. 11 thing I wanna say it may be, maybe put some of your meta assumptions into my own language and see if, um, they resonate with you and ah, and if you know, if you feel like if we're communicating well here, Yeah. So, um, it's, you know, you've talked about the way that ah, lawn economics appeals to neoclassical economics and in this Bork tradition, right, And it natural eyes is and, um, I think even it toe speak. What's between the lines here is that one of the key ways that it natural eyes is is that it? It imagines something it calls a market and something it calls a firm and something a group that calls employees or or workers, um, it at Kuala economic as somehow prior to law or governance.

spk_2:   38:13
Yeah, that's a great way

spk_1:   38:14
to put it. And that coordination, um, has its own kind of autonomous logics. And that then law comes later and governance later to correct what should be always already functioning. Well, um,

spk_2:   38:36
I think so yeah, so? So I think. No, I think it. If I if I could just come try to elaborate on what you said a helpful way in like, Yes, I think there's two ways I think I think that for So there's two points, right? I think, to take the second thing you said first. I think that is absolutely right. And I think just to me one of the main normative implications of this way of approaching things is that even in the kind of progressive left conversations about like what antitrust and labor law should do for that matter, you know there's this idea of like Okay, well, so there's market power and so we want to try to correct for that we want a balanced market power. But that ignores the that exactly suggest that this market power sort of like arises in a vacuum. If you sort of like allow the market to do whatever it will do without law, and that's totally not the case for any right, like all of that market power relies upon and it's created by law and in particular by these prior legal allocations of coordination rights that are often invisible. And so the point of making them visible is he knows many points is ultimately the point of making them visible is so that we can openly contest them and debate about them instead of not debating about them and just assuming that right. But to put it into this language, the point of doing so is to show how law always construct markets, which is absolutely a legal realist. So I think I'm trying to like maybe further the law. Constructing markets is absolutely a legal realist view. It's absolutely an LP Eve, you and so so I suppose. Um, yes. So I suppose this approach is is really trying to expose how that's happening, Um, and use. That's just go ahead, I'm just gonna say, specifically, just just so that it's not too. It's abstract. That's very specifically, you know, corporate law and employment law and and like the negative spaces of both of those and entitles life I don't have, I mean just happened to be the three things that a leg teach and study, but but I think that those are three areas that construct those like, sort of that sort of what's conventionally considered to be the pre legal intervention space off like what happens inside that, I mean, not that people don't study that. I'm not think people don't study that, but that in that conventional line economics view of the market, those are somehow held constant or taken, given in some way. And and when in fact, they're like, we could totally change those rules we could. We could construct construct firms however we want. They don't certainly don't have to be constructed to maximize shareholder value and to concentrate. There's concentrations of coordination right that happened within firms. That mirrors sort of what I was saying about that the 19th century and that process that happened, and that that allocation of coordination rights is largely a function of both corporate law and employment law and agency lot. Some extent, so all of those things should be up for discussion, and that's that doesn't yet prove that, like what we have is bad. It just shows that that's part of the picture and the ulcer like reverses. The, I guess, flips the script as we like to think on that idea of like lies, intervening to correct, like to protect the powerless from the powerful. No law is creating the powerful in the first place and weaken so, like, if not a corrective, after the fact to say that if we do choose that, you know, to have a more balanced allocation of coordination right than to just have more balance. Ah, more democratic society, including in the economy. That's not like changing, obviously some state of nature, that changing something that law created in the first place.

spk_1:   42:25
Right? And I think two of the things I'd like to highlight what I appreciate so much about the work that you're conception and term coordination writes, Um ah. Performs is especially from, Ah, modern monetary theory. Point of view is nay. It insists that, ah, public legal mediation. I's primary, as we've been saying, but also that the coordination is irreducible to the so called market that that what we call a market, um, we usually think of it in and rather contracted narrow terms. And you're talking about all kinds of social economic coordination for production, for for distribution, for you know,

spk_2:   43:22
my sayings.

spk_1:   43:23
And so it's not about it's not just that the it's not just that law conditions the market. It's that the market isn't what it purports to be. And what political economy actually is is irreducible to this thing called the Market.

spk_2:   43:40
Can you just so I think I follow 80% of that. But what do you mean by is irreducible to

spk_1:   43:47
Ah, Well, what I mean is not visible, Teoh.

