High-profile pronatalist supporters of reproductive genetic technologies have thrust these technologies into the national spotlight in the US, reprising questions about the relation between reproductive biotechnologies and eugenics. This article develops the concept of neoliberal eugenics to reframe common understandings of this issue. Neoliberal eugenics refers to the way that neoliberalism facilitates eugenic logic and outcomes through a framework of “choice.” The article draws on scholarship in disability justice and reproductive justice to articulate the limitations of choice before analyzing specific new reproductive genetic technologies and their political economy. The concept of neoliberal eugenics also reveals the flaws in judges’ reasoning in decisions about reproductive technology and eugenics. In short, the article argues that we need a new theory of neoliberal eugenics to understand the burgeoning reproductive biotechnology industry. That theory must consider political economy, especially the rise of financialized capitalism.
Human activity is dramatically reducing global biodiversity. In response, legal decision-makers have deployed regulations aimed at minimizing the impact of the sixth mass extinction event in Earth’s history. However, environmental law has recurrently failed to arrest rates of biodiversity loss. As such, legal scholars have proposed myriad reforms to overhaul the legal protection of biodiversity, ranging from introducing a crime of “ecocide” to granting legal personality to nonhumans. Yet there is a gap in the literature concerning the tendency of these novel proposals to reproduce the limitations of traditional methods. This article addresses that gap by critically reviewing the literature on the ontological tensions between Western-descended legal systems and the science of ecology. It argues that these tensions produce ecological “translation errors” within law that run deeper than is often acknowledged. The article concludes that increased skepticism—but not apathy—toward the legal form may be advantageous in confronting the biodiversity crisis.
The article argues that labor litigation helps to sustain, rather than interrupt, the process of worker exploitation. Using legal claims raised by Uber drivers and Deliveroo riders in the UK as a backdrop, it focuses on undue exploitation—exploitation beyond the limits set by law—as a mechanism that facilitates capital accumulation while hedging against the liability this mode of exploitation imposes. While assuming this outcome is socially undesirable and ideally curtailed by law, the article shows that the legal framework of labor litigation produces two complementary effects that reinforce exploitation through the embeddedness of irresponsibility. First, it disassembles the reciprocity between exploitation and liability, enabling extraordinary profit flows for exploiters. Second, it normalizes residual profits that persist beyond court awards. These effects frame exploitation as a gamble that will generally pay off, all the while embedding its social effects at a level no longer retrievable by law.
This research examines the international climate change regime, critically assessing the extent to which it is underpinned by the growth-oriented, mainstream conceptualization of sustainable development. The study first outlines the shortcomings characterizing the concept of sustainable development, as well as differences which exist between its mainstream and more progressive conceptualizations. Subsequently, it adopts a post-sustainable-development perspective to identify elements within the international climate change regime that reflect and normalize the mainstream conceptualization of sustainable development. Although climate change treaties “shall be based on best available scientific knowledge,” the literature reveals that mainstream sustainable development ontology is built upon shaky assumptions, including the feasibility of decoupling global economic growth from ecological pressures. Nonetheless, the three climate change treaties have increasingly been influenced by the mainstream conceptualization of sustainable development, thereby legitimizing and crystallizing its underlying assumptions. This article advocates for a scientifically grounded reconceptualization of sustainable development, or a complete replacement of the concept with ecologically centered alternatives.
This review essay engages with various conceptualizations of the “capitalist state” and “state capitalism” within four newly published books. It posits that the capitalist state is not a homogeneous category—that the “mature independence of the economic sphere from the political sphere” in liberal capitalism and their “immature independence” in state capitalism render the role of the state in each geography different while producing distinct geopolitical structures within the global economic order. The essay argues that the extraterritorial liberal capitalism of the Anglo-Saxon sphere has historically produced and simultaneously peripheralized state capitalism outside this sphere. State capitalism has, in turn, posed threats to free competition and profitability rates of liberal capitalism, requiring intervention by the hegemonic power arising from liberal capitalism to tackle market distortion. As such, debates around the “return of geopolitics” to international law should be nuanced within the structural tendencies of the two forms of capitalism.
