The Borders of Empire

E. Tendayi Achiume –

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The designations “illegal” or “economic” immigrant swiftly mark those to whom they are applied as legitimate targets of national exclusion. Public and academic discourse often treats such immigrants as the consummate political strangers, standing outside the political borders of “we the people” or “we the citizens,” whose status as citizens confers a collectively-held, unilateral right to decide who may cross the political and territorial boundaries of the nation-state. In the conventional account, the right to exclude is understood as an incident of nation-state sovereignty, vital for the independent self-determination of all. Within the liberal paradigm, the law of immigration is an exception to this sovereign right to exclude. Political strangers must fit into one or other exceptional category to be granted admission: high-skilled worker, student, tourist. Even refugees are admitted by way of exception, and those who meet the legal definition of a refugee enjoy the strongest, internationally-recognized legal protections against national exclusion. For so-called economic migrants—those understood to move in search of better jobs, better education or just better lives—legal and ethical entitlements to admission and inclusion remain largely at the discretion of the citizens of the receiving state. And so, if Europe wants to exclude African migrants crossing the Mediterranean, it has the right to do so.

In a recent article, Migration as Decolonization, I challenge the dominant accounts of sovereignty and the right to exclude outlined above, arguing that they ignore the theoretical and ethical salience of the political economy of empire. Very loosely, empire can be understood as the extra-territorial projection of political and economic power by one political community over another, on terms that structurally favor the former. Dominant legal and political theory focus on the borders of discrete, autonomous nation-states, but largely ignore the borders of empire. Migration as Decolonization breaks from this conventional mode to recall the colonial history of contemporary border regimes, and to spotlight the manner in which the logics of empire have long shaped the governance of borders, as the articulation of an absolutist conception of sovereignty in the Chinese Exclusion Cases illustrates. My focus is the legal and ethical implications of persisting neocolonial interconnection and subordination, which I argue mean that former European colonial or First World nations have no right to exclude the citizens of formerly colonized or Third World nations. On this account, Western European nations have no right to exclude Africans.

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The Second Wave of Algorithmic Accountability

Frank Pasquale –

Over the past decade, algorithmic accountability has become an important concern for social scientists, computer scientists, journalists, and lawyers. Exposés have sparked vibrant debates about algorithmic sentencing. Researchers have exposed tech giants showing women ads for lower-paying jobs, discriminating against the aged, deploying deceptive dark patterns to trick consumers into buying things, and manipulating users toward rabbit holes of extremist content. Public-spirited regulators have begun to address algorithmic transparency and online fairness, building on the work of legal scholars who have called for technological due process, platform neutrality, and nondiscrimination principles.

This policy work is just beginning, as experts translate academic research and activist demands into statutes and regulations. Lawmakers are proposing bills requiring basic standards of algorithmic transparency and auditing. We are starting down on a long road toward ensuring that AI-based hiring practices and financial underwriting are not used if they have a disparate impact on historically marginalized communities. And just as this “first wave” of algorithmic accountability research and activism has targeted existing systems, an emerging “second wave” of algorithmic accountability has begun to address more structural concerns. Both waves will be essential to ensure a fairer, and more genuinely emancipatory, political economy of technology.

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The Case for Basic Health

Joseph Fishkin –

healthcare human rightWe seem to be approaching an apotheosis of liberal health care angst, as the irresistible force of the appeal of truly universal health care meets the immovable object of Democrats’ desire to make double-triple-sure not to lose the 2020 election. Replacing our current shambles of a health care system with something much simpler and more efficient and equitable makes all kinds of moral, economic, practical, and fiscal sense. However, as Elizabeth Warren is discovering, when you actually spell out a plan for Medicare for All, you start taking heavy fire fast. (And we’re still in the friendly-fire phase—the cynical and deliberately false attacks in the general election will be worse.)

The argument that Medicare for All will be a political albatross has two parts. First, critics argue, moving to a single-payer system will require substituting visible, salient, and unpopular taxes for the submerged and obscure premium costs middle-class people may not realize they’re paying now. That will be unpopular. Second, critics argue, many of the majority of Americans who now have employer-based coverage fear losing it. That fear, in my view, has two distinct components: (A) a fear of disruption of whatever is going well with your current insurance coverage, and (B) what we might call fear of equality: the fear that however flawed your current insurance may be, it must be a lot better than whatever would be offered in a universal program open to the poor.

This month Elizabeth Warren came out swinging with an answer to the first part. She now has a plan for how to pay for Medicare for All that—unlike Bernie Sanders’ plan—does not involve any tax increases on the middle class. By cleverly insisting that both states and employers keep paying much of what they are already paying (except that the payments will now go to the federal government), she avoids asking the same of the middle class. What she hasn’t done is address the second part—many Americans’ fear of losing their employer-based coverage. And that is actually the bigger problem.

