Katharine Jackson
https://www.katharinejackson.com/
Kate is Assistant Professor of Law at the University of Cincinnati College of Law (incoming Fall 2023), and began her career as a legal scholar at the University of Dayton School of Law (Assistant Professor, 2021-2023) and as the DeOlazarra Fellow at the Program in Political Philosophy, Policy & Law at the University of Virginia. She received her Ph.D. (with distinction) in political theory at Columbia University in 2019. Kate teaches commercial law, legal theory and democratic theory.
Exploring the intersections of law, politics and economics, Kate's research focuses on how our normative commitments - both legal and political - both intervene in, and are driven by, the economy. She explores not only the autonomy rights, responsibilities and legitimation of big business, but also the government institutions meant to govern them. Kate's scholarship as appeared (or is forthcoming in) Politics & Society, Connecticut Law Review, the William & Mary Bill of Rights Journal, and the First Amendment Law Review.
Kate’s dissertation, Corporate Autonomy: Law, Constitutional Democracy and Big Business, is an interdisciplinary analytical examination of the rights and internal governance of business corporations in constitutional liberal democracies. Drawing from scholarship in political theory, economics and law, she conclude that corporations do not merit legal protections unless they first exhibit some internal democratic credentials.
In contrast to theories of collective moral personhood, she argues that the question of corporate ontology should not determine the kinds of legal rights it can claim. Rather, drawing from Dewey (1926), the law of constitutional liberal democracy should respond to shifting social ontology by defending the principle of equal human worth. After consideration of the literature on group agency (e.g., List and Pettit 2011) and group rights, (e.g., Benhabib 2002; Levy 2014) she argues that corporations are purposive, hierarchical institutions whose legal rights cannot claim to vindicate the liberties of their human members unless “there is freedom [for workers and investors] to say yes or no.” (Habermas, 1994)
Given labor markets characterized by monopsony, financial markets characterized by the “forced capitalism,” (Strine, Jr., 2017) and the control exercised by corporate leadership (Coase, 1937), ascribing corporate associational rights based upon the formal opportunity of market exit (cf., Kukathas, 2007) empowers elites at the expense of equal liberty. Further, although markets may constrain corporate choices, there is meaningful space for democratic decision-making within the corporation.
Her research intervenes in the new but growing literature inspired by controversial U.S. Supreme Court decisions awarding liberty rights to business corporations – rights that challenge the legitimacy of liberal democracy. Much of this literature relies upon analogical thinking, treating the corporation as an individual or as a state conscript. Her dissertation, in contrast, directly acknowledges the corporation’s hybrid public-private credentials by taking advantage of the ontological and normative bridge that law forms between states and markets.
This strategy will allow political theorists to examine additional contemporary economic problems that likewise claim legal provenance – from industry concentration to high finance – that implicate not only distributive justice but human freedom (Anderson, 2017) and democratic sovereignty.
In addition, Kate’s research shows how political theory’s robust literature in group rights, once modified with cutting-edge economic research, can be useful to theorists investigating organized market activity. The theory of corporate rights it presents, furthermore, offers an original justification for workplace democracy that relies neither upon a teleological conception of human autonomy (e.g., Pateman, 1970) nor revolutionary syndicalist aspirations. Finally, its focus on law suggests a new approach for scholarship that increasingly engages the connections between state and market. (E.g., Eich 2018; Tooze 2018; Fraser 2015; Arrighi 1994)
Prior to her academic studies, Kate practiced corporate derivative and securities litigation in the state and federal courts of both Delaware and New York.
Supervisors: Prof. Jean L. Cohen
Kate is Assistant Professor of Law at the University of Cincinnati College of Law (incoming Fall 2023), and began her career as a legal scholar at the University of Dayton School of Law (Assistant Professor, 2021-2023) and as the DeOlazarra Fellow at the Program in Political Philosophy, Policy & Law at the University of Virginia. She received her Ph.D. (with distinction) in political theory at Columbia University in 2019. Kate teaches commercial law, legal theory and democratic theory.
