Law Commons^™

Law School News: Omshehe Wins Top National Prize With Securities Regulation Article 11-4-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Bristol And Newport And The Transatlantic Slave Trade 09-01-2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

For Every Rat Killed, Etienne C. Toussaint

Faculty Publications

If my grandmother had survived the sickness of old age and were alive to witness the economic injustices wrought by capitalist culture, what would she think? If my grandmother were alive to observe familiar technologies for exterminating household pests—surveil-lance, capture, imprisonment, disposal—being increasingly aimed toward low-income Black communities, what would she believe? If my grandmother were alive to discover, in the palm of her hands, a digital platform for spreading information (and misinformation) to the masses and painting new futures into the minds of lawmakers and politicians, what would she say?

Studies have shown that low-income individuals are more likely …

Legal Coding Beyond Capital?, Katharina Pistor

Faculty Scholarship

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law. Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion. Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

Social Services And Mutual Aid In Times Of Covid-19 And Beyond: A Brief Critique, Dana Neacsu

Law Faculty Publications

May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association …

Principles For Policymakers, James R. Hines Jr.

Book Chapters

Multinational corporations are global goliaths, but they have not conquered the world, nor are they responsible for every economic ill, as is sometimes alleged. These firms contribute to global prosperity by improving productivity and efficiency, innovating, and creating jobs-mostly good jobs-in both home and host countries. Governments lavish attention on multinational corporations, seeking the good that accompanies their investments even as policymakers worry about the influence multinational firms have on the local environment, social conditions, and politics. In this regard, governments face the tradeoffs that commonly afflict economic policymaking. Efforts to control the actions of multinational firms typically come at …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

Multinational Activity In The Modern World, James R. Hines Jr., Fritz C. Foley, Raymond J. Malatoni Jr., David Wessel

Book Chapters

Multinational corporations are the global goliaths of modern times. These entities collectively are responsible for large portions of world production, employment, investment, international trade, research, and innovation. Although their economic impact is most pronounced in high-income countries, where their activities have been concentrated historically, their reach increasingly extends to every corner of the world. Decisions made by these firms affect not only those who work for them, buy from them, do business with them, and compete with them, but also communities and countries in which they are located. As a result, their operations and activities are subjects of considerable interest …

A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg

Faculty Scholarship

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …

Theorizing Beyond "The Code Of Capital": A Reply, Katharina Pistor

Faculty Scholarship

In this reply, I respond to and elaborate on the critique of my book “The Code of Capital” published in this special issue. The common thread of the critiques is the call for more theorizing of the themes the book addresses, especially the conception of state power, of resources, social relations and questions of knowledge and access to knowledge about the law, or epistemology. This reply is only a first response to issues that do require further analysis and I am hoping to follow suit on at least some of them in the near future.

Ideology And Institutions In The Evolution Of Capital, Katharina Pistor

Faculty Scholarship

In Capital and Ideology, Thomas Piketty poses the intriguing thesis that ideology, or ideas about how society should be governed, is a powerful determinant for how society will be governed-as long as we take advantage of historical switch points. In this review essay I challenge this thesis by pointing out that many powerful ideas have run aground because of countervailing institutional arrangements. Oftentimes, they are leftovers from earlier times that precede the change and are now strategically employed for reconstituting private wealth. Clearly, ideology and institutions are deeply intertwined. I credit Piketty for putting ideology on the map of …

A Letter To The United States Government On Wealth And Income Inequality, Matthieu Maier

English Department: Research for Change - Wicked Problems in Our World

The United States of America is the world’s hotspot when it comes to income and wealth inequality. The wealthiest Americans are accumulating more and more wealth everyday while most Americans, who fall somewhere around middle-class, remain struggling and stagnant. The United States’ unchecked and deregulated system of capitalism is the root cause of our country’s inequities along with our government’s refusal to set aside self-interests and biases in order to combat these issues. From the inequality caused by rouged American systems larger issues are created that lead to complications in health, wages, standard of living, and race relations within our …

Dead Men At War: The Ideological Battle Between Karl Marx And Adam Smith, Matthew Beals

Senior Honors Theses

This thesis’s foremost purpose is to illustrate the nature of the intellectual battle waged between Karl Marx and Adam Smith. A detailed summary of each philosopher’s respective ideology is given, as well as an explanation for how such ideologies arose. Furthermore, an illustration of how the writings of Marx and Smith impacted historical events is provided. Ultimately, this thesis seeks to explain the core differences between Marxism and the free market system, and why such differences exhibit a great need for the preservation of liberty.

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme with …

Coty, Amazon, And The Future Of Vertical Restraints: Evolving Distribution Norms On Both Atlantic Shores, Chris Sagers

Law Faculty Articles and Essays

No abstract provided.

