The Trouble with Identity and Progressive Origins in Defending Labour Law

Debate about labour regulation is not new. What is new is the urgency with which labour law reform is promoted as an important fix to economic woes. In recent years, calls for reform resound in poor and rich countries alike. The economic crisis in the United States and in Europe has intensified these debates, making labour regulation a prime target for reform. In several US states public sector unions have been under attack, depicted as a privileged class that drains public funds with high wages, cosy benefits, and retirement privileges that no other workers enjoy. Several European countries have introduced austerity measures that target labour regulation and other foundations of the welfare state as sources of economic waste that they can no longer afford. Moreover, it is argued that “rigid” labour regulation hampers job creation, which can be strengthened through a program of labour flexibilisation

The Lessons of TPP and the Future of Labor Chapters in Trade Agreements

The agenda to link labor standards to trade agreements, in the hopes of improving working conditions in developing countries and preventing unfair labor competition for workers in rich countries, reached its culmination in TPP. Beginning with NAFTA and over a span of twenty-five years, labor standards became fully included in trade agreements and their violation subject to trade sanctions as means of enforcement. Thus, proponents of TPP offered it as the “gold standard” of globalization. This chapter argues that the debate about TPP, and the US labor movement’s opposition to it, made clear that this was not a story of success but of disenchantment. Unions in the US criticized TPP’s labor chapter for not going far enough, substantially and procedurally. But they also turned the focus to other chapters of TPP that may be just as or more important to workers in the US than the labor chapter: investment, rules of origin, procurement and currency manipulation. These areas have become the new frontier for labor advocates in trade agreements and they highlight the need to rebalance the treatment of capital and labor. The chapter argues that a significant, though overlooked achievement of TPP, was to encourage several TPP parties to enact domestic labor reforms using labor side agreements and US pressure. More than any ideal labor chapter, it was these domestic reforms that held the most promise for improving working conditions in Vietnam and Mexico. The US withdrawal of TPP has set those reforms back. Opposition to TPP has also made clear that the expected losses from trade in the form of job loss and wage decline will not be made palatable in the absence of effective safety nets and compensatory mechanisms at the domestic level. In fact, international trade reputation will continue to suffer and opposition to it harden without them. To the extent that the debate about TPP was a referendum about liberal globalization as we know it, opposition to TPP in the US has given a resounding no. A pressing question is whether there is an alternative to the nationalist retrenchment embraced by the Trump administration. The revival of TPP without the US, unfortunately, does not seem to chart a different path

Labor Flexibility, Legal Reform and Economic Development

The current global financial crisis has provoked intense criticism of the regulatory framework for financial markets. Financial market flexibility, once considered the key to successful financial institutions and economic growth, has now come under intense scrutiny. In contrast, labor market flexibility is still promoted by scholars and international policymakers as an essential part of the recipe for economic development. This Article argues that the predominant understanding of labor flexibility is misguided and needs to be revised. To illustrate why, the Article undertakes a critical examination of labor flexibility as developed by a leading World Bank project, called “Doing Business.” It argues that the project mischaracterizes countries’ labor regulations by failing to consider the full range of legal sources, surveying only the law in the books, and remaining blind to the realities of lack of enforcement and rampant economic informality. More importantly, the project promotes a binary understanding of flexibility that fails to capture the relational character of legal entitlements. Proposed legal reforms in the direction of “flexibilization” can therefore be both costly and ineffective. As an alternative, this Article develops a framework which, incorporating insights from comparative law and legal theory, proceeds in two steps. First, it undertakes a doctrinal assessment of the respective rights, duties, and privileges of employers and employees in the labor market, and asks whose flexibility is enhanced. Second, it pays attention to the link between the formal and informal economic sectors. Using the examples of the United States and Mexico, the Article illustrates how this new framework can lead to a better sense of the relationship between labor law and a country’s economy, and can be used as a better map for regulatory reforms

Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico

Although liberal trade and development scholars disagree about the merits of the World Trade Organization (WTO), they both assume that WTO legal obligations restrict states’ regulatory autonomy. This article argues for relaxing this shared assumption by showing that, despite the restrictions imposed by international economic law obligations, states retain considerable flexibility to carve out policy autonomy. The article makes three distinct contributions. First, it analyzes how active WTO members can, through litigation and lawyering, influence rule interpretation to advance their interests. Second, the article redefines the concept of “legal capacity” in the WTO context and introduces the term “developmental legal capacity,” which describes how states can use legal tools and institutions not only as a sword to open new markets but also as a shield for heterodox economic policies. Third, the article offers a comparative analysis of two case studies, Brazil and Mexico, and shows that they have pursued different trade and litigation strategies. While subject to the same WTO obligations, these countries have made different use of their policy space according to their own economic objectives. The article concludes that, despite the apparent rigidity of the WTO, countries following a deliberate strategy can expand their regulatory space to advance their own interests