spk_2:   43:50
Okay? Is that what

spk_1:   43:52
you're asking? I mean,

spk_2:   43:53
I think that I think so, Yeah. I mean, yeah, I guess I think in this way I've drifted in what I like, I think, Yeah. I mean, I think what you mean maybe if is not reducible to the neo classical conception of the market,

spk_1:   44:07
Maybe this could this it can be a helpful way to I was trying to think about the way we can analogize the conception of law Nikon the neo classical conception with how neoclassicism and classism broadly thinks about money. And it seems to me what you're suggesting, Sandra cta, is that Lonnie con is reliant upon a sort of barter theory of coordination where what you're suggesting is a is a isn't a sort of thoroughly, always already entrenched legal theory of coordination that is constantly and is constantly creating these structures of economic coordination and production in relation. And that is Teoh. Maybe, to put it in Scott's terms that are irreducible to this concept that we call a market, which comes after a sort of state of nature. Would that be? Is that sort of what you're

spk_2:   45:14
saying that before that is the state of Rachel, right? Like in the in the sort of

spk_1:   45:20
sure, Yeah, yeah, yeah, yeah.

spk_2:   45:22
I mean, yeah. So I think I think yes. I mean, I just don't think that there is a market, the state of nature, and I don't think I'm alone and thinking that clearly like there's I mean, like, you guys don't get legal rules. That was like the point of legal realism, right? But it's like it's just I think it's another. And so when we say it that way, it looks very simple and that, but I think this is another way into that right. You're holding some forms of coordination constant at all times. You have to be in order to in order to have a new classical model at all. If you just are right like, and I don't think that if you talk to a smart neoclassical economists about this that they would really deny it. I don't think, although I don't know what they would do but right. I mean, that that is your fundamentally doing on. And then if you if you do question that, they, you know, sort of have to say something like, Well, the firm is a singular It it's just it's just beyond the analysis, right? Like if they're honest, they would say that, right? But the fact is, if you change those categories of coordination, if you change, you know these these things that those models are holding constant or I would say, actually even more accurately are holding constant or are varying without necessarily being back clear about what their varying. You see how those models are then fundamentally dependent upon what are ultimately legal assumption about what forms of coordination are permitted and what arms think of what you're losing By constantly refusing to dance with me, you'd be the idol of France with me and yet you stand there and shake your foolish head dramatically while I wait here so ecstatically you just look and this'll

spk_0:   47:25
Season Issa result. I won't dance down. Let me I won't mess Don't as I won't dance, madam with you my heart won't let my feet do things they should do You know what? You lovely So, uh, you still love what or what you do to me? I like the notion wave that bumps on the show. I'm wondering.

spk_1:   48:01
You know,

spk_2:   48:01
one thing I was

spk_1:   48:02
thinking about when revisiting your work this time is you describe the I then you know, the the Bork era, uh, firm. Um, as this, um uh, pretty severely hierarchical. Ah, relationship. Right. Um and you know, from because I'm not in law, you know that the readings that I've done ah, around political economy in, you know, the neo liberal era. There's so much rhetoric about the, um yes, big multinational. We know that story, but there's so much rhetoric about flexibility, about horizontal ality about working. And I wonder, um, where does that fit? And it feels like it's It feels like there's some friction there, and we're here to the where does like Boracay in discourse and and legal decisions and that that that world meet, you know, like management neoliberal manager.

