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Weekly Roundup: December 1, 2023


At the Blog

On Monday, Raúl Carrillo offered an LPE perspective on the recent conviction of Sam Bankman-Fried. Despite how the Assistant U.S. Attorney cast it in his closing remarks, this case was not merely about lies, stealing, and greed; rather, it was a case about the nexus between law and technology, about a financial regulatory system stuck in older ways of thinking and increasingly incapable of preventing illicit finance in the platform economy. As Carrillo writes, “The Treasury has explicit, expansive authority to surveil the U.S. financial system for illicit flows, which it has used to create a criminal dragnet. However, instead of focusing on financial institutions, the Treasury deputizes financial institutions to monitor clients and customers and report suspicious activity to the Financial Crimes Enforcement Network (FinCEN). FinCEN then shares these reports with over 165 federal, state, and local agencies and private sector partners (chiefly Palantir). However, as the legal regime immunizes financial institutions from civil liability for most illicit flows so long as they file the appropriate reports, it incentivizes (often automated) mass filing of questionable utility.” The appropriate remedy, he argues, will require a systemic shift from reactive enforcement and rulemaking to proactive planning, including direct, day-to-day supervision, on-site examination, auditing, and standard-setting.

On Wednesday, Fanna Gamal continued our symposium on Non-Reformist Reforms, explaining how the tradition of Critical Race Theory can help orient us to a horizon beyond legal reform. Revisiting classic texts by Derrick Bell, Kimberle Crenshaw, and Mari Matsuda, she explains that CRT was centrally concerned with the dangers inherent to legal reform, which it saw as fundamentally unpredictable, contested, and perilous—as, in Crenshaw’s words, “carrying both the moral force of the movement as well as the stability of the institutions and interests which the movement opposed.” Drawing on this insight, she writes, allows us to see that “to search for some self-evident, coherent quality that defines a reform as a non-reformist reform is, perhaps, beside the point. Non-reformist reforms are created through a practice of close engagement with political and economic conditions, where we exercise our multiple consciousness to steward changes toward something that looks to us like justice.”

In LPE Land

Cool job alert: The Law and Political Economy Project seeks to hire a 2024-2025 Law & Organizing Fellow to support the mission of the LPE Project’s Law and Organizing Initiative to create space for organizing as a practice and theory of change in the legal academy.

The forthcoming Issue of the Boston Review on “Reclaiming Freedom” looks like a must-read, with a lead essay by Aziz Rana, and responses by Jefferson Cowie, Adom Getachew, Lea Ypi, Nancy Hirschmann, and Olúfẹ́mi O. Táíwò and Philippe Van Parijs.

In the Nation, Vicent Bevins reviews Sebastian Edwards’ The Chile Project: The Story of the Chicago Boys and the Downfall of Neoliberalism, and argues that the outsized focus on Chile in our understanding of neoliberalism can be distorting. As he writes, “If neoliberalism’s implementation had depended on enthusiastic ideologues infiltrating national governments and gaining the ears of autocrats, it would not have conquered the world.”

In the Atlantic, Noah Rosenblum reflects on the dangers and absurdity of Securities and Exchange Commission v. Jarkesy. “The Fifth Circuit’s misuse of history,” he writes, “is symptomatic of much of the originalism practiced by judges affiliated with the conservative Federalist Society, who now hold immense power across the federal judiciary.”