Self Help

The Code of Capital - Pistor, Katharina;

Author Photo

Matheus Puppe

· 51 min read



Here is a summary of the key points of The Code of Capital by Katharina Pistor:

  • The book argues that capital is coded in law. Ordinary assets like land, debt, business organizations, knowledge, etc. can be transformed into capital through the use of core legal modules like contract law, property law, collateral law, corporate law, bankruptcy law, etc.

  • Private lawyers have historically molded and adapted these legal modules to enhance their clients’ wealth by coding new types of assets. States have supported this by enforcing the legal rights bestowed on capital.

  • The book tells the story of how different types of assets have been legally coded as capital over time, focusing on land, businesses, private debt, and even nature’s genetic code.

  • Core legal institutions like property rights, trusts, collateral, and corporations have powered the expansion of financial markets but also contributed to crises by prioritizing the enforcement of legal entitlements.

  • The law is a powerful tool for social ordering that has been placed firmly in the service of capital creation and accumulation. The book examines how this impacts inequality and other social outcomes.

  • The author aims to make the complex topic of how law shapes wealth and the economy accessible to non-legal audiences through a historical tracing of key legal innovations.

  • The preface thanks various people who helped with the research and editing of the book, including librarians, researchers, and the author’s husband.

  • It dedicates the book to the author’s husband, thanking him for his support and for pushing her to strengthen her arguments even when it risked alienating others.

  • The book examines how law is used to code different assets as capital and create wealth and inequality. Ordinary assets are transformed into capital through legal mechanisms like contract, property, corporate and bankruptcy law.

  • This legal coding bestows priority, durability, universality and convertibility on assets, allowing their holders to accumulate wealth over long periods of time. It is the core process by which capital is created but has been hidden from view.

  • Uncovering how law codes assets as capital can help explain economic puzzles like rising inequality and Thomas Piketty’s finding that returns to capital exceed economic growth. The metamorphosis of capital tracked changes in the assets given legal privileges like land transforming to shares and bonds.

  • The legal code of capital plays an essential role in fashioning certain assets into capital that can confer wealth and power on their holders. Traditional concepts of common law property were created to benefit ruling landowning classes, but now wealth lies in stocks, shares, bonds, and intangible assets governed by legal structures.

  • The legal coding of assets, through corporations, trusts, financial contracts, and intellectual property rights, determines their capacity to bestow wealth. Sophisticated legal strategies can turn ordinary assets into capital that is protected from business cycles and ensures sustained wealth.

  • An “empire of law” has been built since Adam Smith’s time that enables asset holders to choose favorable laws regardless of physical location. States recognize foreign laws to facilitate global trade and finance. Leading this empire are English common law and New York state law, home to global financial centers London and New York.

  • Through selective use of domestic laws woven together by conflict-of-law and treaty rules, this decentralized empire allows those who can access sophisticated legal strategies to pick laws best serving their interests, while states aid this process to attract capital. This severs the connection between citizenship and legal protection that once constrained wealth accumulation.

  • Capital is a complex term that refers not just to money, but to assets that generate wealth or returns. Its meaning has evolved over time as the outward forms of capitalism have changed.

  • Marx viewed capital as arising from the exchange of goods for money and the extraction of surplus from labor. Others have defined it more broadly, for example as an asset’s income-generating capacity.

  • Contrary to some views, even human attributes like labor and ideas can be legally coded as capital through mechanisms like intellectual property rights and corporate structures. Historically, slaves were also used as capital and collateral.

  • Key thinkers like Veblen, Commons, and Levy pointed to the importance of legal institutions and expectations in enhancing assets’ reliable income-generating qualities and ability to be exchanged - in other words, in creating capital.

  • The critical attribute of capital comes from how certain legal modules like contracts, property law, collateral, corporations, and trusts bestow priority, universality, durability, and convertibility upon assets, turning them into reliable generators and stores of wealth.

  • This legal coding process can turn any asset, including humans and intangibles, into capital. It helps explain the evolving forms and “financialization” of capitalism over time.

Here is a summary of the key points about priority, durability, convertibility, and universality as they relate to wealth creation:

  • Priority rights determine the order in which creditors are repaid in cases of bankruptcy or insolvency. Secured creditors have priority over unsecured creditors and can recover assets before others. This priority is critical for securing investment capital through mortgages, loans, etc.

  • Durability extends priority claims over long periods of time, even as creditors and debtors change. Legal structures like corporations can operate indefinitely, shielding their assets from personal creditors and enabling wealth to be passed down through generations.

  • Universality ensures priority and durability apply not just between original contracting parties but against all third parties. It takes state enforcement power to uphold these rights universally.

  • Convertibility gives asset owners the right to freely transfer assets and access state-backed money even if private markets no longer value their assets. This reliability and liquidity is crucial for asset holders to realize gains and lock in value over time.

  • Together, these attributes create a strong, legally backed capital code enforced by states. This code scales economic relationships beyond local communities and enables large-scale, long-term wealth creation through mechanisms like investment, lending, and business ownership.

  • States have the coercive power to enforce laws, which allows them to enforce both public laws (the state’s commands) and private legal agreements and rights like property rights.

  • While state power is not always directly used, its credible threat of legal coercion encourages voluntary compliance with laws and agreements.

  • Law helps minimize deviant behavior and encourage private decentralized enforcement by establishing clear, collective expectations about acceptable and unacceptable behavior. Private parties have reason to help enforce others’ legal claims because they may need similar enforcement in the future.

  • For capitalist systems where assets are unevenly distributed, relying only on private enforcement is insufficient. The more diverse and uneven the distribution of assets, greater state coercion is needed to clearly establish the priority of legal claims and resolve disputes over competing claims. This links states and capital.