spk_2:   49:13
Yeah. No, it's a great question. And So let me let me refine what my claim actually is about Bork. It's not that that I'm not really making a claim about what the firm was actually doing in the 1970 at all. I'm not making an empirical, factual claim. I mean, except in a very, very limited instance at all. Bracket. For the moment, what I'm claiming is that board, like, ultimately the argument that goes back to coast, really the argument for the firm exemption antitrust law does assume higher. It fundamentally assumes that it has to, because that right I mean, like, that's the argument for sort of why, sort of we should have. You know why firms are are sometimes more efficient than contracts like that. That's the kind of, like, cozy an idea of why there are firms in the first place. Why there are these little, like command economies in the middle of what's supposed to be like a free market and bore, I think, picks up on that, uh, and ultimately, again, logically, if you excavate, it's not a claim about what firms were actually doing in the 19 seventies. It's a claim about what line I could like the assumptions that line economics in beds and then magnifies because, I mean and so that is a sort of like a premise is that this hierarchy is in in some situations, is more operationally efficient because it saves on, like, transaction costs that you would have if you were contracting for the services out in the market. But I absolutely agree with you that there's all kinds of tension with that assumption. Um, you know, within as you say, like I think one I mean, I will say what I think. The biggest tension is, which is that one sort of one phenomenon that's happened at least accompanying, if not of a direct consequence of like what you're calling near. Liberal management theory is the growth of independent contracting right, and that's been very much sold on grounds of flexibility and whatnot. And I think that there's a couple of points there is that it tends to only be flexible primarily in one direction by denying any countervailing like a big function of it is to deny do workers these countervailing coordination right that they are entitled to under New Deal labor law, which at least would which actually are the things that actually provide flexibility to workers or, you know, some modicum of it right? It actually takes that away. So I think in many ways, that intensifies hierarchy rather than eliminating it, even though it's sold on the basis of eliminating hierarchy. So I think that's one point. But then, secondly, I also think it's contradictory on its own terms, for exactly the reason I was that that's the point of my example with, Like the truck, the truck driver cartel, the truck driver firm with employment and then the truck driver firm with independent contracting is that even if you take out all those issues about how, in fact, you're still doing hierarchy and we know when you have independent contractors and even if you take out all those empirical questions about whether this is actually operationally efficient, it's still true that on your own terms, you've now taken away the justification for having this firm exemption to antitrust law in the first place, right, because I mean the implicit because no one has ever like, necessarily clearly stated this. But that is the implicit assumption is that there that right but like firms are deflect because at that point, firms are not different in any way from the market. Transact on your own terms of the line become person, right? Um, then the market transactions that you're saying should be subject to antitrust prohibitions on coordination because you're just engaging in direct contracts with the people who are performing services that are essential to your business. So even on those terms alone, what are the efficiency now, right, that are supposedly the basis for the firm?

spk_1:   53:21
So I want to take these insights then and let's make some specific for our moment. So what? We're talking about independent contractors in the neo liberal era, and there's perhaps not a more parenting Matic example than uber and uber drivers and perhaps toe say it this way. What, given these tensions should we be doing? And how should we be thinking about uber drivers and perhaps as well, reforming the way we classify and legally classify them in their coordination rights?