The state as a fiscal actor is commonly perceived to be a unitary entity that interacts with the wider financial system via its core budget operated by the treasury which generates inflows via taxes and outflows through government spending. However, an emerging literature places increasing emphasis on off-balance-sheet fiscal agencies (OBFAs)—financial entities that are separate from the treasury but carry out, on behalf of the state, activities that could also be run via the core budget, and often receive explicit or implicit fiscal backstops. This gives rise to a ‘fiscal ecosystem’ of national and sub-national treasuries and OBFAs that is different in each country, historically specific, and inherently opaque. Fiscal ecosystems are subject to constant transformation that is driven by political, economic, and legal concerns, with ample path dependencies. In this article, we use Germany as a case study to develop a methodology that combines scholarship in law and political economy to categorise and empirically map its contemporary fiscal ecosystem. Throughout its turbulent history, Germany has developed a highly complex web of OBFAs across various layers of its federal system. Their number ranges in the tens of thousands, possibly close to a hundred thousand. We place them in a coordinate system and depict their proximity or distance to the core budget by drawing on their legal status, revenue model, and characteristics of their issued debt (if there is any). Moreover, we carve out the conditions under which OBFAs are subject to Germany’s constitutional debt brake and the EU fiscal rules. If and how OBFAs are affected by debt brakes has been notoriously opaque but is a matter of great political salience since in November 2023 Germany’s constitutional court objected to the financial treatment of special funds (Sondervermögen), which created a budgetary crisis and a spending freeze. [To the German version: OBFA-TRANSFORM Working Paper Nr. 1-DE]
This essay introduces a special issue of the Journal of Law and Political Economy on racial capitalism, climate change, and law. Part 1 of the essay uses the framework of racial capitalism to analyze the root causes, consequences, and responses to the climate emergency. Part 2 examines the relevance of the concept of racial capitalism for legal scholarship related to climate change, drawing upon the work of TWAIL scholars, legal scholars writing from a variety of Marxist perspectives, and Indigenous legal scholars. Climate change is a direct consequence of capitalism’s drive to maximize profits through the unbridled extraction of wealth from humans and nature, aided and abetted at every turn by law. In its voracious demand for cheap labor, cheap raw materials, and cheap waste disposal, capitalism has triggered a planetary emergency and has racialized as inferior the groups targeted for its most rapacious forms of extraction. This extraction includes dispossession, forced and grossly underpaid labor, predatory lending, resource wars, and exposure to the “slow violence” of toxic pollution in the racially segregated sacrifice zones of the fossil fuel economy. Climate change, which imposes disproportionate burdens on the states and people who contributed least to the problem, is also creating new sacrifice zones as parts of the planet become increasingly uninhabitable, triggering mass displacement. Finally, profit-making ventures offering “solutions” to the climate crisis are creating “green sacrifice zones,” where racialized and Indigenous communities are displaced by wind farms, mega-dams, biofuel plantations, forest conservation projects, and the mining of the minerals needed for the green energy transition. Climate-vulnerable states are also being subjected to new rounds of predatory lending in the name of climate finance. The articles published in this special issue apply the theory of racial capitalism to explain how law and legal institutions contribute to racial capitalism’s eco-destructive logic and its mutually constitutive processes of profit-making and race-making. All four articles examine the injuries inflicted by the fossil fuel-based global economy on groups racialized as inferior and on nature. All four articles emphasize how these injustices are being replicated in the transition to a green economy. In addition, the articles show that an alternative path is possible, a path that reckons with the past, addresses root causes, and gives a voice to those who were hitherto suppressed or ignored. We hope that this introductory essay and the articles published in this special issue will inspire law and political economy scholars to write about climate change within their respective areas of expertise to identify and critique the bodies of law (such as economic law) that create legal impunity for the climate crisis. We also hope that this special issue will encourage legal scholars to engage with the theory of racial capitalism.
The way people treat each other and the way they treat their environment are inextricably intertwined. Thus, it is unsurprising that five centuries of colonialism, genocide, slavery, apartheid, and racial discrimination have produced climate change, mass extinction, desertification, deforestation, and polluted air, water, and lands. The West has used international law to institutionalize unaccountability for its racism and environmental harms. This article argues that international law’s inability to stem accelerating ecological decline is attributable to and inseparable from the discipline’s racism, and vice versa. This article explores five legal techniques—comparison, objectification, exploitation, taming, and extermination—that produce racist and environmentally harmful outcomes while cloaked in the legitimacy of the law. The racializing of nature and the naturalizing of race through international law depend on the erasure of subaltern worldviews. But another international law is possible where diverse sustainable legal traditions heretofore silenced make international law on their own terms.
This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court of Justice and the Inter-American Court of Human Rights on climate change provide a normative counterweight to international investment law and potentially a pathway for inclusive and transformative reforms. By foregrounding racial equity, the clean energy transition can avoid replicating the distributive injustices of the fossil fuel era.
Review of Austin Frerick, Barons: Money, Power, and the Corruption of America’s Food Industry
