International Investment Arbitration in Critical Focus

David Schneiderman – 

How might we come to better understand the complex, multilevel, and interdependent world in which we live? This is a particular challenge for international and global legal scholars whose methods of analysis typically are confined to empirically observable legal phenomena in the form of international conventions, treaties, custom, and the like. In this post, I propose bringing international legal studies into conversation with a particular branch of international political economy (IPE), one that brings both an interdisciplinary and a critical edge to the global study of law.

The field of IPE in the English-speaking world has been described as being divided between two competing schools. A U.S. version emphasizes the testing of scientific models via empirical methods, focusing on state behavior as its unit of analysis. Modeled on ‘hard science,’ the U.S. version adopts a state-centric view. A more ambitious British version aims to be more qualitative and normative, emphasizing society, power, and history. It is this latter version that merits attention from legal scholars. It is a mode of analysis that is more interpretive than narrowly empirical, asking what values are promoted and who benefits from particular institutional arrangements. Susan Strange, one of the founders of the British school, has defined the study of IPE as concerning: ‘the social, political and economic arrangements affecting the global systems of production, exchange and distribution and the mix of values reflected therein. Those arrangements are not divinely ordained, nor are they the fortuitous outcome of blind chance. Rather they are the result of human decisions taken in the context of man-made institutions and sets of self-set rules and customs.’

This is a mode of analysis that will be familiar to critical scholars working in many disciplines, but an IPE approach has the advantage of thinking about contemporary global problems on multiple scales. Critical IPE is ontologically inclined, in other words, to theorize law as interacting with actors operating at various levels. It looks to the ‘complex whole,’ Robert Cox writes, rather than to the separate parts.’ Cox, in his own work, helpfully distinguishes between ‘problem solving’ theory and critical theory. The first has as its object the smooth operational working of international institutions. Such approaches serve ‘particular national, sectional or class interests.’ Problem solving is about managing the world, not changing it. Critical theory within IPE, by contrast, does not take institutions or relations of power for granted. It attends instead to how they arise and change. This is a style of understanding the world that is both multidisciplinary and normative.  It is, as Benjamin Cohen puts it, about ‘making the world a better place.’

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Where Is Race in Law and Political Economy?

Angela Harris

In their first post on this blog, Amy, David, and Jed assert that “politics and the economy cannot be separated.” Nevertheless, as they also observe, the separation of the two – as, for example, in the idea that economic activity is determined by laws of supply and demand that lie outside the power of governments to influence, other than through misguided “intervention” – continues to influence law and policy. A similar separation runs through scholarship in several disciplines, including law, between the study of economics and the study of race. As the new field of “law and political economy” grows, one of its tasks must be to trouble this separation as well.

We know the separation most familiarly as the “race or class?” question (note the either/or framing). In the affirmative action debate, it manifests as this: Isn’t a poor white kid from Appalachia more deserving of the last spot in a freshman class than a black doctor’s kid? In academic discussions, here’s how it typically goes: All this stuff about race, or more broadly, all of this “identity politics,” is a distraction from the deeper and more fundamental realities of wealth and poverty, production and exchange. Sometimes race distracts because it is considered to be a matter of “culture,” which is “epiphenomenal” to material relations: It’s about exploitation, stupid! Other times, race is considered a distraction for pragmatic reasons, because its appearance is “divisive,” threatening the solidarity of labor, or the electorate, or progressive communities, or women. At still other times, especially within academia, the separation of race from economics looks something like a polite form of intellectual self-segregation: while all the black kids are sitting in the cafeteria together talking about critical race theory, the law and economics kids are at their own table, drawing supply and demand curves and talking about Pareto optimality. To each their own, and everybody’s happy.

But this story of race and racism as either irrelevant to or reducible to the story of production, exchange, and consumption is wrong. Black studies scholars have been saying so for quite some time. In 1935, W.E.B. Du Bois argued that what turned the tide of the Civil War was a mass withdrawal of slave labor, amounting to a “general strike.” In his view, the North’s victory was neither a race story nor a labor story, but a powerful demonstration of how the two were intertwined. Generations later, Cedric Robinson’s Black Marxism provided a similar attempt to take race seriously within a materialist frame, arguing that the Eurocentric origins of Marxist theory left it unable to adequately account for black history.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading