Author: United States. Congress. House. Committee on Oversight and Government Reform. Subcommittee on TARP, Financial Services, and Bailouts of Public and Private Programs
This issue of The Yale Law Journal (the 8th issue of Volume 121, academic year 2011-2012) features articles and essays by several notable scholars. Principal contributors include leading scholars in their fields. Contributions includes articles by Ian Ayers on opt-out provisions and an economic theory of rule-altering and by James Greiner and Cassandra Pattanayak on randomized evaluation in legal assistance, as well as an essay by Joshua Wright on the dichotomy between antitrust policy and consumer protection. Student work explores discovery law after recent changes in pretrial dismissal standards, a proposal for a fair mandatory arbitration scheme, fair notice provisions, and corporate purposes in light of the Craigslist-eBay litigation. This is the final issue for volume 121, the June 2012 issue.
The Law and Economics approach to law dominates the intellectual discussion of nearly every doctrinal area of law in the United States and its influence is growing steadily throughout Europe, Asia, and South America. Numerous academics and practitioners are working in the field with a flow of uninterrupted scholarship that is unprecedented, as is its influence on the law. Academically every major law school in the United States has a Law and Economics program and the emergence of similar programs on other continents continues to accelerate. Despite its phenomenal growth, the area is also the target of an ongoing critique by lawyers, philosophers, psychologists, social scientists, even economists since the late 1970s. While the critique did not seem to impede the development of the field, it certainly has helped it to become more sophisticated, inclusive, and mature. In this volume some of the leading scholars working in the field, as well as a number of those critical of Law and Economics, discuss the foundational issues from various perspectives: philosophical, moral, epistemological, methodological, psychological, political, legal, and social. The philosophical and methodological assumptions of the economic analysis of law are criticized and defended, alternatives are proposed, old and new applications are discussed. The book is ideal for a main or supplementary textbook in courses and seminars on legal theory, philosophy of law, jurisprudence, and (of course) Law and Economics.
Why are the economic interests and priorities of lower- and middle-class Americans so often ignored by the U.S. Congress, while the economic interests of the wealthiest are prioritized, often resulting in policies favorable to their interests? In Hijacking the Agenda, political scientists Christopher Witko, Jana Morgan, Nathan J. Kelly, and Peter K. Enns examine why Congress privileges the concerns of businesses and the wealthy over those of average Americans. They go beyond demonstrating that such economic bias exists to illuminate precisely how and why economic policy is so often skewed in favor of the rich. The authors analyze over 20 years of floor speeches by several hundred members of Congress to examine the influence of campaign contributions on how the national economic agenda is set in Congress. They find that legislators who received more money from business and professional associations were more likely to discuss the deficit and other upper-class priorities, while those who received more money from unions were more likely to discuss issues important to lower- and middle-class constituents, such as economic inequality and wages. This attention imbalance matters because issues discussed in Congress receive more direct legislative action, such as bill introductions and committee hearings. While unions use campaign contributions to push back against wealthy interests, spending by the wealthy dwarfs that of unions. The authors use case studies analyzing financial regulation and the minimum wage to demonstrate how the financial influence of the wealthy enables them to advance their economic agenda. In each case, the authors examine the balance of structural power, or the power that comes from a person or company’s position in the economy, and kinetic power, the power that comes from the ability to mobilize organizational and financial resources in the policy process. The authors show how big business uses its structural power and resources to effect policy change in Congress, as when the financial industry sought deregulation in the late 1990s, resulting in the passage of a bill eviscerating New Deal financial regulations. Likewise, when business interests want to preserve the policy status quo, it uses its power to keep issues off of the agenda, as when inflation eats into the minimum wage and its declining purchasing power leaves low-wage workers in poverty. Although groups representing lower- and middle-class interests, particularly unions, can use their resources to shape policy responses if conditions are right, they lack structural power and suffer significant resource disadvantages. As a result, wealthy interests have the upper hand in shaping the policy process, simply due to their pivotal position in the economy and the resulting perception that policies beneficial to business are beneficial for everyone. Hijacking the Agenda is an illuminating account of the way economic power operates through the congressional agenda and policy process to privilege the interests of the wealthy and marks a major step forward in our understanding of the politics of inequality.