  • Global capitalism relies on an international legal infrastructure where states commit to recognize foreign legal claims and rights, enforce foreign laws in their own courts, and lend their coercive enforcement powers to help resolve cross-border legal disputes.

  • In summary, the coercive enforcement powers of states, both domestically and internationally, are crucial for the functioning of capitalism and enforcement of private legal agreements and property rights that underpin economic transactions and accumulation of capital assets.

  • The chapter discusses how land has historically played an outsized role as a key source of sustenance, wealth, and cultural identity for humans. It was one of the most important sources of wealth even as countries industrialized.

  • It unpacks how the basic techniques for legally coding capital (i.e. turning assets into sources of private wealth) were first developed and tested for land, then later applied to other assets like intellectual property. This involved coding land as private property to capture its monetary value.

  • It uses the legal case of the Maya peoples of Belize as an example. For centuries, the Maya had informal but established collective use practices over certain lands. However, the government granted logging/mining concessions without consulting or compensating the Maya.

  • The Maya argued in court that their longstanding usage rights constituted a legal property right protected by the constitution. The government countered that British colonial conquest extinguished any prior claims.

  • The Supreme Court analyzed the nature of the Maya’s historical land usage and whether it survived colonialism to constitute a protected property right today. This highlighted the critical role courts often play in validating certain economic practices as legally recognized property rights.

  • The chapter argues legal coding of assets can serve purposes beyond just private wealth maximization, as the Maya case showed property rights can take various collective or sustainability-oriented forms as well.

  • The case considered whether the Maya people had collective property rights over their traditional lands in Belize. The government argued that sovereignty over the territory gave it control of all lands, but the court found no evidence the British Crown explicitly overturned existing indigenous rights.

  • The court looked to prior cases, including a 1921 Privy Council case from Nigeria about customary land tenure. This established that traditional use rights and customs can amount to a form of property right.

  • Examining the Maya’s land practices, the court found they had customary rights of usufruct - to occupy, farm, hunt, fish and use the land’s resources. These were collective, not individual, rights.

  • Looking to the Belize Constitution and statutes, the court determined the Maya’s usage rights fit the definition of an “interest in real property.” However, the government ignored the ruling and continued allowing mining on Maya lands.

  • While seeking legal recognition of their rights, the concept of individual private property was alien to the Maya, who managed land access and resources communally as the basis for their way of life. The history of enclosures in England shows how collective lands were transformed into private property.

Here is a summary of the provided passage:

  • The enclosure movement in England involved legal battles over land rights between landlords and commoners. Both sides relied on arguments from custom, legal tradition, long-term occupancy, and land use patterns to argue their claim was superior.

  • Courts did not always side with landlords, and some cases lasted decades as rulings swung between the two sides. Ultimately though, landlords prevailed legally which helped solidify their control over the land.

  • Most disputes were heard in bodies like the Star Chamber and chancery courts rather than common law courts. These acted more in equity rather than rigid common law. Landlords may have had an advantage with better lawyers on their side as the legal profession was growing.

  • Successful enclosures created conditions for an emerging land market. Land sales significantly increased after the 1500s. Legal battles over private property rights in land continued through the 17th century.

  • The concept of absolute private property rights eventually became established legal doctrine and was exported to colonies, used to acquire land from indigenous peoples relying on arguments of discovery and improvement overriding prior occupancy/use claims.

This passage summarizes the legal changes that transformed landed estates in England from durable sources of private family wealth into ordinary assets or commodities that could be more easily bought and sold or seized by creditors. Specifically:

  • English landowners had originally mortgaged their land, giving creditors claims on the property in the event of default, but a legal institution called “entail” prevented the land from being fully alienated and protected it for future generations.

  • Over time, however, the system of land relations and legal coding strategies used to shield family estates from creditors came under increasing stress due to economic changes.

  • Reform legislation in 1881 finally declared life tenants the full owners of entailed property and allowed creditors to enforce claims against the entire family estate. This stripped land of its durable capital attribute and treated it more like an ordinary asset.

  • This triggered a major reallocation of land ownership as more than 20% changed hands in the decades after reform. The legal coding of land in England was thus dramatically changed.

Here is a summary of key points from the passage about the Debt Recovery Act of 1732:

  • The Act gave creditors the right to seize all land, including family estates, and auction it off to recover unpaid debts.

  • This had the immediate effect of breaking up large agricultural estates, especially in southern states in the colonies.

  • It also triggered the first major slave auctions as creditors seized slaves as assets to recover debts from defaulting debtors.

  • The Act had the potential to create a more egalitarian distribution of wealth in line with republican ideals in the colonies/new U.S.

  • However, landowners soon learned legal techniques from England to “code” their private wealth as protected capital, keeping wealth concentrated.

  • The political economy was different in the colonies - the English legislature had fewer qualms about shifting power to creditors, who were often Englishmen seeking to recover debts from colonists.

So in summary, the Debt Recovery Act broke up large estates and triggered slave auctions, but landowners eventually learned legal ways to concentrate and protect wealth again through techniques like trusts.

  • The legal device of the trust has historically been used to protect wealth and assets from creditors by shielding them.

  • Corporate law can provide similar asset protection by shielding a firm’s assets from shareholders and their personal creditors. It allows for partitioning of assets in ways that reduce costs.

  • Corporations are commonly used not just for producing goods/services, but as a way to maximize financial gains through lowering taxes, debt financing costs, and regulatory costs. This is especially seen in the financial services sector but has become mainstream.

  • Economists see corporations as legal fictions representing contracts between stakeholders. But they provide important asset shielding that contracts alone cannot.