Exploring the intersections of law, politics and economics, Kate's research focuses on how our normative commitments - both legal and political - both intervene in, and are driven by, the economy. She explores not only the autonomy rights, responsibilities and legitimation of big business, but also the government institutions meant to govern them. Kate's scholarship as appeared (or is forthcoming in) Politics & Society, Connecticut Law Review, the William & Mary Bill of Rights Journal, and the First Amendment Law Review.
Kate’s dissertation, Corporate Autonomy: Law, Constitutional Democracy and Big Business, is an interdisciplinary analytical examination of the rights and internal governance of business corporations in constitutional liberal democracies. Drawing from scholarship in political theory, economics and law, she conclude that corporations do not merit legal protections unless they first exhibit some internal democratic credentials.
In contrast to theories of collective moral personhood, she argues that the question of corporate ontology should not determine the kinds of legal rights it can claim. Rather, drawing from Dewey (1926), the law of constitutional liberal democracy should respond to shifting social ontology by defending the principle of equal human worth. After consideration of the literature on group agency (e.g., List and Pettit 2011) and group rights, (e.g., Benhabib 2002; Levy 2014) she argues that corporations are purposive, hierarchical institutions whose legal rights cannot claim to vindicate the liberties of their human members unless “there is freedom [for workers and investors] to say yes or no.” (Habermas, 1994)
Given labor markets characterized by monopsony, financial markets characterized by the “forced capitalism,” (Strine, Jr., 2017) and the control exercised by corporate leadership (Coase, 1937), ascribing corporate associational rights based upon the formal opportunity of market exit (cf., Kukathas, 2007) empowers elites at the expense of equal liberty. Further, although markets may constrain corporate choices, there is meaningful space for democratic decision-making within the corporation.
Her research intervenes in the new but growing literature inspired by controversial U.S. Supreme Court decisions awarding liberty rights to business corporations – rights that challenge the legitimacy of liberal democracy. Much of this literature relies upon analogical thinking, treating the corporation as an individual or as a state conscript. Her dissertation, in contrast, directly acknowledges the corporation’s hybrid public-private credentials by taking advantage of the ontological and normative bridge that law forms between states and markets.
This strategy will allow political theorists to examine additional contemporary economic problems that likewise claim legal provenance – from industry concentration to high finance – that implicate not only distributive justice but human freedom (Anderson, 2017) and democratic sovereignty.
In addition, Kate’s research shows how political theory’s robust literature in group rights, once modified with cutting-edge economic research, can be useful to theorists investigating organized market activity. The theory of corporate rights it presents, furthermore, offers an original justification for workplace democracy that relies neither upon a teleological conception of human autonomy (e.g., Pateman, 1970) nor revolutionary syndicalist aspirations. Finally, its focus on law suggests a new approach for scholarship that increasingly engages the connections between state and market. (E.g., Eich 2018; Tooze 2018; Fraser 2015; Arrighi 1994)
Prior to her academic studies, Kate practiced corporate derivative and securities litigation in the state and federal courts of both Delaware and New York.
Supervisors: Prof. Jean L. Cohen
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Papers by Katharine Jackson
Although the transmission belt model comes in procedural, deliberative, and populist varieties, each occludes the inescapable facts of political intermediation and social conflict. No matter how participatory and rational, governance will involve some officials somewhere making decisions that some citizens will dislike. Even after citizen preferences are massaged by public reason or netted out through compromise, it is impossible to speak of a single, identifiable popular will that is capable of translation into legislative codes and regulations. Collectively, voters do not behave in a way that makes them a plausible principle to a government agent.
Given these empirical problems, the transmission belt model carries several unsavory undemocratic implications. For example, it can lead to a Schmittian repression of social difference, should a demagogic leader claim to speak with the (fictional) voice of the (fictional) people. It may lead to juristocracy, as judges and technocrats claim unique insight into the substantive contents of public reason.
The Article suggests instead that models of democratic political representation serve as better criteria to assess agency legitimacy. Theories of representation recognize and take advantage of the institutional mediation of democratic input. They protect and accommodate social conflict. They recognize, unlike pluralist, deliberative, and transmission belt theories of democracy, that there will always be a gap between ruler and ruled and that there will always be officials making decisions that people may not like.
Drawing from theories of political representation within political science and political theory, the Article argues that administrative agencies themselves can serve as democratic representatives because they (1) incorporate citizen presence in their decision-making while (2) preserving the normative priority of the citizen. The Article then suggests that the oft-maligned trustee model of representation, although often associated with the paternalism of Edmund Burke and Federalist 10, can serve as an appropriate evaluative standard. Agencies’ historical commitment to an inclusive notion of the public good, as well as their dedication to the public interest (qua beneficiary) over the often partial and self-serving commands of elected officials and powerful lobbyists (qua authorizers), make the trustee model an attractive starting point. With some democratic modifications that account for deliberation and debate about the meaning of the public good, the trustee model shows why agency decision-making has strong democratic credentials.
The Article concludes by offering some modifications to the legal doctrine used by courts to assess the legitimacy of agency action, to interpret agencies’ organic statutes, and to shape the presidential removal power. If we demand that administration provide good trustee representation, we will not expect it to mechanically carry out the orders of elected representatives. Rather, we will give them sufficient autonomy to carry out their authorized mandates diligently, loyally, and in good faith.
Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics.
This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making.
By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.
Drafts by Katharine Jackson
The ambiguity of antitrust law should not be lamented. It is an indelible feature of any law that helps diverse democratic citizens realize their equal liberty. Like rights to free speech and free religious exercise, antitrust cannot help but invite politicization precisely because politics often amounts to arguments about what our rights mean and how far their boundaries should run. Just as in any rights-talk, there will strident arguments and appeals to both rationality and authority. There will be haggling, compromise and temporary resolutions as citizens realize, as Kant did, that the state must constrain some rights so that it might protect others. There will be “big cases” that engage the public in an inquiry about what values rights should protect and what collateral damage they might do. Accordingly, when confronting antitrust, corporate leaders seek the freedom to arrange business affairs according to their own lights. Consumers object as they seek choice, variety, and protection from officious treatment. Employees and small business respond by demanding the strength and security afforded by coordinated “countervailing power.” Ours is a diverse country. It enjoys a complex economy riddled with powerful and capable organizations. Each of these organizations presents different risks and opportunities to our autonomy as citizens. The politics of antitrust, the ongoing discussion of rights in the marketplace, will therefore likely never end so long as there is a market in place.
Nevertheless, it is possible to lend more structure to the problem of conflicting rights by spelling out more precisely the rights claims at stake. As Bork correctly posited, “[a]ntitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law – what are its goals? Everything else follows from the answer we give.” (Bork, 1978, 50) Once the contours of these claims are laid bare, it becomes easier to see whether and when, in Berlin’s colorful language, the freedom of the pike might become death for the minnows. It also becomes easier to map out legal and institutional changes that might better vindicate the promise of equal liberty. The first part of this paper will therefore identify the associational freedoms that can be claimed by business organization within a polity committed to equal liberty. It will also excavate the liberties that market competition is expected to both express and protect. These liberties, however, do not come without risk. In particular, the exercise of a corporation’s associational freedoms challenges the autonomy of rights of corporate insiders and outsiders alike. The second part of this paper will highlight these challenges. The third part of the paper will then demonstrate how antitrust law, if understood mechanism that helps balance equal liberty rights, can mitigate the dangers of corporate autonomy while also defending a system of private enterprise. The paper concludes by defending the relative merits of an equal liberty framework and gestures at an appropriate institutional solution.
Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics.
This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making.
By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.
Although the transmission belt model comes in procedural, deliberative, and populist varieties, each occludes the inescapable facts of political intermediation and social conflict. No matter how participatory and rational, governance will involve some officials somewhere making decisions that some citizens will dislike. Even after citizen preferences are massaged by public reason or netted out through compromise, it is impossible to speak of a single, identifiable popular will that is capable of translation into legislative codes and regulations. Collectively, voters do not behave in a way that makes them a plausible principle to a government agent.
