Business Law, Public Responsibility, and Ethics Commons^™

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Global Governance Organizations: Legitimacy And Authority In Conflict, Jonathan Koppell

Jonathan GS Koppell

Global governance organizations (GGOs) are frequently maligned as both illegitimate and ineffective. With the growing prominence of entities that promulgate global rules governing trade, communications, finance, and transport, these shortcomings take on greater importance. This essay presents a theoretical framework to understand the challenge of legitimacy for GGOs. It argues that GGOs tend to face trade-offs between legitimacy and authority, but that widespread usages of these important terms conflate or confuse them and thus obscure critical issues in GGO politics. Once these terms are more clearly defined, we see more easily that GGOs must sometimes violate democratic norms, sacrificing equality …

Political Control For China’S State-Owned Enterprises: Lessons From America’S Experience With Hybrid Organizations, Jonathan Koppell

Jonathan GS Koppell

China’s reform of state-owned enterprises (SOEs) is intended to liberate the companies from bureaucratic control that hinders their management. Discussions of SOE reform, however, downplay the policy consequences. Can SOEs be “free” to succeed economically while some political control is maintained? Surprisingly, American experience with hybrid organizations—government-created companies that straddle the line between public and private—offers some precedent for managing the balance between political control and enterprise independence. Three strategies are derived for China. First, welfare functions must be stripped from SOEs and replaced by policy objectives compatible with commercial purposes. Second, reducing financial dependence on SOEs will remove a …

Pathologies Of Accountability: Icann And The Challenge Of “Multiple Accountabilities Disorder”, Jonathan Koppell

Jonathan GS Koppell

Accountability is a core concept of public administration, yet disagreement about its meaning is masked by consensus on its importance and desirability. This article proposes a five-part typology of accountability conceptions. Transparency, liability, controllability, responsibility, and responsiveness are defined as distinct dimensions of accountability, providing an improvement on the current state of conceptual fuzziness. The typology provides a vocabulary for the core argument: that conflicting expectations borne of disparate conceptions of accountability undermine organizational effectiveness. This phenomenon—labeled multiple accountabilities disorder— is illustrated with a case study. ICANN, the Internet Corporation for Assigned Names and Numbers, is a nascent organization charged …

Hybrid Organizations And The Alignment Of Interests: The Case Of Fannie Mae And Freddie Mac, Jonathan Koppell

Jonathan GS Koppell

This article explores the political influence of government-sponsored enterprises (GSEs). Using Congress's overhaul of the regulatory infrastructure for Fannie Mae and Freddie Mac as a case study, the article presents two principal findings: (1) The characteristics that distinguish government-sponsored enterprises from traditional government agencies and private companies endow Fannie Mae and Freddie Mac with unique political resources; and (2) the alignment of interest groups around Fannie Mae and Freddie Mac is subject to strategic manipulation by the GSEs. A triangular model of this alignment is proposed and employed to analyze the legislative outcome. The case has implications for students of …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …