On Law and Value

On Law and Value

NB: This post is part of a symposium on law and global value chains co-convened with the Institute for Global Law and Policy’s Law and Global Production Working Group.

Amy Cohen–

We are witnessing a new moment in economic development: what Richard Baldwin calls the global value chain (GVC) revolution. As our symposium suggests, critical legal realist scholars are organizing in response. Some have argued that by mapping the relations between law and value chains we may find strategies for resistance, solidarity, and distributive interventions. Others have ventured that “law cannot but function” to serve the interests of a global capitalist elite. This post does not aim to resolve this generative realist tension. Rather it shifts focus to propose that under GVC capitalism, status quo maintenance and resistance also happen through discourses of value—an observation that may offer insights into how actors themselves view the salience of law in specific local struggles.

To comprehend what I mean by “value,” think business school not neoclassical economics. Business strategists distinguish “supply chains” from “value chains.” In supply chains, firms compete on price and pursue low-cost imitations. Managing a supply chain is thus all about “taking out cost and making process efficient.” In value chains, by contrast, firms are supposed to transform undifferentiated commodities into distinctive products through creativity and innovation: “Value chain management is about how to create value; how to coordinate the continuous innovations of creative contributors and how to make that process efficient for the consumer and the contributor.” For firms to compete on value they therefore need consumers who desire products for reasons other than a low price, and they also need the means to capture this consumer surplus such as brand reputation and proprietary process technology.

In our lead post, Bair and Danielsen argue that mainstream GVC scholars mistakenly describe law as simply promoting efficient exchange and value additions as themselves determining the distribution of rents. But I wonder if law’s role in enabling capital accumulation is in fact today more easily demystified. As firms chase value, they purposefully create legal-institutional barriers to entry to capture value against competitors (such as IP). As our legal realist tools therefore perhaps become less revelatory, we may consider how actors directly invoke value to both defend and transgress a development common sense.

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Cracking the Code of Global Value Chains

Cracking the Code of Global Value Chains

NB: This post is part of a symposium on law and global value chains co-convened with the Institute for Global Law and Policy’s Law and Global Production Working Group.

Klaas Eller–

Global Value Chains (GVCs) form a backbone of our global economy that eludes easy characterization. In media or policy reports, corporate brochures or academic publications, the image of choice is generally logistics hubs or factory sites. Yet no single site can capture the inner dynamics of GVCs, which, by definition, emerge from the connection between seemingly unconnected places, norms, actors and social dynamics. The same is true for the common visualization of value chains in linear schematics or organizational charts. Despite their suggestive power, these do not offer a full picture. 

L’essentiel est invisible pour les yeux—especially for lawyers, GVCs offer little stable ground for departure and pose crucial problems of choosing the right lens. As highlighted in the ‘Research Manifesto on the Role of Law in GVCs’, current modes of production have come adrift of legal conceptualization, unmoored from the legal dichotomies and discourses that condition the mind of the modern lawyer. In dealing with a phenomenon that plays with the niches of modernity, legal scholarship constantly runs the risk of finding itself in the same loops, paradigms and path-dependencies that give the illusion of movement without forward progress.

To leave a mark, any inquiry into the role of law in GVCs therefore needs to start with the legal imaginary of global production. What exactly does law conceive of when dealing with GVCs? Are they chains of contracts that can be governed more or less efficiently or a drastic transformation of the legal face of world trade relations? It is this double nature of GVCs, as both an organizational arrangement between firms and as an evolutionary stage in the development of capitalism that is so challenging to account for, especially in law. From an angle of Law & Political Economy, GVCs form a paradigm case for a necessary and constant translation between micro- and macro-level analysis, between local and global, now and then, individual and systemic.

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Global Value Chains as a Legal Concept

Global Value Chains as a Legal Concept

NB: This post is part of a symposium on law and global value chains co-convened with the Institute for Global Law and Policy’s Law and Global Production Working Group.