Given these empirical problems, the transmission belt model carries several unsavory undemocratic implications. For example, it can lead to a Schmittian repression of social difference, should a demagogic leader claim to speak with the (fictional) voice of the (fictional) people. It may lead to juristocracy, as judges and technocrats claim unique insight into the substantive contents of public reason.
The Article suggests instead that models of democratic political representation serve as better criteria to assess agency legitimacy. Theories of representation recognize and take advantage of the institutional mediation of democratic input. They protect and accommodate social conflict. They recognize, unlike pluralist, deliberative, and transmission belt theories of democracy, that there will always be a gap between ruler and ruled and that there will always be officials making decisions that people may not like.
Drawing from theories of political representation within political science and political theory, the Article argues that administrative agencies themselves can serve as democratic representatives because they (1) incorporate citizen presence in their decision-making while (2) preserving the normative priority of the citizen. The Article then suggests that the oft-maligned trustee model of representation, although often associated with the paternalism of Edmund Burke and Federalist 10, can serve as an appropriate evaluative standard. Agencies’ historical commitment to an inclusive notion of the public good, as well as their dedication to the public interest (qua beneficiary) over the often partial and self-serving commands of elected officials and powerful lobbyists (qua authorizers), make the trustee model an attractive starting point. With some democratic modifications that account for deliberation and debate about the meaning of the public good, the trustee model shows why agency decision-making has strong democratic credentials.
The Article concludes by offering some modifications to the legal doctrine used by courts to assess the legitimacy of agency action, to interpret agencies’ organic statutes, and to shape the presidential removal power. If we demand that administration provide good trustee representation, we will not expect it to mechanically carry out the orders of elected representatives. Rather, we will give them sufficient autonomy to carry out their authorized mandates diligently, loyally, and in good faith.
Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics.
This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making.
By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.
The ambiguity of antitrust law should not be lamented. It is an indelible feature of any law that helps diverse democratic citizens realize their equal liberty. Like rights to free speech and free religious exercise, antitrust cannot help but invite politicization precisely because politics often amounts to arguments about what our rights mean and how far their boundaries should run. Just as in any rights-talk, there will strident arguments and appeals to both rationality and authority. There will be haggling, compromise and temporary resolutions as citizens realize, as Kant did, that the state must constrain some rights so that it might protect others. There will be “big cases” that engage the public in an inquiry about what values rights should protect and what collateral damage they might do. Accordingly, when confronting antitrust, corporate leaders seek the freedom to arrange business affairs according to their own lights. Consumers object as they seek choice, variety, and protection from officious treatment. Employees and small business respond by demanding the strength and security afforded by coordinated “countervailing power.” Ours is a diverse country. It enjoys a complex economy riddled with powerful and capable organizations. Each of these organizations presents different risks and opportunities to our autonomy as citizens. The politics of antitrust, the ongoing discussion of rights in the marketplace, will therefore likely never end so long as there is a market in place.
Nevertheless, it is possible to lend more structure to the problem of conflicting rights by spelling out more precisely the rights claims at stake. As Bork correctly posited, “[a]ntitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law – what are its goals? Everything else follows from the answer we give.” (Bork, 1978, 50) Once the contours of these claims are laid bare, it becomes easier to see whether and when, in Berlin’s colorful language, the freedom of the pike might become death for the minnows. It also becomes easier to map out legal and institutional changes that might better vindicate the promise of equal liberty. The first part of this paper will therefore identify the associational freedoms that can be claimed by business organization within a polity committed to equal liberty. It will also excavate the liberties that market competition is expected to both express and protect. These liberties, however, do not come without risk. In particular, the exercise of a corporation’s associational freedoms challenges the autonomy of rights of corporate insiders and outsiders alike. The second part of this paper will highlight these challenges. The third part of the paper will then demonstrate how antitrust law, if understood mechanism that helps balance equal liberty rights, can mitigate the dangers of corporate autonomy while also defending a system of private enterprise. The paper concludes by defending the relative merits of an equal liberty framework and gestures at an appropriate institutional solution.
Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics.
This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making.
By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.