Legal scholars who care about how law creates wealth and power cannot afford to disregard the trust. As Katharina Pistor mentions in her recent book, The Code of Capital, the trust stands out as one of Anglo-American law’s “most ingenious modules for coding capital.” Trusts are a longstanding component of the “feudal calculus” that Pistor…
The value of Balkin’s fiduciary framework, I argue, resides not in providing an enforceable legal relationship but providing a framework for privacy legislation. The existing frameworks – the Privacy Principles adopted by the Organization for Economic Co-operation and Development (OECD) in 1980 which rely heavily on notice and consent and the property framework introduced by Louis Brandeis in “The Right To Privacy” (both of which I discuss in this privacy white paper) – have significant limitations. Balkin’s proposed fiduciary framework provides a model for legislation that recognizes that the nature of the relationship between information collectors and aggregators requires imposing additional duties and restrictions to adequately protect consumers, while still enabling commerce and facilitating competition.
The “gig economy” is one place where organizing outside of traditional trade unions is undoubtedly happening in surprising and perhaps unexpected ways. For example, on May 8, 2019, a group of independent app-based drivers in Los Angeles called the LA Rideshare Drivers United organized and launched an unprecedented international picket and work stoppage against Uber…
This is Part II of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds.
The Supreme Court has waged a multi-decade war on private rights of action. It has subverted the rights of consumers, workers, small businesses, and others to hold corporations accountable for wrongdoing through lawsuits. The Federal Arbitration Act (FAA) has been a preferred tool of the Court. Since the 1980s, it has reinvented this modest statute,…
The concept of democracy is critical to the Law and Political Economy approach, yet its precise meaning is not always clear. On the left, “democracy” often functions as shorthand for the opposite of whatever has most recently earned our wrath: be it oligarchy or neoliberalism, marketization or regulatory capture, technocracy or inequality. Even when the…
Khan and Pozen are right to note the fundamental conflict between “information fiduciary” duties and shareholder interests. I only wish to add two further points in service of a radical skepticism towards the information fiduciary concept.
This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here. In 2017, the Federal Reserve Bank of New York published a comic book on the origins of money. The story, called “Once Upon a Dime,” unspools sweetly. Far far away, on the planet Novus, a community of good-willed…
The idea that social movements should be central to progressive agendas is appealing; I respond with two questions that aim push this discussion further. First, it is important to explicitly consider what constitutes a social movement – which voices rise to the top, who sets the agenda, and who garners resources? Second, and relatedly, legal realism teaches us that law exists in the foreground and background to shape our capacity to bargain, strategize, and organize. I wonder how lawyers and legal strategy constitute the redistributive imagination of left organizations?
This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. Quinn Slobodian’s Globalists has rightly received praise and critical attention as a groundbreaking study of the ideologies operative in the cloistered domains of international economic law. Indeed, the book has been…
Anderson’s analysis is insufficiently attentive to the structural realities of the “fissured workplace.”
This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. Last month, the Supreme Court handed down a historic decision in Budha Jam v. International Finance Corporation, ruling that, under the International Organization Immunities Act (IOIA), international organizations are…
This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. We have not yet seen the full story of “law and neoliberalism”, even though a number of legal scholars have written on related subjects from slightly different angles. Duncan…
Three potential strategies the labor movement could adopt to combat private domination at work.
This post opens a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It).
