Monologue or Dialogue in Management Decisions: A Comparison of Mandatory Bargaining Duties in the United States and Sweden

Management and labor are adversaries in both U.S. and Swedish industrial relations. The Swedish model, however, is marked by a continual dialogue between the adversaries with the objective of achieving mutual understanding on a wide range of issues. This dialogue has been fostered by Swedish labor law reforms, particularly the Swedish Act on Co-Determination, along with a comprehensive labor market policy to promote employment. The result of such reasoned dialogue is greater labor support for industrial restructurings and management support for the technological modernization of industry. The American system could better be characterized as a monologue. In the U.S. the legitimacy of union representation is systematically undermined by employer hostility, there are far fewer mandatory subjects of bargaining between labor and management, and there is no active labor market policy to comprehensively promote worker retraining and employment. American labor is in a more vulnerable position in terms of job insecurity in a time of rapid technological change. In this article, the author has translated and analyzed more than sixty cases of the Swedish Labour Court, including the leading cases arising from the Swedish Act on Co-Determination, and contrasted these holdings with the development of a restrictive subjects of bargaining doctrine under U.S. labor law. This article focuses on the legal bargaining duties of both Swedish and American employers. According to the author, the Swedish Act on Co-Determination has found significant acceptance among many employers and is a positive step towards increasing worker influence in management decisions. In contrast, American labor lacks a voice in the decision-making process due to the very restrictive legal development of bargaining duties. U.S. employers are not legally obligated to bargain over many of the most important decisions affecting American workers. As a result, labor and management consistently fail to reach consensus on the rationalization and technological development of industry. The author concludes that dialogue is superior to monologue. A system based on reasoned dialogue is a more advanced technology, while a monologue is sure to result in alienation, fear and narrow protectionism. According to University of Stockholm law professor Ronnie Eklund, Canova\u27s comparative study is an important contribution in the literature of comparative labor law, highlighting both significant similarities and differences in Swedish and American labor law and policy

Banking and Financial Reform at the Crossroads of the Neoliberal Contagion

Timothy Canova, Banking and Financial Reform at the Crossroads of the Neoliberal Contagion, 14 American University International Law Review 1571 (1999). At the time of publication, this article provided the most in-depth critique of capital account liberalization in any U.S. law journal. The article stemmed from a paper presented by the author to the Seventh Annual Conference of the United States-Mexico Law Institute in Santa Fe, New Mexico on October 3, 1998, during the climax of one of the most volatile periods in the global financial markets. The Russian ruble was in free fall, and so was Long-Term Capital Management, a hedge fund that was threatening to bring down its own large creditors. The crisis was averted only by an emergency multi-billion dollar bailout brokered at the offices of the New York Federal Reserve Bank. This article situates that financial volatility within the context of the 1990\u27s global currency contagion that had spread from Mexico and Latin America to East Asia. Canova identified a recurring pattern associated with the liberalization of portfolio capital. The initial dependence on short-term foreign investment requires a restrictive monetary policy and higher interest rates to maintain the inflow. The inflow, however, contributes to overvalued exchange rates that in turn contribute to unsustainable trade and current account deficits. What follows is an inevitable panic sell-off and flight to foreign-denominated assets. The sudden outflow of capital then leads to fiscal austerity and other disciplines imposed as conditions for International Monetary Fund (IMF) assistance. After describing the dynamics of contagion, Canova inventories the range of legal instruments and institutions prematurely pushing capital account liberalization on developing countries. From the IMF Articles of Agreement to IMF loan conditions, from Bilateral Investment Treaties (BITs) to provisions of the North American Free Trade Agreement (NAFTA), Canova demonstrates that the program of capital account liberalization is part of a Wall Street agenda. The symbiotic relationship between regulators and private financial actors raises fundamental constitutional questions about accountability in a representative democracy. The article concludes by proposing several reforms of the international monetary system, including various restrictions on short-term capital flows, the recycling of surpluses through foreign aid flows, and the issuance of global currency in the form of Special Drawing Rights. The analysis synthesizes various methodological approaches, including comparative, historical and institutional approaches: prudential restrictions on portfolio inflows (such as the Chilean ¿encage¿); a global turnover tax on currency transactions (such as the Tobin Tax proposal, named after former Nobel economist, the late James Tobin); reform of the burdens of adjustment (modeled on the Marshall Plan); and use of the dormant Scarce Currency clause in the IMF Articles of Agreement. The article deals with obscure and often technical matters in an easy-to-read conversational style that is accessible to non-experts