Jaakko Salminen & Mikko Rajavuori–

In the first blog post of this symposium Dan Danielsen and Jennifer Bair argue that law can open up a window into understanding global political economy, in particular today’s global value chain capitalism. In this post, we complement their analysis and argue that global value chain (GVC) theory, in turn, opens up an avenue for understanding recent legal developments in private governance, public law and private law doctrine./

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The Role of the State in Disrupting the Distribution of Power within GVCs

The Role of the State in Disrupting the Distribution of Power within GVCs

NB: This post is part of a symposium on law and global value chains co-convened with the Institute for Global Law and Policy’s Law and Global Production Working Group.

Ioannis Kampourakis–

The research Manifesto on the role of law in global value chains highlights the centrality of legal regimes for the ‘creation, structure, geography, distributive effects and governance of Global Value Chains’. The recognition of law’s constitutive role in the chain means that law is not simply an institutional backdrop for the operations of the chain but rather endogenous to GVCs. Indeed, transnational corporations that coordinate GVCs are not mere ‘context-takers’ but rather play an important role in producing the rules that govern their own operations. This jurisgenerative capacity of private corporate actors weakens democratic control over the production process and creates the potential for dis-embedding the transnational economy from social values and relations. Yet, the law that is endogenous to GVCs is not impenetrable to attempts to introduce such values within it, as recent “corporate sustaintability laws” imposing transparency requirements have illustrated. The normative project of ‘politicizing’ the endogenous law of GVC capitalism by injecting public values within regimes of private governance has the capacity to limit corporate rationalities of profit-maximization and to generate progressive social reforms across the chain. However, such attempts can only incompletely realize the goal of subjecting GVCs to democratic accountability, while they might reinscribe a neo-colonial dynamic, in which it is up to consumers and investors in the Global North to police the practices of firms exploiting workers and extracting resources from the Global South. Insofar as national and international law remain powerful inscriptions of democratic legitimacy with the capacity to steer collective life beyond market rationalities, any normative undertakings that seek to disrupt the current distribution of power within and across GVCs must also be channeled through them.

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The Role of Law in Global Value Chains: A Window into Law and Global Political Economy

The Role of Law in Global Value Chains: A Window into Law and Global Political Economy

NB: This is the introduction to a symposium on law and global value chains co-convened with the Institute for Global Law and Policy’s Law and Global Production Working Group.

Dan Danielsen and Jennifer Bair–

The ideas that form the basis for this Symposium have emerged through an ongoing discussion among critical legal scholars, sociologists, geographers and political economists that began in 2014 under the auspices of the Institute for Global Law and Policy (IGLP) at Harvard Law School. From diverse disciplinary locations and substantive research interests, we were all engaging with the concept of global value chains (GVCs)—that is, functionally integrated but geographically dispersed networks through which many goods and services are produced. While we agreed that studying GVCs was integral for understanding the nature of the global political economy, our collaboration, which we named the IGLP Law and Global Production Working Group, was inspired by our shared sense that the role of law in the organization, operation and effects of Global Value Chains (GVCs) was little understood and significantly undertheorized in the burgeoning social science and policy literatures on GVCs. Moreover, legal scholars had barely begun to consider the rich body of scholarship tracking GVCs in numerous industries and geographic contexts, nor had they appreciated the degree to which the study of GVCs was shedding empirical and theoretical light on the governance structures and distributional dynamics of the dominant form of doing business in the global economy. (According to UNCTAD’s 2013 World Investment Report, GVCs account for 80% of world trade, while a more recent OECD estimate puts the number at 70%.) Finally, we shared a deep skepticism of what seemed an emerging consensus among mainstream GVC scholars and policymakers that the most promising (and perhaps only) path to development today is via participating in, and ideally moving up the value chain by capturing additional rents through innovation-based upgrading. Our intuition was that diverse legal arrangements were enabling and sustaining the current asymmetrical distributions of resources, rents, and power in GVCs and that developing richer maps of these key legal drivers would make more legible the geographies of value and vulnerability in particular chain configurations, and perhaps suggest new strategies for resistance, solidarity and distributive intervention.