  • While corporations enhance efficient resource use by encouraging risk-taking and mobilizing investment, the chapter argues they can also be used as “capital minting operations” through partitioning assets behind corporate veils. This allows locking in past gains and sheltering asset pools in strategic ways.

  • Lehman Brothers filed for bankruptcy on September 15, 2008, which marked the start of the global financial crisis.

  • Lehman Brothers was originally founded in 1850 as a small cotton trading business in Alabama by three German immigrant brothers. It later expanded into investment banking and securities trading.

  • By the time it collapsed, Lehman Brothers comprised over 200 subsidiaries across 26 jurisdictions, primarily utilizing the corporate form to separate assets and operations.

  • The corporate form gave Lehman Brothers an indefinite lifespan but it only survived 14 years as a corporation before failing. Its overreliance on debt and complex legal structure across subsidiaries ultimately contributed to its demise.

  • The bankruptcy of the parent company Lehman Brothers Holdings caused all the subsidiaries to lose access to refinancing and fall like dominos, accelerating the financial crisis.

  • The author argues that examining the legal structure of companies like Lehman Brothers, not just their economic operations, is important to understand their rise and fall. The corporate form was instrumental in Lehman Brothers’ growth but also played a role in its collapse.

This passage discusses the historical development of certain key legal features of modern business corporations:

  • Entity shielding allows a corporation to separate its assets from those of its owners/shareholders, creating distinct asset pools with distinct creditors. This limits creditors’ ability to seize owners’ personal assets.

  • Loss shifting allows owners/shareholders to limit their losses by shifting risk to contractual/tort creditors or governments through bailouts. It gives owners a “put option” to offload losses.

  • Immortality extends the potential lifespan of a corporation, allowing it to survive owners/partners turning over. It can only be dissolved through bankruptcy or shareholder vote.

It explains how Lehman Brothers extensively used these features through complex legal structuring of subsidiaries and debt guarantees. While benefiting shareholders by maximizing returns, this also increased the firm’s risks and ultimately led to its collapse. The passage provides historical context for how these key legal attributes of modern corporations evolved over time in various legal systems to their current forms.

Here are the key points this passage makes about using separate legal entities to shield assets:

  • Partitioning assets behind separate legal entities allows creditors to focus their monitoring efforts on specific business operations/divisions rather than the entire business. This reduces transaction costs for creditors.

  • Entity shielding protects creditors of one business unit from the liabilities of other units. But it also shields the parent company/other units from creditors of the individual subsidiaries.

  • Creditors often require personal guarantees from the senior partners/parent company so they have recourse against the entire business in case of default by a subsidiary.

  • While entity shielding may fool creditors into lending more by seeming to offer more security, it actually just makes the total debt of an integrated business more opaque and difficult to monitor.

  • Owners benefit from entity shielding as it allows them to capture profits from successful business units while shifting the risks/losses of failing units to creditors of those individual entities. This transfers downside risks away from owners.

  • Early legal systems offered similar concepts like limiting a Roman business owner’s liability to specific business operations run by their slaves. This established the idea of using legal structures to shield owners from business liabilities.

So in summary, the passage argues that separate legal entities benefit owners by shielding assets and allowing risk/loss-shifting, while potentially misleading creditors into thinking risks are more divided than they actually are for an integrated business as a whole.

  • Limited liability became a core feature of most 19th century corporate statutes as investments on the scale of industrialization became necessary. However, some places like California didn’t adopt it until later. This shows large investments were possible without limited liability.

  • LBHI shareholders benefited greatly from limited liability. They received millions in dividends even after the financial crisis began but faced no liability when LBHI went bankrupt.

  • Creditors were the real losers of LBHI’s failure, receiving on average only 21 cents per dollar loaned. Priority in bankruptcy mattered greatly.

  • Some creditors may have believed LBHI’s many subsidiaries provided enough diversification, or that profits would always flow to LBHI. Others obtained contractual protections. Many also assumed the government would bail out a giant firm.

  • Lehman’s collapse showed investors cannot always count on bailouts when a firm is big enough to threaten the whole system. Governments were eventually forced to intervene across many countries.

  • While corporate status promises longevity, immortality is not guaranteed as firms must balance assets and liabilities or face dissolution by shareholders. Partnerships are even more vulnerable without replacing partners.

  • Partnerships have less protection of personal assets compared to corporations, since partners’ personal assets are at risk. However, partners may be more cautious since it’s their own money at risk.

  • The conversion of investment banks from partnerships to corporations in the 1980s-90s closely tracks the large increase in leverage/debt at those firms.

  • Legal innovations like corporate personhood and shareholder lock-in were important for corporations to achieve stability and longevity.

  • A key innovation was imposed on the Dutch East India Company in 1612 - it denied shareholders the right to withdraw their initial investment after 10 years. This created durable asset pools that could grow indefinitely.

  • Shareholder lock-in allowed companies like the Dutch East India Company to rapidly expand operations, take on more debt, and make long-term infrastructure investments compared to competitors.

  • Modern corporations can choose what state’s corporate laws will govern them through “conflict-of-law” rules, allowing them to select favorable tax and regulatory environments. This regulatory competition has eroded any single state’s control over corporations.

  • The passage discusses the incorporation theory and seat theory of corporate citizenship/nationality. Under incorporation theory, a corporation’s citizenship is based on where it is incorporated, allowing it to operate globally. Under seat theory, citizenship is based on a corporation’s headquarters location.

  • Most countries, including the UK and US, follow incorporation theory. The EU has largely rejected seat theory as well. This allows corporations wide flexibility to choose an incorporation location and move headquarters without changing citizenship.