The Role of Central Banks in Global Austerity

The literature on austerity, by scholars and policymakers alike, has largely downplayed the important role of central banks in designing and implementing global austerity both before and since the 2008 financial crisis. This article considers how and why the world\u27s leading central banks display an inherent bias toward austerity. As central banks have become increasingly influenced and even captured by large private banks and financial institutions, they have pursued policy agendas that favor those same private interests. The structure of the U.S. Federal Reserve suggests a central bank that has been captured by design and is rife with inherent conflicts of interest in its governance, regulatory, and monetary policy functions. These conflicts are often overlooked because of the myth of central bank independence, which has rested on truncated empirical studies and flawed readings of economic history. Yet, the myth has legitimized the Federal Reserve\u27s policy agenda-particularly beginning in the 1980s when Alan Greenspan became chair of the Federal Reserve-when deregulation, liberalization, and privatization came to serve the private interests of Wall Street banks while creating a boomand- bust bubble economy. The austerity bias of central banks was also revealed in both the academic work and monetary policy approach of Ben Bernanke, who succeeded Greenspan as Federal Reserve chairman just ahead of the 2008 financial collapse. Not only was the Federal Reserve\u27s response to crisis a reflection of the domination of Wall Street interests, it also revealed a complete misreading of the lessons from the Great Depression by Bernanke and other mainstream economists. The result has been a flawed trickle-down response to the financial crisis, as the Federal Reserve and other leading central banks have provided massive subsidies to financial institutions and markets while relegating other sectors of the economy and society to the pains of austerity. A more balanced economic approach will require reform of central bank governance to include representatives of a wider range of social interests in monetary policymaking

The Role of Central Banks in Global Austerity

The literature on austerity, by scholars and policymakers alike, has largely downplayed the important role of central banks in designing and implementing global austerity both before and since the 2008 financial crisis. This article considers how and why the world\u27s leading central banks display an inherent bias toward austerity. As central banks have become increasingly influenced and even captured by large private banks and financial institutions, they have pursued policy agendas that favor those same private interests. The structure of the U.S. Federal Reserve suggests a central bank that has been captured by design and is rife with inherent conflicts of interest in its governance, regulatory, and monetary policy functions. These conflicts are often overlooked because of the myth of central bank independence, which has rested on truncated empirical studies and flawed readings of economic history. Yet, the myth has legitimized the Federal Reserve\u27s policy agenda-particularly beginning in the 1980s when Alan Greenspan became chair of the Federal Reserve-when deregulation, liberalization, and privatization came to serve the private interests of Wall Street banks while creating a boomand- bust bubble economy. The austerity bias of central banks was also revealed in both the academic work and monetary policy approach of Ben Bernanke, who succeeded Greenspan as Federal Reserve chairman just ahead of the 2008 financial collapse. Not only was the Federal Reserve\u27s response to crisis a reflection of the domination of Wall Street interests, it also revealed a complete misreading of the lessons from the Great Depression by Bernanke and other mainstream economists. The result has been a flawed trickle-down response to the financial crisis, as the Federal Reserve and other leading central banks have provided massive subsidies to financial institutions and markets while relegating other sectors of the economy and society to the pains of austerity. A more balanced economic approach will require reform of central bank governance to include representatives of a wider range of social interests in monetary policymaking

Financial Market Failure as a Crisis in the Rule of Law: From Market Fundamentalism to a New Keynesian Regulatory Model

This article considers the financial panic of 2008 in historical context by analyzing the institutional and regulatory factors that contributed to the financial and economic crisis. The move away from a Keynesian regulatory model was a function of larger institutional flaws. The Keynesian regime of command-and-control regulation focused on macroeconomic policy objectives designed to achieve full employment, more equitable distributions of wealth and income, greater transparency in the regulatory process, and reduction in monopoly exploitation of consumers. Central to this regime was a model of central banking that required greater accountability to elected branches of government and the use of selective credit controls to complement general monetary policy measures. As the Federal Reserve (the Fed) became increasingly subject to agency capture by its private financial constituencies, it also became a leading force behind the deregulation of interest rates and lending standards, and the adoption of risk-based capital requirements. These trends, in turn, undermined the transparency of financial institutions and markets, and encouraged the development of an unsustainable, bubble economy. The privatized Federal Reserve System represents a profound rule-of-law failure that is reflected in today’s bailout model which socializes losses and privatizes gains for “too big to fail” financial institutions. This captured Fed represents a significant impediment to effective financial regulation and a proper balance of constitutional authority on monetary and fiscal policymaking between elected and appointed branches and private actors. This article recommends reviving the model of institutional law and Keynesian economics by suggesting a more complete and integrated approach to financial regulation that would keep competition within prescribed limits while allocating credit and capital away from private, speculative activity and into longer-term public investment in physical and social infrastructure. A necessary precondition is reform of the Fed’s institutional structure to safeguard monetary policy and financial regulation from a self-serving financial industry

Financial Liberalization, International Monetary Dis/Order, and the Neoliberal State

This article started as a plenary paper that was presented to the annual International Economic Law conference of the American Society of International Law. The conference itself posed the question of whether the new international economic order was leading to greater peace, stability, fairness and justice. At a time when American post-Cold War triumphalism was perhaps at its zenith, Canova answered with an unequivocal indictment of the global order for failing to deliver peace or justice. The first part of the article critiques the international monetary system, and argues that the primary negative consequence of capital liberalization is the undermining of the public sector. Free portfolio capital flows constitute an undemocratic check on once-sovereign nation-states to pursue progressive social and economic policies. Neoliberal capital goes hand in hand with a neoliberal state with declining capabilities to provide for the public safety and general welfare. Part two of the article analyzes the relationship between central bank autonomy, another institutional pillar of the new world order, and questionable economic assumptions, dubious constitutional foundations, and flawed historical narratives that constrain discussion of alternative models. The final part of the article considers alternative futures and paths of globalization