These shared ideas and intuitions led us to the core research question that remains at the heart of our work, even as we explore different aspects of it in diverse sectors and contexts: how does law shape the structure and organization of production and distribution globally, and how do structures of production and distribution in turn reconfigure what law is and how it works in this dynamic process? Our preliminary thoughts and methods for exploring this question were first articulated in a piece entitled “The Role of Law in Global Value Chains: A Research Manifesto” (the “Manifesto”), which was published in the London Review of International Law. In our introductory essay to this Symposium, we share some of the insights from the Manifesto and our ongoing work in order to frame the interventions to follow.

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LPE Approaches to Migration and the Labor Market

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.

Manoj Dias-Abey –

PoliticsineuropePlenty of leftists continue to make the case for limiting migration and enforcing border restrictions. For example, in the UK, union leader and close Jeremy Corbyn ally Len McCluskey maintains that the “influx of people willing to work for less money and put up with a lower standard of living” drives down wages. Even Bernie Sanders has come perilously close to sanctioning a nationalist and protectionist stance when it comes to migration by arguing that “open borders” is a Koch brothers’ conspiracy.

Whether we give credence to these claims will depend on how we conceptualize labor markets. If we accept the fiction of national labor markets, and further assume that these markets are governed by the forces of demand and supply, then perhaps these claims might ring true. However, if we understand that labor markets are created by institutions and social forces, then we might look to factors other than supply to explain the phenomenon of declining wages and deteriorating working conditions. In this short post, my aim is to provide two alternative ways of seeing labor markets, and to trace how the impact of migration might be conceived within each. In setting out the neoclassical economists’ vision of labor markets and contrasting it with conceptualizations by more heterodox economists, I pay particular attention to the role attributed to law in each of the models.

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Labor Law and Economic Governance in the EU

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.

Marco Rocca –

PoliticsineuropeAt the Oxford Workshop, I explored the relationship between the EU economic governance and labor law. In particular, I looked into legal tools of austerity politics and analyzed the role of the Court of Justice of the European Union (CJEU) in cementing this agenda.

During the economic crisis, leadership at the European Central Bank, and the EU Commission resorted to new tools of economic governance across the EU. Their implementation shows how the law can be instrumentalized to actively reduce the ability of trade unions and labor regulations to bring about the decommodification of the factor of production that is labor. This of course builds upon power imbalances in a given situation, in this case, between ‘creditors’ and ‘debtors’, ‘core’ and ‘periphery’ of the European Union.

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Executive Action as Power Building: A Response to Professor Doerfler

Luke Herrine–

Ryan Doerfler has an article over at Jacobin reacting in part to my argument that current law enables the Secretary of Education to cancel as much student debt as she wants by using her enforcement discretion. Professor Doerfler is not so much arguing against my proposal (for which he has some flattering words) as he is using it as an example of a baleful tendency among progressive elites. The tendency is to use legal ingenuity to find ways that a progressive president can “bring about much, if not all, of the change that we need” even if Congress does not cooperate. Professor Doerfler rightly warns that lawyerly craftiness can only get us so far, especially as the judiciary tilts towards becoming little more than an operational arm of those opposed to exactly that change. He also rightly points out that focusing on the ability of a progressive president (ideally a brilliant lawyer) with a team of progressive experts to work around the limits of the current system diverts attention from the task of building the working-class-led coalition necessary to change the system. It replaces power building with deference to experts’ power.

It was somewhat surreal to see my argument used as an example of this tendency, since it is one that I also oppose. I can understand why my argument, taken in isolation, could be seen as an example of such anti-political politics. All the more so when it is not in isolation, but rather written up at the American Prospect alongside other arguments for creative uses of executive action under the rubric of a “Day One Agenda”. But, I must insist, focusing on the ability of a President to cancel student debt (or to do other progressive things) without further congressional action does not require giving up on building the power, whether to put together legislative majorities or to create a true workers’ party or any number of other things. More than that: in an environment in which left power-building institutions are still atrophied, teasing out creative uses of executive power is essential to the latter task. A President dedicated to building power can use the Secretary of Education’s authority to cancel student debt as one tool to do so.