  • Lehman Brothers exemplified this, incorporating entities in multiple favorable jurisdictions like Delaware, the UK, and Cayman Islands for tax and regulatory benefits. Its complex structure relied on incorporation theory acceptance.

  • Corporations have more ability than individuals to choose their tax jurisdiction by incorporating subsidiaries in low-tax countries. Apple used an Irish tax structure to pay only 1-5% tax on EU sales.

  • Lehman set up a system called RASCALS to avoid EU capital adequacy rules by transferring assets between subsidiaries in different jurisdictions with more favorable regulations. This demonstrated the lengths corporations will go to for regulatory arbitrage using multiple incorporation options.

  • Debt has become one of the defining assets of capitalism, especially debt that can be easily traded and converted to state money on demand. This convertibility is important for investors, as it allows them to lock in gains by exchanging private assets for state currency.

  • Over time, various legal techniques have been developed to code debt instruments in a way that enhances their convertibility, without serious loss of value. This started with simple notes and bills of exchange in medieval times, and has evolved to modern securitized assets and credit derivatives.

  • The story traces a shift from landowners as primarily debtors, to creditors as the stronger legal position of asset holders. After land was dethroned in the late 19th century, financial assets came to the fore.

  • Key legal elements like contract, property, trust and bankruptcy law are used to mitigate debt risk and fuel its expansion. This creates huge gains, but losses are often socialized through bailouts that commit future citizen productivity. Without state backing, debt cycles would have more natural ups and downs in creating and destroying wealth.

So in summary, it outlines how debt became a core capitalism asset and how legal techniques evolved to code debt for enhanced convertibility and risk mitigation, fueling expansions and bailouts that socialize later losses.

  • Countries that faced economic crises and destroyed wealth had to cede sovereignty over their economic policies to international creditors like the IMF or European institutions as part of credit/bailout agreements.

  • When states stepped in to provide new credit during crises, they tended to protect large asset holders and the financial system, contributing to concentration of wealth at the top.

  • NC2 was a complex securitization structure created in 2006. It pooled residential mortgages originated by New Century, a subprime lender, and sold them to Citigroup. NC2 was set up as a trust under New York law.

  • Securitization became a large business involving many players filling roles like sponsor, trustee, administrator. It created fees but also relied on a constant supply of mortgages and high credit ratings to attract investors. Standards declined over time to feed the growth of private label securitization.

  • Citi changed its portfolio from mostly low-risk prime MBS to an equal share of prime and high-risk subprime products. It also increased its total portfolio size significantly, indicating the expansion was driven mostly by subprime products.

  • The overall market also shifted towards subprime mortgages during this period.

  • Citi and other intermediaries like Bear Stearns and New Century suffered severe financial distress during the crisis due at least partly to these riskier business practices.

  • NC2 pooled subprime mortgages and issued tranches of securities to investors, each with different risk and return profiles. Senior tranches went to entities like Fannie Mae while riskier junior tranches went to Citi itself and some foreign investment funds.

  • Rating agencies rated these novel ABS and CDO products using the same scales as traditional bonds, obscuring the lack of long-term performance data for the new securitized products. This misleadingly implied less risk than existed.

This passage discusses the historical evolution of debt instruments and their increased legal complexity over time. It begins by describing how simple promissory notes in the 12th century Genoa could be transferred to a “messenger” to get around prohibition on transferring contractual obligations. It then talks about how bills of exchange became a more negotiable instrument in the late Middle Ages, allowing multiple parties to be liable for payment. The passage traces how these debt instruments were used increasingly for financial speculation and regulating arbitrage to get around usury and other laws. It suggests modern securitized assets continue this trend of private financial innovation outpacing simple legal constructs and finding new legally protected ways of converting claims to future payments into readily tradable assets. In summarizing, the passage chronicles the increased legal sophistication and privileges granted over time to turn various debt instruments into fungible, tradable assets.

This passage discusses the history and nature of financial securitization, particularly the securitization of mortgages and land. Some key points:

  • Securitization transforms illiquid assets like mortgages or land ownership into tradable financial assets. This was pioneered in Prussia in the late 18th century to help indebted aristocrats repay debts.

  • In the US starting in the 1960s, government entities like Fannie Mae and Freddie Mac helped fuel the private securitization of mortgages by buying securities and guaranteeing performance.

  • Securitization pools assets and issues interests/claims backed by the assets in the pool. This diversifies risk to reduce borrowing costs.

  • State backing, in the form of guarantees or subsidies, helped boost securitization markets. Prussia and US schemes both had some degree of state support.

  • Overcoming legal obstacles like real estate law was necessary to develop mass securitization markets. Workarounds were used but legal issues sometimes ensued, like in the example foreclosure case discussed.

So in summary, it traces the origins and growth of financial securitization, particularly for mortgages, highlighting the roles of risk distribution, state support, and legal adaptation over time.

The passage describes how Option One assigned the Ibanez mortgage to multiple intermediaries, including Lehman Brothers entities and the Structured Asset Securities Corporation, before it was ultimately assigned to U.S. Bank as trustee. However, none of these assignees were actually documented in the paperwork U.S. Bank presented to the court.

When Ibanez defaulted, U.S. Bank foreclosed on the property. But the court refused to grant U.S. Bank clean title because the assignment history was unclear based on the lack of documentation. The court ruled that only the first assignment from Rose to Option One was legally valid.

This case highlighted flaws in the processes used by the financial industry to quickly assign and pool mortgages. It established that valid assignments require specifying the assignee and listing the specific mortgages being assigned. Blank or undocumented assignments are invalid.

This passage summarizes the creation and failure of CDOs (collateralized debt obligations) during the mid-2000s financial crisis:

  • CDOs repackaged risky mortgage-backed securities (MBS) into tranches that received credit ratings like AAA, making them seem very safe. This was done by using mathematical models to spread out risk.