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Re-drawing the Boundaries of the Corporate Person and Democratizing Global Markets

This post comes out of the early career workshop ‘Law and Political Economy in Europe’which took place at the Centre for Socio-Legal Studies, at the University of Oxford, on the 7th of October 2019. For all the posts this series, click here.

Laura Dominique Knöpfel –

PoliticsineuropeThe French corporate law professor Jean-Philippe Robé does not grow tired of reiterating that legal scholars (but also political scientists and economists) constantly conflate the economic organisation of a business – the firm – with its legal organisation – the corporation. But, he states, “(l)’enterprise n’existe pas en tant que telle en droit”, the enterprise, the economic organization of a business, does not exist as such in law. What exists in law is the legal fiction of the corporate person, and not the entire economic organization necessary for the business. His astute observation has gained importance as our study of global capitalism turns to the importance of global value chains (GVCs). The concept of the GVC grasps the entire “life cycle” of a product ranging from its design, production, trade and consumption to its disposal and recycling. In a GVC, a lead corporation has the capacity to steer and govern the economic processes. To do so, it must exert a certain degree of control in the equity-based or contract-based relations that link various corporations into a GVC. The emerging global connections, in the words of anthropologist Anna Tsing, are “made up of uneven and awkward links”. At peripheries of GVCs, global capitalism manifests in “unequal encounters” of the global and the particular. In “fragmented but linked economic niches”, nature is turned into a commodity and humans into labour power.

Harms along GVCs have recently found their way into courts in European home state jurisdictions of lead corporations. However, law’s fabrication of the corporate person as an entity with clearly defined boundaries separating it from the societal environment, including GVCs, has prevented a just attribution of civil liability. The conception of the corporation as a separate corporate person interrupts the linkages the GVC creates between the unequal encounters at corporate frontiers and the lead corporation. Related thereto, is the exclusion of affected local communities from decision-making structures within GVCs.

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When All Social Problems Become Financial Problems

Sarah Quinn –

When it comes to government programs, credit support is often cheaper and less controversial than direct expenditures. Understand this, and you can understand why government officials have an incentive to define all sorts of social problems as financial ones.

Government officials face considerable pressure to promote credit markets. Wall Street firms leverage money, expertise and status to “capture” regulators. It is not only the rich and powerful who make demands on the state for easier access to credit: Farmers in the late 18th century, black activists fighting against redlining in the postwar era, access to credit cards in the 1930s– all have demanded that the governmental help them gain access to credit. When wages are low and welfare state support is stingy, families rely on easy credit to ride out hard times or even meet daily expenses. In the context of neoliberalism, credit access can be a kind of destructive consolation prize for workers with stagnant wages and frayed safety nets, as other scholars have noted.

Demands for easy credit are a crucial part of the story of credit allocation in any political economy, but they do not tell the whole story. That is because lawmakers have their own reasons for turning to credit as tool of statecraft, and those reasons help determine how, when and why government officials move credit and promote financial markets.

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Measuring the Sustainable Corporation

This post comes out of the early career workshop ‘Law and Political Economy in Europe’which took place at the Centre for Socio-Legal Studies, at the University of Oxford, on the 7th of October 2019. For all the posts this series, click here.

Federico Fornasari –

PoliticsineuropeThe impending climate crisis, the widespread social tensions and the burgeoning level of wealth and income inequalities have led to diffused discontent, both in the “global north and south” with the current neoliberal order. The role that the financialized corporation plays into this picture has taken a center stage in this discussion. The keyword of the debate has been “sustainability”: the exact meaning of the term remains fuzzy, whilst the legal strategies to enhance it are debated. One of the fundamental ingredients of sustainability is the disclosure of environmental, social and governance (henceforth, ESG) factors.

From a law and political economy perspective, we might ask: what is the role that corporate law and financial market regulation can play in transitioning to a greener economy and a fairer society? And specifically, can (and how to design) ESG factors disclosure to promote such a transition? Finally, how do specific conceptions of the corporation and its boundaries resurface through the designing of ESG indicators?

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Join LPE at Law & Society 2020

Join LPE at the Law & Society Conference in 2020 as we expand the Law and Political Economy CRN (55)!

There are only two and half days left to apply to the Law and Society Association (LSA) Conference, which will be held in Denver, Colorado, May 28 – May 30, 2020. All paper, panel, and session proposals must be submitted to the LSA by November 20 (11:59pm EST). Please submit your proposal directly to LSA through the portal at https://www.lsadenver2020.org/ As outlined below, we invite you to use our Collaborative Research Network (CRN 55) for Law and Political Economy which will allow us to minimize scheduling conflicts and highlight papers and panels related to Law and Political Economy themes at the conference.

Corinne Blalock (corinne.blalock@yale.edu) and Luke Herrine (luke.herrine@yale.edu) are co-chairing the LSA Conference Committee for the CRN, so please feel free to reach out to them with any questions!

