This Article is the first in a series of studies of the globalization of illicit markets. My theses are as follows: First, the increase in international trade in illicit products and services parallels the growth in international trade more generally that accompanies the phenomenon of globalization. Second, at the same time that most international trade law has moved toward a posture of liberalization, there has been a movement to strengthen the prohibition and punishment of trade in illicit transactions. Third, the mechanisms that have developed to regulate this prohibition constitute a significant development in the international legal order…
]]>Over the past decade, the federal government has increasingly taken steps to lift barriers to trade and financial flows into and out of the United States. This liberalization of U.S. economic barriers has been mirrored by similar efforts of governments around the world. These steps, together with gains in technology, have ushered in an era of “globalization.”‘ The global liberalization of economic flows, according to classical economic theory, should maximize the efficient allocation of world resources and generate benefits for all. Even if globalization brings increased aggregate gains, however, it is not clear that the distribution of those gains accords with social justice. Without intervention, globalization may instead lead to increased socioeconomic inequality and economic volatility.
]]>In his 1993 Nobel Laureate lecture, the leading theorist of institutional economics, Douglass North, emphasized the relevance of his life’s work for economic development policy…
]]>This is an Introduction to a Special Issue of the American Journal of Comparative Law, edited by Janet Halley. The central theme of the Special Issue is “family law exceptionalism”: the myriad ways in which the family and its law are deemed, either descriptively or normatively, to be special. We argue that the nineteenth century emergence of Family Law as a distinct legal topic, influenced inter alia by Friedrich Carl von Savigny and carried around the world as part of the influence of German legal thought, was an intrinsic element of the rise of contract as the law of the market. Our comparative approach to this phenomenon in this volume is twofold. First, we think that colonial expansion brought with it the idea of the family/market, family-law/contract-law distinction, and that legal orders around the world emerged in which this distinction played some important role. This is the Genealogical Project, and it occupies essays collected here by Duncan Kennedy, Isabel Sierra Jaramillo, Philomila Tsoukala, and Lama Abu Odeh. Second, we suspend Family Law Exceptionalism in order to study the Economic Family. Historically and in the present context of globalized labor, we emphasize international, regional, and local law as transplanted, intersecting or nested background rule systems in which households form and provide social security, consume, and produce material and other goods. Tsoukala, Abu Odeh, Hila Shamir, Chantal Thomas, and Kerry Rittich provide essays exemplifying this research. The Special Issue begins with an essay by Fernanda Nicola mapping the comparative family law tradition and situating this volume on its critical branch.
]]>One of the most significant events in the field of development in recent years has been the effort to incorporate social concerns into the mainstream agenda of market reform and economic development…
]]>While the family as an economic institution has traditionally been sidelined in development policy, development institutions like the World Bank now promote a range of legal and policy reforms that touch on the family and the household. This Article considers how interventions designed to expand formal markets and to encourage
participation in markets and investments in human capital might provoke change within the family and the household. Although they aim to increase welfare by increasing measurable economic growth, such interventions have both constitutive effects on the household itself and significant effects on the bargaining power of household members both at home and at work, effects that can be illuminated by attention to the legal reforms themselves.
Taking as its starting point the family as an economic entity, this Article taxonomizes the wide range of laws that effectively regulates the family and the household, and highlights properties of legal rules, such as their impact on the bargaining power of different social groups, that tend to be ignored or suppressed in regulatory and governance debates in the field of development. Aided by that expanded taxonomy, it investigates the impact on the family and the household of legal and policy initiatives in four areas: gender equality, social protection through conditional cash transfers, labor market formalization, and land titling. Tracing the effects of regulatory interventions across the market/household divide or continuum indicates how such reforms may induce households to adapt in ways that undermine as well as further welfare and equality objectives. But attention to the continual interactions between the household and the market not yet in view within general measurements and analyses of the economy, also indicate how and where they might sometimes undermine economic growth objectives as well.
]]>In recent years, increasing interest has arisen as to the potential applications for Critical Race Theory (“CRT”) in international legal critique. This Essay raises the question in methodological form.
]]>It is no secret to anyone in the field of labor law that we are at a critical juncture on the question of workplace governance, and that this is a moment of deep transformation with respect to both the context of work and the norms which govern work…
]]>This Essay links a particular legal case study with a broader set of questions about the “family” in a global political and economic context. Part I clarifies the analytic links between the household, the market, and globalization. By studying Egypt, the Essay focuses on one part of this global sociolegal continuum and draws out the special significance of transnational background rules and conditions for the “developmental state.” Part II presents the legal framework affecting labor conditions of sub-Saharan African asylum-seekers who are migrant domestic workers in Egypt, and particularly the legal framework that affects their ability to bargain in securing livelihood strategies. Domestic and international law fail to provide adequate assistance and support for these efforts, but they inevitably construct the environments for them: “foreground” rules of employment and contract law (but not family law) affect the bargaining environment for migrant domestic workers; “background” rules, most importantly those related to sovereignty and immigration, also crucially influence the bargaining environment. Part III returns to the conceptual landscape, connecting this study with current quandaries in global governance studies and critical understandings of the “economic family.”
]]>Focusing on the development and market reform agendas of global economic institutions, this paper explores how the transformation of international governance norms, private law rules and business regulation has affected social objectives, especially those relating to redistributive justice. The author argues that social policy in the global arena has effectively been collapsed into labour market policy, and posits that rising inequality within and between states may be linked to a widely accepted macroeconomic program which gives market forces an enhanced role in social and economic ordering. Characteristic of that program is the OECD’s highly influential Jobs Strategy, which in both its 1994 and 2006 versions advocates the pursuit of economic growth by increasing labour market flexibility curbing employment protections, decentralizing collective bargaining, and ensuuing that social expenditures and social insurance are designed to “make work pay.” Recent OECD findings, however cast doubt on the basic premise that policies of labour market flexibility generate either improved economic growth or better employment outcomes. In addition, the Jobs Strategy fails to address three major concerns around work in the new economy: unemployment and under-employment; the rise of precarious work; and the labour market consequences of unpaid work, most of which continue to be experienced by women. Given the concurrent emphasis on labour market flexibility, the emerging concept of “core labour rights” is unlikely, on its own, to provide an adequate foundation for a reconstructed system of worker protections. In the absence of evidence showing better labour market outcomes in those countries which have implemented the Job Strategy and given the indications that labour market institutions may also contribute to better economic outcomes, there appears to be no compelling reason to adopt policies that, ultimately, reverse the decommodification of labour and recontractualize the employment relationship.
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