spk_2:   54:00
So, in a way, uber drivers are like the trickiest place for me to answer that question because I think there's a bigger But I'll just say why? Because I think there's a strong argument that given the amount of hierarchy and, um, control that actually exists in that relationship, that they should just be employees under sort of traditional labour law. And then that solves the problem. Kind of like under current, under even the current categories of coordination. But so and then they're like, you know, efforts to do that which I support. And so I don't want to take away from those in any way. I think, just extrapolate from that and maybe broaden it. I think that even if that were true, right, like even, you know, even if there was sort of like just enough flexibility on the worker side on the driver's side to escape kind of what the legal definition of employment is, Um, what I would say And this would broaden from uber drivers toe other small players. Um, I basically think that what we should do is reallocate economic coordination rights from that, how they have been where they have been concentrated, which is sort of like in these big, powerful firms that which of which uber is a perfect example, right where uber is enjoys these coordination rights across a market that it, uh, completely controls it sets the prices that uber drivers, uh, charge, even though it claims that uber drivers are independent. You know, independent businesses, but it's setting the prices. There's, you know, what's the right? So it's it's engaging in these novel forms of economic coordination or not at least novel forms of economic coordination, right? Um, and meanwhile, we're just sort of assuming that the uber drivers themselves should not or other other in other platforms as well should not be able to horizontally coordinate. Um, you know, because of antitrust law. And so I would say that antitrust law, having said the point ultimately, is not just sort of like have this intellectual realization, right, but sort of like recognize that we're allocating coordination rights in all of these ways that are naturalized. Once we recognize that, I would propose reallocating them from more powerful actors, toe less powerful ones precisely in line with the original legislative purpose, the dispersed economic coordination rights. And then, of course, you know, people can argue with me about that and, you know, like I'm sure many people will disagree, but that that is, you know, that would be my proposal, and then I do think something that one of I think, Scott you said before when you were talking about, um, some of the commonalities with MMT and the sort of like the recognition of the public nature of this allocation, which I think is really important is that sort of once I don't see that as a carte blanche. So, like what? I think that what happens it's not just that we're allocating economic coordination, writes toe large firms, and then that that's bad. It's that word. One of the problems with doing that and naturalizing it is that we don't recognize that as a public function at all. And so we assume that that coordination that they're engaging in his private I really should have said this before. This is like the kind of the second piece to it, so that so we don't when we nationalise it, Not only don't do we not see it and not debate over it, but we also don't recognize that it's public. And so that's why you have this, like, you know, this like very strong assumption that runs through, you know, sort of most conventional thinking on these topics. Still, which is that the firm is like, Ah, private contract Terrian affair. It's a private arrangement and anything that you do to quote regulate, that is like an intervention into a private arrangement. Once you recognize that the firm is sort of receiving this privilege from the law, which, by the way, I'm not saying we should take away. I think like firms air like Fine, no, But once we recognize that day. But I both think that they're getting a privilege that should have duties and responsibilities. Um, that air con commitment with that andi specifically than this, this really dovetails with sort of the whole revival of kind of thinking of the corporation as a franchise of the state, which definitely overlaps with I think mmt in terms of banking. Um, as I understand it, um uh, but once you recognize that you recognize the fundamentally public nature off economic activity, frankly, right, like and and so you recognize that the public, you know, has a role in all of it. So coming back to your point about the uber drivers, the proposal doesn't end with sort of like, let's reallocate them. And yes, that's very important, because I think that is in line, but sort of like the democratic purposes of potentials law. But I think it's not a carte blanche, just like it's not with firms. I think that there should be criteria and, frankly, public oversight, model of some some forms of public oversight. Four. If we're going to sort of essentially, you know, legalize certain forms of cartels, which I think we should do, because I think that ultimately more democratic and I think you know, will help encourage worker co operatives and just other more democratic forms of coordination. Then also, there should be accountability, you know, and and sort of look up. We should be recognized that there's a public dimension to that, just as we should bring that public dimension into serve like this existing nationalised category of coordination of the firm in the corporation. It seems

spk_1:   59:43
like then, if we're coming at this question from that, a sort of primordial coordination allocation if we want to call it that way, the sense that law is is always in the process of coordinating and producing cartels, and we really have to own that and exert oversight agency over

spk_2:   1:0:04
the process to ensure Sorry didn't trump It's always in the context of constructing, authorizing and not authorizing economic coordination. Whether we called it foretells Cartels corporation whenever we call them France. I think that that's UN employees. Yeah,

spk_1:   1:0:19
yes, right. That's a good way to put it, because you includes the negative and and it seems like perhaps there's attention with sort of some more traditional views of any trust that see size and scale itself as the enemy.