(For what it’s worth: others at Jacobin seem to agree, given their own version of a Day One Agenda, which includes exactly this proposal.)

Moreover, the concreteness of the demand for debt cancellation is useful as an organizing tool. In fact, organizing that uses the demand of student debt cancellation as part of the strategy to build working class power is already ongoing. It is because of this organizing that the idea of a jubilee is on the agenda in the first place. And it is out of this organizing that the idea for using the Secretary of Education’s enforcement discretion to wipe out all (or most) public student loan debt without congressional action took root.

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Monday Roundup

We’ve been so chock full of posts that we haven’t had the time to round them up! Since our last round up, we’ve hosted two symposia:

The LPE in Europe Symposium, with

Ioannis Kampouraksis’s introductory meditation on what might travel the trans-Atlantic wire,

Federico Fornasari’s consideration of the relationship between environmentalism and European corporate law,

and Laura Dominique Knöpfel’s analysis of the way that global value chains have destabilized accountability mechanisms for European corporations.

and

The Care Work Symposium, with

Irene Jor’s account of why and how the National Domestic Worker’s Alliance builds power,

Eileen Boris’s exploration of the relationship between domestic/care work and environmentalism,

Robyn Rodriguez’s contextualization of domestic work and care work in a global racial capitalism framework,

Allison Hoffman’s discussion of the necessity for a policy for long-term care in the United States,

and Noah Zatz’s call for big structural reform of the political economy of care work economy.

 

In addition, we featured posts from:

Sarah Quinn on the way that social problems become financial problems through credit policy,

Joseph Fishkin on the bad arguments against access to medical care as a basic right,

Frank Pasquale on the shift to structural concerns in the “second wave of algorithmic accountability”,

and Tendayi Achiume on reconceptualizing migration as part of the project of decolonization.
In this coming week, we will round out our LPE in Europe symposium. Next week we will begin a new symposium on global value chains. Stay tuned to find out if we will also be able to shimmy in another round up before the new year.

Care Work In & Beyond the Labor Market

Click here to read all posts in our Care Work series.

Noah Zatz –

ndwa

via ssir

Big ideas are flourishing these days—the Green New Deal, Medicare for All, sectoral bargaining, Universal Basic Income, prison abolition. This makes it all the more noteworthy when major policy areas are relatively quiet. One example is child care, despite Elizabeth Warren having started there in her “I have a plan for that” strategy.

What’s lacking is not merely depth of attention but also breadth of imagination. In particular, child care is being viewed almost entirely through the lens of labor market policy. Policy initiatives such as Warren’s focus first on enabling parents to flourish in paid work through access to affordable, quality care. Secondarily, they strive to ensure that the resulting caregiving jobs are themselves well-paid, protected, and respected. These important commitments especially advance the interests of women workers, particularly working class women of color overrepresented on both sides of this needing care/providing care ledger. The dual emphasis undermines both the family wage system’s gendered breadwinner/caretaker division of labor centered on married, middle-class white women and its incorporation of women of color into paid work, including specifically domestic work for white families, that lay outside the structures of labor citizenship designed for white, male breadwinners.

Nonetheless, focusing on universalizing access to better paid work submerges two other longstanding elements of critical feminist analysis of care work. These are particularly pertinent to LPE conversations about the political-economic centrality of markets. First, feminist accounts of social reproduction have long highlighted the extensive, essential, but systematically devalued or outright ignored work performed outside conventional labor markets in families and communities. This includes especially direct care work and housework or other household production, but also broader forms of civic participation often denoted “volunteering.” Second, attaching economic resources to nonmarket social reproductive labor starts to loosen paid work’s iron grip on household income more generally. That grip creates a legitimated dependency on labor markets that undergirds power relations both between labor and capital and, within families, between market “breadwinners” and those more conventionally labelled “dependents.” Valuing care thus could facilitate both reimagining work and decentering markets.

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