The Lessons of TPP and the Future of Labor Chapters in Trade Agreements

The agenda to link labor standards to trade agreements, in the hopes of improving working conditions in developing countries and preventing unfair labor competition for workers in rich countries, reached its culmination in TPP. Beginning with NAFTA and over a span of twenty-five years, labor standards became fully included in trade agreements and their violation subject to trade sanctions as means of enforcement. Thus, proponents of TPP offered it as the “gold standard” of globalization. This chapter argues that the debate about TPP, and the US labor movement’s opposition to it, made clear that this was not a story of success but of disenchantment. Unions in the US criticized TPP’s labor chapter for not going far enough, substantially and procedurally. But they also turned the focus to other chapters of TPP that may be just as or more important to workers in the US than the labor chapter: investment, rules of origin, procurement and currency manipulation. These areas have become the new frontier for labor advocates in trade agreements and they highlight the need to rebalance the treatment of capital and labor. The chapter argues that a significant, though overlooked achievement of TPP, was to encourage several TPP parties to enact domestic labor reforms using labor side agreements and US pressure. More than any ideal labor chapter, it was these domestic reforms that held the most promise for improving working conditions in Vietnam and Mexico. The US withdrawal of TPP has set those reforms back. Opposition to TPP has also made clear that the expected losses from trade in the form of job loss and wage decline will not be made palatable in the absence of effective safety nets and compensatory mechanisms at the domestic level. In fact, international trade reputation will continue to suffer and opposition to it harden without them. To the extent that the debate about TPP was a referendum about liberal globalization as we know it, opposition to TPP in the US has given a resounding no. A pressing question is whether there is an alternative to the nationalist retrenchment embraced by the Trump administration. The revival of TPP without the US, unfortunately, does not seem to chart a different path

The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice

The study of the relationship between law and economic development goes back at least to the nineteenth century. It is a question that attracted the attention of classical thinkers like Marx and Weber. And there were some early efforts to craft policy in this area; for example, under the Raj, some English Utilitarians tried to put Jeremy Bentham’s ideas about law and economic progress into practice in India. But it was only after World War II that systematic and organized efforts to reform legal systems became part of the practice of international development agencies. Initially, development agencies turned to law as an instrument for state policy aimed at generating economic growth. Starting in the 1980s, interest in the role of law in economic development grew, but it was an interest in law more as a framework for market activity than as an instrument of state power. This book argues that, starting in the mid-1990s, development practitioners approached law in a fundamentally new way – as a correction for market failures and as a constitutive part of “development” itself. As a result, “the rule of law” has become significant not only as a tool of development policy, but as an objective for development policy in its own right. This book charts the history of this growing interest in the legal field, explores the shifting rationales behind development policy initiatives, and explores in detail the newest – and most surprising – of these rationales. To do that, we trace the history of a body of ideas about law and economic development that have been employed not just by academics but also by development practitioners responsible for allocating funds and designing projects. In this introduction, we refer to that body of ideas as law and development doctrine. Although this doctrine has academic roots in economic and legal theory, it is a practical working tool of development agencies

Reimagining Trade Agreements for Workers: Lessons from the USMCA

A backlash against the post-Cold War order of liberal globalization has taken hold in the rich North Atlantic countries. Concerns about wages, working conditions, and economic opportunity are central to the critique of international trade agreements of the last three decades. While labor rights have progressively been included in trade agreements, they have done little to reshape workers’ well-being and workplace conditions. The new United States-Mexico-Canada Agreement (USMCA) may signal a pivot to a new model requiring reforms of domestic labor law and other issues important to workers. However, there is much more to be done to rebalance the power between capital and labor in trade agreements. In addition, for the United States and other rich countries, reform at home may be equally important

Drug Policy Reform in the Americas: A Welcome Challenge to International Law

Drug policy in the American hemisphere is in flux. After decades whereby a prohibitionist regime reigned supreme and proposing alternatives was taboo, several countries have begun to reconsider policy, particularly in the case of marijuana. International law has been instrumental in building the legal and institutional regime of prohibition, and it has remained largely impervious to critiques of its disastrous consequences. Indeed, when it comes to drug law and policy, international law has been part of the problem. Nevertheless, countries in the Americas have begun to adopt innovative strategies that also embrace international obligations. In this essay, I examine the failures of the law and order paradigm behind prohibition. I then analyze legal reforms in the Americas as motivated by three different perspectives: 1) human rights, 2) public health and 3) political economy. Each one offers a powerful challenge to prohibition but relies on different assumptions and offers different transformative potential