spk_2:   1:0:33
Okay, so here's how I think I want to answer that question. I want it. I want to say that like, I'm the first that project of first recognizing that there's constantly this allocation of coordination writes going on and out by allocation, I mean to capture the positive and the negative, the economic coordination that's being authorized and the economic coordination that's not being authorised, right? So that is an analytical move. And then I think there's this once, like if you have, like, established that, then the next step is okay. Now that we see that this is what's going on and that what the fundamental analytical question in antitrust should be, what are the criteria according to which we should? The loss should allocate coordination, right? So I don't know if I said that straight up prior in those conversations. I think it's important to stay. And that question, I think, transitions from the analytic Tobin normative and the political. That's where I would put the size and scale stuff. I'm not avoiding your question the like. So on the sort of, like, what are the criteria according to which we should allocate? Coordination writes. Well, one option there is size and scale, but I don't see just the reason. And answering this the way I am is I don't see, like the focus on size and scale as like directly in opposition. Do the allocation of coordination rights approach. It's one of the potential criteria that could then arise. Does that make sense? Other people like the board, so that's like one set of agree, like whoever they are, that's 11 set of criteria that's out there. Is that like, you know, bigness is the big thing, and that's what we should be concerned about. Another set of criteria is really focused on operational efficiency, right? Or at least purports to be right, and that's like kind of the Bork Ian's Group right. And, you know, one could say that it's not really because really was interested in. It's just authorizing concentrations of power, but regardless, that's what it purports to be on Ben, you know, another set of considerations could be about. We just want the lowest consumer prices, no matter what another set of criteria would be like. We want to promote economic democracy. And we wanted, like, dispersed, economic coordination, writes. Obviously, I'm sympathetic said that right? So But I see that as being just to be clear about what I see is the difference. That is how I think you know that. So I mean the answer, the normative question, which I'm really not trying to avoid. I just want to situate where I think it fits. You know how I would answer the question of how we should allocate coordination right is that we should do so according to the norms of of greater economic democracy, which I interpret as dispersing rather than concentrating economic coordination rights, and that we should articulate clear rules of fair competition right, like which, which is to some extent, it can be reduced to the dispersing of coordination rights, but not entirely. It's gonna potentially include some additional things Now. I think that people are all over the place in when you know people are obviously not necessarily having the debate and exactly these terms when they're debating on Twitter or wherever, right, but on the focus on size and scale. So I would sit so that I I actually think so. I actually think like size and scale is I'm happy to have that be a criterion, because I think that among many others tend the a proxy for greater democracy, for dispersal of coordination right on and those things. But like there are, and I'm not sure that there's a lot of people would necessarily disagree with this. But I mean, I think that and this is just my view. I'm happy toe have there be other views? But But I think that a there are there are, you know, sort of sectors and economic functions where that's not feasible. And so then there we should and wish it in general, work to promote a democratic allocation of coordination, writes in whatever the arrangement is whether that arrangement itself is large or small, or there's a bunch of them or one of them or whatever. And I think I completely agree with you that there's this sort of, like allocation important. I mean, if or implicitly I think what you're saying that there's this this there's this allocation of coordination rights that's happening within whatever the thing is that you're targeting as big or small, that is as important, I mean, at least as important as as the issue of size and scale itself. Um, so I guess that's how it would start to answer that. And then the other thing that you I feel like was implicit in your kind of your question a little bit and which I am very happy to address is that I don't see this sort of were. That's sort of like what hopefully will become a little bit more of a affirmative or normative picture of anti monopoly. I don't see this as standing outside left and right like that makes no sense to me at all. I see it as fundamentally a left project, you know, maybe there's like right or versions of anti monopoly. That's fine. I don't associate myself with that in any way, and I see this as being allied with other specific left projects, you know, including socialist projects, which which in the 19th century was not so clear where anti monopolise, um, ends and socialism picks up because fundamentally, socialism was also contesting that concentration of coordination, rights and production. And so, um, yeah, so So, to the extent that that's responsive and and and I also don't think you can just focus on, I guess I don't see it as two separate things to focus on public goods versus book. Like if you're you know, because it's like I absolutely think we should be addressing corporate power. Um, and I think part of that is, I guess when you take the step back and you look at this, I think through this allocation of economic coordination, rights framework, part of what you do is you see the public nature of all of it, and that hopefully makes space for public economic coordination itself. I should have said that more explicitly before, so that should make space for sort of like direct public economic coordination where that's appropriate in all kinds of ways. Public provisioning, public price coordination, where appropriate, like all of that should be on the table? Absolutely. Um, and then and then, Conversely, though it's kind of interesting because I, you know, without like getting naming too many names or anything, I've sometimes feel like there's this like, um, unnecessary, which I don't mean to say that one can just dissolve all that if everyone just, like, understood things, that it would dissolve all disagreement. That's not what I'm thing at all, but but I'm saying that like the terms of debate, sometimes around this topic seem just like off to me on both sides because there's sort of, like sometimes seems to be, um, well, let me not characterize both sides. But just it's just to say that conversely to I think what you were kind of asking about, they can also be a little bit of Ah, I think, um, resistance among other left projects tow anti monopoly precisely because it sort of seen, um as something that, like is trying to reinstitute some fictive free market or something. And I just and I just fundamentally don't think that's what anti monopolies about. And obviously that's partly an analytical project and partly his, you know, sort of saying like Hey, there's a historical precedent and a legal precedent reviewing it as something very different. And, you know that, um that is definitely not trying to reinstitute effective free market and that, you know, is friendly with other left traditions. Um, yeah,