  • $700 billion in CDOs were issued between 2003-2007 as the market boomed. Major banks like Merrill Lynch, Goldman Sachs, and Citigroup underwrote many of these deals.

  • When the housing market declined and homeowners defaulted, the underlying assets in CDOs became “toxic.” Nobody wanted to hold them anymore since the risk inside was unclear.

  • As CDO values fell, it precipitated the collapse of financial institutions like Bear Stearns and Lehman Brothers that had created and invested heavily in this market. The structured finance system fell apart.

  • In the end, spreading out risk through complex structures could not hide the fact that CDOs were ultimately tied to the performance of individual homeowners and the real estate market.

  • Nature’s genetic code was discovered in the 19th century, with the double helix structure of DNA determined in 1953, revolutionizing the understanding of biology.

  • The race to convert genetic knowledge into patented, wealth-producing assets began decades before the full human genome sequence was mapped in the early 2000s.

  • While the publicly-funded Human Genome Project kept the overall human genome in the public domain, pieces of genetic code have still been patented, primarily in the US which has an expansive view of patentability for anything “made by man.”

  • Intellectual property rights like patents allow the temporary enclosure and monopolization of knowledge, though patents expire. Alternative legal encodings like trade secrecy laws can prolong the life of such enclosures by preventing disclosure of protected information indefinitely.

  • Aggressive use of intellectual property laws has allowed the enclosure not just of human genes but also the genetic code of other organisms, nature and life itself. This represents a new way of coding knowledge as a legally protected, capitalized asset.

  • The passage discusses the legal battles around patenting human genes, specifically the BRCA genes associated with breast cancer.

  • In the 1990s, Myriad Genetics identified the sequences of the BRCA1 and BRCA2 genes and patented them. This gave them a monopoly on diagnostic testing for these genes.

  • Other researchers and genetic testing clinics challenged these patents in court. They argued that isolated human genes should not be eligible for patent protection.

  • The case went all the way to the Supreme Court. In 2013, the Court ruled that “isolated but otherwise unchanged” human genes could not be patented. However, synthetic DNA (cDNA) could still be patented.

  • This ruling opened up competition in genetic testing and reduced the costs, making tests available to more women. However, it did not completely resolve debates around patenting human biology and left some lines unclear.

So in summary, it outlines the legal dispute around Myriad Genetics’ patents on the BRCA genes and the Supreme Court case that ultimately invalidated patents on isolated human genes.

  • The Supreme Court’s ruling invalidating patents on human genes was surprising to many patent experts, as the US Patent Office had granted gene patents liberally for over 20 years.

  • Myriad argued the court should defer to the Patent Office, but the court asserted its authority to interpret patent law. However, existing gene patents remain valid unless challenged individually.

  • While losing its gene patents was expected to seriously hurt Myriad financially, it had less impact than expected as Myriad had built a testing monopoly between 1994-2013, generating $2 billion in revenue. Revenues remained high after the ruling.

  • Patents are meant to incentivize creativity by allowing temporary monopolies, but human creativity predates modern patent systems. Most creators receive little financial return. Corporations are the main beneficiaries as they extract shareholder value from patents.

  • Some argue extensive patenting of knowledge and intangibles like business processes has discouraged investments, despite accounting for a growing share of corporate value, and may be contributing to economic stagnation. However, fully accounting for intangibles investments could change this view.

  • The chapter discusses how knowledge and intellectual property (IP) rights have contributed to an “investment famine” by limiting others from using, improving, and investing in knowledge. This has skewed wealth distribution.

  • While technologies have become more knowledge-intensive, favoring smaller firms, large global corporations dominate due to IP ownership thanks to laws that enshrine knowledge as private property.

  • IP rights like patents started as temporary monopolies granted by rulers to attract skilled artisans and craftspeople. Over time, they became regularized through statutes and treated as capital assets countries competed over.

  • International treaties required countries to recognize each other’s IP rights, pressuring more to adopt stronger domestic protections to attract foreign innovators and businesses.

  • In the US, industry lobbying pushed the government to strengthen and globalize IP protections, using trade sanctions against countries that did not comply with US standards. This concentrated power in large corporations.

  • An influential pharmaceutical CEO shaped US advisory committees on trade to advocate for stronger global IP enforcement, showing private industry influence on public policy in this area.

  • The proliferation of patents on antibiotics initially led to inefficiencies as companies consolidated their patent holdings through swaps. Pfizer sought to build market share in developing countries where patent protections were weaker.

  • Two obstacles emerged for Pfizer: some developing countries like India enacted laws encouraging generic drugs while limiting patent scope, and more countries gained pharmaceutical production capabilities.

  • To address this, Pfizer and other US companies globalized patent standards through trade agreements requiring stronger intellectual property protections. The WTO’s TRIPS agreement established global minimum standards based on the US model.

  • Private companies in the US organized lobbying groups like the IPC to push this agenda globally. Through trade sanctions and agreements like NAFTA, they pressured countries to accept stronger patent rules through the WTO/TRIPS. Despite economic criticisms, TRIPS was adopted due to US economic leverage over other countries.

Here is a summary of the key points about trade secrets in the age of big data from the passage:

  • Companies are increasingly using both patents and trade secrets together in a complementary way, not just choosing one or the other. This gives them stronger and more lasting exclusionary effects.

  • “Data-generating patents” allow companies to build huge private databases during the patent term that can then be protected indefinitely via trade secrecy laws after the patent expires.

  • Myriad’s BRCA patent is used as a case study, where it generated a unmatched patient database during the patent period that it still derives profits from via trade secrecy protections.