Instructions for Applying to LSA as Part of the Law & Political Economy CRN

1. Background Information on the CRN.  We take a broad view of the scope of Law and Political Economy. All scholars with an interest in law and political economy are welcome to participate in our CRN’s events.  Presenting your paper as part of the CRN’s program generally means a better fit for your paper and a larger audience than leaving it to the larger program committee, and helps foster connections between our participants.

2. How to Join the Law and Political Economy Program for the 2020 Conference.  At the LSA conference in Denver, we hope to continue and expand the conversation with another series of panels and events.  To this end, we have identified several options for CRN members to submit papers and panels:

a. Submit a Complete Panel or Roundtable Proposal.  If you have organized a complete panel or roundtable session, please submit it directly to the LSA and select “CRN 55: Law and Political Economy” from the drop-down menu on the submissions page.  The LSA website details the submission process: https://www.lsadenver2020.org/types-of-submissionsPlease note that selecting CRN 55 is very important because it will help the LSA to schedule our panels in a way that minimizes conflicts. It is wise to include at least 5 paper abstracts in case someone has to cancel before the conference, because sessions with less than 4 papers may be moved to a “roundtable” that may be banished to a terrible room where nobody can hear each other speak.

b. Submit an “Author Meets Reader” Session for a Recent Book.  These sessions can be organized for books with a copyright in 2019 or later and require participation of the author, a chair, and a max of 2 readers.

c. Submit a Paper to be Placed in a Panel on the CRN. If you have a paper to submit, please submit it directly to the LSA and select “CRN 55: Law and Political Economy” from the drop-down menu on the submissions page. LSA will then send all papers under this CRN to us, and we will organize them into panels. The LSA website details the submission process: https://www.lsadenver2020.org/types-of-submissionsPlease note that selecting CRN 55 is very important. If you do not, you will not be included in any LPE panels.

Law and Political Economy in Europe: Transnationalizing the Discourse

The following set of posts comes out of the early career workshop ‘Law and Political Economy in Europe’, which took place at the Centre for Socio-Legal Studies, at the University of Oxford, on the 7th of October 2019. For all the posts this series, click here.

Ioannis Kampourakis –

Politicsineurope.jpgThe normative vision of Law and Political Economy (LPE) and its commitment to a more egalitarian and democratic society is shaped by its fundamental presuppositions. Contrary to a liberal understanding of markets as natural and neutral – that is, as prepolitical and apolitical – LPE builds on the realist project to expose the function performed by the law in the production and distribution of wealth. Approaching the market as a product of legal ordering means not only that juridical relations are constituent of social relations of production, but also that law structures the bargaining power of the groups competing over the distribution of the output of the production process. In this direction, law’s permissions, alongside its prohibitions, have distributive importance – law is never absent from the question of distribution; there is no moment of apolitical, neutral exchange between market participants. The emphasis on law’s constitutive role in the economy entails an implicit assumption that the law can also generate social transformation. If it is legal rules that establish a regime of socio-economic inequality and hierarchy, legal rules could also undo it.

From these starting points, LPE develops as a methodology, rather than as an exclusive set of research topics. Considering the ever-presence of the law in questions of distribution means that every area of legal research and analysis will eventually have underlying distributive and power-structuring effects. While this is more obvious in certain fields than others, all legal structures have an unavoidable political economy aspect, manifested through the binary of prohibition/permission and its social consequences.

Nevertheless, LPE has so far remained framed by the priorities and theoretical inquiries of U.S. legal scholarship. The workshop at the Centre for Socio-Legal Studies, at the University of Oxford aspired to contribute to the transnationalization of the discourse by assessing its relevance for Europe.

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Friday Roundup

The latest in LPE World:

– LPE Blog

An Environmentalism for LPE: Jed Purdy’s This Land is Our Land

Conor Dwyer Reynolds – 

Grand Canyon National Park: Mather Point Pano 03Law and political economy is on a roll. The Law & Political Economy Project is about to host its inaugural conference. The Association for the Promotion of Political Economy and the Law has launched a journal dedicated to LPE scholarship. LPE student organizations at law schools across the country have sprouted. After two years, this blog has generated a critical mass of LPE thinking on subjects from sex work to environmental law. And now, the movement can lay claim to its first book in the latter subject: Jed Purdy’s This Land is Our Land: The Struggle for a New Commonwealth.

This Land explores our many social crises by tracing their relationships to land. In exploring our problems, ourselves, and the earth beneath us, Purdy finds that all of it is inextricably bound together. This Land reveals that the soils of our cities are poisoned with segregation of race and class, our rivers are suffocated by debris strewn by extractive economics, and our air is infused with emissions of our collective consumption. The cause is our economy, “the way we organize our world,” a network of power which distributes resources and capabilities across the planet.

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