spk_1:   1:8:30
yeah. I think that there's a nice way that what you're doing with coordination rights as, ah as a framework And as for a way of setting out the sort of conditions of possibility versus the various specific cases and specific areas of contest station so we could be talking about it reminds me of of MMT rhetoric right where

spk_2:   1:8:58
I can say that it doesn't It doesn't make

spk_1:   1:9:00
any sense. You know, we always laugh when people say, Well, you know, has an anti ever been tried or you're going to go do and

spk_2:   1:9:08
right, right? Like it's the same thing with coordination. Where are you going to try out some coordination, right? Exactly. Exactly. Exactly exactly. There's it like politely yet. No, that's actually a really nice, helpful analogy. Um, not claiming that I know all about MMT. But from from what I understand about it, yeah, exactly. There's sort of this like there's just sort of this like analytical part of the project that's just describing what already going on. And that's saying that whatever criteria you use and whether you're honest, like, sort of are up front about them or not, this is already what's happening. And then recognizing that, Hey, we can shift by like But you know, through that recognition and reexamination exactly. Uh, maybe

spk_1:   1:9:52
we can close it with, um, are are there? Do you think specific lessons in your work for dealing with what we're all living through right now? Blow believe Oh gosh, the virus outbreak and and the economic collapse that's coming with it. I mean, if you give given much thought to that. As you're preparing to take your classes online and do 1000 other things,

spk_2:   1:10:22
I I feel like I wouldn't resume, and I mean, of course, I've I've licks started to have those thoughts, but, um, I mean, I think it's clearly true for your Guiza's work, right? In terms of, um, the move to public provisioning, I think that the only thing that I would say and I would not frame it in those grand terms at all, but is that perhaps in the okay so two things I think perhaps in a less direct way than then is happening for sort of like public spending and public provisioning. There's a way in which all kinds of economic or what had been law and economics orthodoxies in the policy world. I think that that's one silver lighting toe. What's happening is that they're all being kind of like thrown into the light and to some extent discard it without, like, kinda crazy how it started happening, right? Like just almost just like that. S ou know, in kind of a little bit closer to the space that I work in, like direct, um, direct public price coordination is on the table, like, you know, So in that sense, I think it's really an opportunity to read, really, for everyone to really, really clearly see, um, sort of the contingency of these legal rules that we take for granted in economic coordination, and then I don't know. I mean, this is really a really open thing to explore, like would, ah more democratic allocation of coordination rights make us more resilient at times like this. I don't know. I I strongly suspect that the answer is Yes, right. Um, but but yeah, it's been been thinking about that for sure.

spk_1:   1:12:15
Yeah, I just one closing comment. Clearly, we you know, we focus on different, different areas and ah ah, your work is not the same as MMT. But I will say that from our perspective. Um, you know, money, we're interested in money. And what money isn't what money does. And I guess what I would say is that money is not just fiscal policy. It's not just it's not just, ah, congressional appropriation. It's not just monetary policy. Um, money is coordination, writes it, z it it to. To me, the question of money, The question of political economy is you know, the concept of coordination writes to me, kind of sums it up. And Visco policy or monetary policy are themselves

spk_2:   1:13:20
just right Category coordinations. Yeah, yeah, yeah, yeah, that's really neat.

spk_1:   1:13:29
I sort of wanted to bring it back to the sort of allegory that we have been FEMA ties ing throughout This, which is the cave. And it seems like in your answer to what perhaps, you know, preliminarily the Corona virus can teach us is that we're sort of letting the sun illuminate the cave a little bit and sort of throws Throws all these concealed forms in into the light and weaken Perhaps See a bit more agency.

spk_2:   1:13:57
I love a bit more. I love that. I really, really love that. Yeah, yeah, yeah.

spk_1:   1:14:03
Or maybe we're not letting or it's it's happening right there. Happening. Dire nature of the situation is forcing it upon us where we have to reckon with our actual conditions of coordination, ass ability rather than the bullshit ones that have been force fed to us for years and years.

spk_2:   1:14:23
Yes, yes, yes. Love it.

spk_1:   1:14:27
Well, Sanjay Gupta, Thank you so much for coming on. Money on the left.

spk_2:   1:14:31
Thank you so much. I really enjoyed this.