  • This combines the strongest aspects of patents (time-limited exclusivity and data generation) with the indefinite nature of trade secret protections for valuable databases. It mimics some of the exclusionary tactics of medieval guilds.

  • Google is given as another example, where its core PageRank search technology was initially patented, allowing it to build its data empire before maintaining exclusivity over that data via trade secrecy.

So in summary, the key idea is how companies in the big data age are using patents and trade secrets in a combined, complementary manner to generate proprietary data assets and maximize long-term exclusionary control over valuable information.

The passage discusses how global capitalism is sustained through the extension of a few domestic legal systems across borders, without the need for a global state or unified legal system. It focuses specifically on how English common law and New York state law form the basis for global capitalism.

Private choice of law has allowed corporations to choose which laws govern their contracts and operations, expanding the reach of certain domestic legal systems globally. Conflict of law rules in many countries recognize and enforce private choice of governing law. This has allowed multinational corporations to choose favorable jurisdictions for incorporation and operations.

Rather than harmonizing all laws, the trend has been to facilitate legal and regulatory competition between states while enabling private actors to choose whichever laws suit them best through conflict of law rules. This has proven more effective for protecting global capital flows than direct harmonization of laws between countries. The recognition of private legal choices across borders has been key to sustaining global capitalism in a decentralized international system.

  • States allow private parties to choose the law that best suits their interests through things like conflict of law rules and choice of law clauses. This has led to the dominance of English and New York laws for governing global capital markets.

  • When it comes to property rights over physical assets located within a territory, states insist on applying their own domestic laws. But for intangible financial assets that lack physical form, other criteria were needed to determine which laws govern them.

  • An international treaty adopted the PRIMA rule - the law of the place where the financial asset-issuing entity is incorporated determines the property law for those assets. This allows private parties considerable flexibility in choosing property laws.

  • In contrast, intellectual property rights are still largely determined by individual sovereign states despite some international harmonization through treaties like TRIPS.

  • Bilateral investment treaties with ISDS mechanisms have given private parties more ability to challenge states’ property law determinations through arbitration claims.

  • Property and bankruptcy laws remain politically sensitive areas that states have resisted further international harmonization in. This has led to battles over determining the “global code of capital”.

  • NAFTA created new rights for private foreign investors, allowing them to sue host states through international arbitration if they believe their investments have been infringed. This is a powerful enforcement mechanism.

  • Similar investor-state dispute settlement mechanisms have been included in over 3000 bilateral investment treaties. Over 800 cases have been filed alleging infringements of investments.

  • Eli Lilly sued Canada through NAFTA arbitration after Canadian courts revoked patents for two of its drugs. Eli Lilly argued this constituted unfair treatment and expropriation under NAFTA.

  • The case challenged Canada’s ability to set its own intellectual property laws and subjected the Canadian judiciary to review by an international tribunal, stretching the limits of NAFTA protections.

  • The tribunal eventually ruled in Canada’s favor but took two years, during which arbitrators and lawyers’ fees amounted to millions. The case revealed problems with a system that incentivizes private arbitrators to expand their own jurisdiction.

  • Financial assets are also intangible creatures of law that lawyers have influenced through international regulations and treaties, allowing assets to be coded under just two major legal systems - English or New York law - despite being traded globally.

  • Bankruptcy law deals with life and death decisions for companies and accounting for losses, so countries are reluctant to relinquish control over it.

  • ISDA successfully lobbied over 50 legislatures to amend their bankruptcy codes and create exemptions (“safe harbors”) for derivatives and repos, exempting them from normal bankruptcy rules.

  • The main argument was that making domestic laws compatible with private derivatives contracts was key for countries to participate in global derivatives markets.

  • ISDA drafted a “Master Agreement” framework contract that specified rights and obligations for counterparties engaging in derivatives transactions. It advised parties to choose New York or English law.

  • The Master Agreement created a special default regime for derivatives, allowing non-defaulting parties to close out all claims if the other party declared bankruptcy, without having to wait like other creditors. But this conflicted with most countries’ bankruptcy laws.

  • So ISDA further lobbied legislatures to change their bankruptcy laws to accommodate the provisions of the Master Agreement, making state law consistent with private derivatives contracts. This started with amendments to the US bankruptcy code.

  • Derivatives markets like credit default swaps and repos were exempted from normal bankruptcy rules through “safe harbors” because it was believed the default of one counterparty could spread risk throughout the market.

  • Over time, more and more assets were added to the list of those exempted from core bankruptcy proceedings thanks to lobbying by ISDA. Judges lost ability to determine what qualified as a derivative.

  • ISDA then lobbied regulators in Europe to adopt similar bankruptcy safe harbors for derivatives in EU law. The directives required EU members to create safe harbors, changing bankruptcy priorities.

  • During the financial crisis, close-out netting rules allowed derivatives traders to exit positions faster than other creditors, deepening losses. When Lehman collapsed, over 90% of its derivatives trades were immediately closed out.

  • The crisis showed safe harbors did not achieve their goals and some legislators wanted to roll them back, but it was difficult given existing contracts were under foreign laws like New York or UK.

  • Through the FSB, governments negotiated with ISDA to create a protocol for a 48-hour delay before netting could occur, but only large banks signed initially as hedge funds refused. Regulators then pressured banks not to trade with non-signers.

Here are the key points from the passage:

  • States have lost control over global finance governance as industry groups like ISDA have assumed greater regulatory and rule-making powers. ISDA in particular has lobbied legislatures to adapt laws to its contracts and derivatives market rules.

  • ISDA initially created rules privately through contracts like the ISDA Master Agreement, but then had to concede it couldn’t fully self-regulate and cooperate with states on regulatory changes to avoid more aggressive state regulation.

  • Traditional law enforcement agencies like courts and regulators have increasingly been co-opted to serve capital holders’ interests rather than citizens. Companies like Eli Lilly use tactics like private arbitration and intimidation to discredit legal systems and influence governments.

  • Over decades, laws, conventions, and treaties have been pieced together in a way that gives private actors like arbitrators more power over states and allows capital holders to utilize the law and state powers indirectly for their own interests. This has largely eroded states’ control over governance and rulemaking in areas like finance and investment disputes.

  • Lawyers play an important role in “coding” capital by crafting new financial assets and structures using modules of existing legal codes like property, contracts, trusts, corporations, and bankruptcy law.

  • They have significant leeway to combine and recombine these legal modules in innovative ways, beyond what legislatures and courts may envision.

  • Moving between jurisdictions also expands their options, as they can choose the legal system most accommodating for a given financial product or structure.

  • Clients highly value the priority rights, durability, liquidity, and legal force lawyers can encode in assets. This is why top lawyers command very high hourly rates.

  • The most skilled lawyers are deeply familiar with laws from multiple jurisdictions and understand rules, regulations, exceptions, and tax laws that can impact their coding strategies.

  • Their mastery of legal modules from different systems allows highly innovative combining and restructuring of assets in ways that confer unique advantages for clients. This positioning of lawyers as true “masters of the code” goes beyond simple legal advising.

  • Lawyers have developed a “toolkit” to classify assets as capital in order to take advantage of legal attributes and protections of capital. This allows their clients to shield assets from liability.

  • They employ various legal structures and strategies to distribute and arbitrate risk, often shifting potential losses to others. Their goal is to anticipate and guard against all possible legal risks for themselves and their clients.

  • Lawyers actively fashion new laws and legal innovations through complex financial structures and transactions, subject only to potential ex post scrutiny. They are essentially “masters of the code” who define and shape what is legally permissible.

  • Large law firms have become concentrated experts in coding capital for their corporate clients. Partners at elite law schools make substantial incomes coding assets and designing transactions. While serving client goals, their work fundamentally impacts wealth distribution in society.

  • Through innovations like the poison pill, some lawyers do far more than just engineer deals - they invent new legal devices that rewrite the rules of the game for entire industries. These masters are the true innovators behind recoding assets as capital.

  • The passage discusses the role of lawyers, particularly in common law systems like the US and UK, in “coding” assets as capital through the legal system. It argues lawyers have been coding new forms of wealth and assets for centuries, from land to modern financial products.

  • Some economists like Stephen Magee have argued there can be too many lawyers and they may have negative economic effects past a certain point. However, others dispute this analysis.

  • Lawyers in common law systems like the US and UK have more flexibility to develop new legal rights and arguments compared to civil law countries. This ability to continuously “code” new forms of capital through law gives common law systems an advantage in supporting global capitalism.

  • A key difference between common and civil law is the latitude common law gives private lawyers to fashion new law, as long as they mimic previous successful legal arguments. This role of lawyers in developing the law is a major distinction from civil law systems.

  • In summary, the passage explores the role of lawyers, particularly in common law countries, in continuously developing and “coding” new forms of legally recognized capital and wealth through the flexible common law system over centuries.

  • Early legal professionals in England in the 12th century were a new breed practicing private law for clients, not serving the Crown. Over time this branched into litigators (barristers) who prepare cases and transactional lawyers (solicitors) who interact with clients. This division of labor continues today.

  • On the continent, law was taught at universities starting in the 13th century, focusing on Roman law. This trained lawyers for state offices rather than private practice like in England.

  • In France, regulation of lawyers began in 1345 and they were long governed by the state rather than their own rules. Lawyers worked both publicly and privately but lines were more clearly drawn than in England.

  • In Germany, the state tightly controlled private lawyers in Prussia in the 18th century, limiting their numbers and authority. Lawyers only gained more autonomy in the late 19th century. Training remains focused on the public profession compared to England.

  • Overall, private lawyers emerged later and with less autonomy from the state on the continent compared to England’s common law tradition.

  • Common law lawyers have had an advantage in codifying capital due to their flexibility to develop new laws subject to occasional court review. Civil lawyers have caught up in recent decades but have a less flexible legal system.

  • The American legal profession developed from the English model but is more competitive and less regulated. It grew rapidly in the 19th century despite little formal legal education. Lawyers filled an important need in the young, decentralized country.

  • Formal legal training and bar associations developed in the late 19th century due to protectionist motives from established lawyers and a desire for greater professionalism. Law schools proliferated nationwide.

  • This increased competition among well-educated lawyers and disrupted old elite networks between firms and corporate clients. New lawyers and firms adopted more aggressive strategies.

  • Different legal traditions prepared common law countries like the UK and US to extend domestic law globally in the absence of a global legal system. The UK benefited from its colonial ties while the US system encouraged exploiting differences between state laws. This made American lawyers skilled at competitive legal coding strategies across jurisdictions.

This passage discusses how lawyers from common law systems like the US and UK have exported their legal skills globally, driving the rise of the global legal profession. Some key points:

  • Most global law firms are based in the US and UK, with firms from civil law countries like France and Germany only making the top 100 lists if they merged with an Anglo-American firm.

  • The UK in particular has become a hub for global law firms, with over 200 foreign firms maintaining offices in London for access to English common law and the London financial center.

  • US and UK law firms are crowding out domestic firms in Europe for areas like corporate law and M&A that are important for global business.

  • The rise of global legal practice has transformed the relationship between lawyers and states/laws. Lawyers can now pick and choose legal systems and avoid unfavorable court rulings through arbitration.