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

Corporate Governance As Privately-Ordered Public Policy: A Proposal, Lynn A. Stout, Sergio Alberto Gramitto Ricci

Faculty Works

In this Article, we show how our society can use corporate governance shifts to address, if not entirely resolve, a number of currently pressing social and economic problems. These problems include: rising income inequality; demographic disparities in wealth and equity ownership; increasing poverty and income insecurity; a need for greater innovation and investment in solving problems like disease and climate change; the “externalization” of many costs of corporate activity onto third parties such as customers, employees, creditors, and the broader society; the corrosive influence of corporate money in politics; and discontent and loss of trust in the capitalist system among …

Inequality Rediscovered, David Singh Grewal, Jedediah S. Purdy

Faculty Scholarship

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last …

The Pet Keeping Industry In The American City, Irus Braverman

Journal Articles

Two years ago, my now nine-year-old daughter decided that she, too, wants in on the American dream. A family without a dog is incomplete, so the dominant narrative around us seems to dictate – and that narrative was readily picked up by my daughter and, subsequently, by her younger sister as well. The pressure is now fully on for us to “adopt” a dog who would fill our days with laughter and fun. A dog who would make us belong. Despite my initial urge to satisfy my daughters’ passionate desire, I cannot help but to contemplate the broader role of …

Capitalism And Risk: Concepts, Consequences, And Ideologies, Edward A. Purcell

Articles & Chapters

Politically charged claims about both "capitalism" and "risk" became increasingly insistent in the late twentieth century. The end of the post-World War II boom in the 1970s and the subsequent breakup of the Soviet Union inspired fervent new commitments to capitalist ideas and institutions. At the same time structural changes in the American economy and expanded industrial development across the globe generated sharpening anxieties about the risks that those changes entailed. One result was an outpouring of roseate claims about capitalism and its ability to control those risks, including the use of new techniques of "risk management" to tame financial …

Capitalism, Regulation Theory And Australian Labour Law: Towards A New Theoretical Model, Brett Heino

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article employs the methodology of the Parisian regulation approach to periodise Australian capitalism into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development that have characterised Australian political economy since the post-Second World War era: …

Andrew B. Arnold's Fueling The Gilded Age: Railroads, Miners, And Disorder In Pennsylvania Coal Country, Laura Phillips Sawyer

Scholarly Works

Andrew Arnold’s Fueling the Gilded Age explores the struggles for managerial control and economic power that erupted among coal miners, coal operators, and railroad executives in central Pennsylvania between 1872 and 1902. Rather than presenting an unassailable triumph of the railroads’ interests over labor, Arnold argues that the “coal industry defied order” (p. 3) and laborers exhibited “unexpected agency ” (p. 4, emphasis in original) by thwarting the plans of railroad executives to impose managerial capitalism from the top down. Instead, wage earners “refused to accept their designated fate as commodities” (p. 222) and thereby exerted influence on the institutional …

Legal Institutionalism: Capitalism And The Constitutive Role Of Law, Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang, Katharina Pistor

Faculty Scholarship

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part …

Capital's Offense: Law's Entrenchment Of Inequality, Frank A. Pasquale

Faculty Scholarship

Reviewing Thomas Piketty, Capital in the Twenty-First Century (Harvard University Press, 2014)

Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy.

The university …

Healthy, Wealthy, And Wise: How Corporate Power Shaped The Affordable Care Act, Kevin Young, Michael Schwartz

History Department Faculty Publication Series

No abstract provided.

Symbolic Corporate Governance Politics, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

How are we to understand the persistent gap between rhetoric and reality that characterizes so much of corporate governance politics? In this Article, we show that the rhetoric around a variety of high profile corporate governance controversies (including shareholder proposals asking boards to redeem poison pills, proxy access, majority voting in director elections, and shareholder proposals to remove supermajority voting requirements) cannot be justified by the material interests at stake. At the same time, shareholder activists are oddly reluctant to pursue issues that may have a more material impact, such as anti-pill charter provisions or mandatory bylaw amendments. We consider …

Virtue, Vice, And The Globalization Of World Economies, Stephen Preacher

Faculty Publications and Presentations

This study postulates that the recent world financial crisis, symptomatically manifested in the financial markets, is more fundamentally the result of a systemic disregard for moral constraints. This has occurred at macroeconomic levels within the industrialized nations and has pervaded the global economy. Moral relativism has become the dominant ethical system in society and government, and has undermined the virtuous ideals and self-restraint that foster the benefits of capitalism. Coupled with advances in technology and globalization, the effect of vices such as avarice, irresponsibility, excessive risk tolerance and criminal activities have been exacerbated. Government manipulation and intervention has further served …

Shadow Works And Shadow Markets: How Privatization Of Welfare Services Produces An Alternative Market, Bridgette Baldwin

Faculty Scholarship

The Author attempts to fuse Ivan Illich’s misplaced ideas of gender roles with how privatization of welfare services has legitimized a shadow economy and work through mandated community service jobs. The Article provides a historical perspective of how social services were handled, leading to the current cost/benefit legacy of welfare privatization utilized by the Wisconsin Works program (W-2). Wisconsin’s program requires women recipients to engage in volunteer work, creating a subsidized labor force for private agencies based on the presumption that work, even meaningless and menial tasks, establishes job-readiness for women on welfare. The Author suggests that we need to …

Illich, Education, And The Wire, Erin E. Buzuvis

Faculty Scholarship

This Article focuses on two texts—first, Illich’s 1971 "Deschooling Society," which calls for abolishing institutionalized education in favor of decentralized, personalized relationships that promote intentional learning; and second, The Wire’s fourth season, which is particularly focused on the exercise in futility that is the Baltimore public school system. Read together, these texts explore the problem of institutionalized education and the solution Illich proposes of intentional learning communities. But while both texts help us understand the shortfalls of institutionalized education, neither is particularly prescriptive when it comes to undoing the current state of affairs and weaning our society off of institutions, …