  • However, lawyers still depend on state authority to enforce the legal structures they create. And dispute resolution through arbitration instead of courts makes the law less transparent and adaptable over time.

So in summary, it describes how Anglo-American lawyers have dominated the globalization of legal practice by applying their skills internationally and stitching together a patchwork of legal options to serve global business clients.

  • The US Consumer Financial Protection Bureau issued a rule banning arbitration clauses in consumer loan contracts, but Congress overturned this rule at the behest of banks and credit card companies, showing the close alignment of corporate and political interests.

  • Lawyers are increasingly relying on avoidance strategies rather than building cases on existing law, guessing how courts might rule instead. Their clients play along to benefit from the legal opinions, while outsiders may refuse to recognize privileges lacking court backing.

  • Lawyers have lobbied for legislative/regulatory changes to gain certainty, showing success. If political winds change, the legal framework sustaining global capitalism through private coding could falter.

  • Blockchain technology and smart contracts implemented through decentralized databases could replace lawyers’ legal coding with digital coding. However, digital coders also have hierarchical power as code creators, and states are starting to legally encode the digital domain too.

  • The passage discusses smart contracts, which are contracts coded digitally using blockchain technology. Smart contracts aim to be self-executing without the need for legal enforcement.

  • Supporters argue smart contracts could fulfill the ideal of contracts being automatically honored without breach (pacta sunt servanda). However, critics argue smart contracts are incomplete and cannot adapt to unforeseen changes.

  • Context matters - simple contracts like vending machines may be easily coded digitally, while more complex agreements rely more on legal codes.

  • Attempts have been made to allow smart contracts to adapt, such as using “oracles” to provide external data, but changing an oracle coded onto an immutable blockchain is difficult.

  • The experience with financial contracts shows the problems of rigid enforcement without flexibility. Overall, the passage discusses the promises and limitations of smart contracts compared to traditional legal agreements.

  • AIG’s insurance subsidiary found itself facing huge collateral calls when asset prices declined across the board. It disputed the size of the calls.

  • The CDS contracts it had written provided that losses would be calculated based on observable market prices. But when markets were needed most, they no longer existed as dealers made few trades, so estimates varied widely.

  • Only by negotiating amounts owed case-by-case rather than relying on contractual terms could the onset of the crisis be postponed and its impact softened. This raises questions about the ability of smart contracts to handle unforeseen circumstances.

  • Creating property rights from scratch in the digital world poses challenges around initial allocation and determining who has authority/control over digital spaces/assets. Simply coding commercial transactions does not fully establish enforceable property rights.

  • Proposed strategies like social contracts, market-driven claims, or delegating to “property clubs” still require resolving questions around priority, scope and authority that legal systems currently address through states and courts.

  • Formalizing pre-existing claims risks altering boundaries and benefiting the literate and powerful over marginalized groups, as seen with land titling programs. Digitization faces similar risks of entrenching inequities.

  • The DAO was a venture capital fund built on the Ethereum blockchain. It was designed to operate without a board or human managers, instead giving voting rights directly to token holders.

  • Token holders could propose and vote on investment opportunities. If approved, the smart contract code would automatically implement the investments. This aimed to be more democratic than a traditional corporation.

  • However, the code had a vulnerability that allowed one person to exploit a loophole and steal $50 million worth of funds. This highlighted risks of relying solely on code without human oversight.

  • There was debate around how to respond, with some wanting to roll back the code and others wanting to stick to the principle of “code is law.” Eventually the pragmatists prevailed and altered the code to unwind The DAO and return funds to investors.

  • This set a precedent that the digital code could be changed by humans, weakening claims of absolute immutability. It remains to be seen how this flexibility might be used going forward.

  • Cryptocurrencies like Bitcoin were hoped to create stateless money, but have attracted much speculative investment activity. Bitcoin fluctuated wildly in value and its design actually brings back ideas of unregulated private currencies from the past.

  • Old merchant banks made money by discounting bills of exchange, taking on the risk that the debtor may not pay back the full amount. As long as most debts were recovered, it was a profitable business.

  • Today’s dealer banks similarly act as intermediaries, buying and selling various assets for profit by exploiting differences in pricing. Crucially, major banks have access to central bank money which supports their operations.

  • Cryptocurrencies promise purity from political influences, but are still subject to issues like private credit/debt, price instability, and concentration of power/wealth. People can buy crypto on credit which must be repaid in fiat currency.

  • Trading crypto futures introduces obligations that must be met regardless of price movements, another form of spending unbacked money. Only time will tell who profits and who loses from such speculative behavior.

  • The decentralized verification process for crypto transactions still leads to centralization of power among those with the most computing resources.

  • While scarce, crypto only partially fulfills the functions of money as a stable store of value and universal medium of exchange. It remains tied to the dollar. For crypto to become sovereign money, something must guarantee its value.

  • New digital technologies may allow embedding obligations into currencies’ codes to mutualize losses in a crisis, like contingent convertible bonds, but this remains untested. Intellectual property laws also risk enclosing the digital domain for commercial interests.

  • The US Patent Office had over 1,000 pending patents containing the word “blockchain” in 2018, not including other digital finance innovations. Previously, individuals/small firms dominated patent filings, but now large corporations have taken over.

  • Major financial institutions like Goldman Sachs, Mastercard, and Barclays are aggressively pursuing patents related to blockchain, cryptocurrencies, and digital banking to legally protect these emerging technologies and capture their financial potential.

  • Large banks have also formed consortiums with tech firms to collaboratively develop and exploit blockchain and other digital technologies, though they may not provide fully open access.

  • Incumbent financial institutions have embraced the power of digital technologies like blockchain but are using legal tools like patents to enclose the “digital commons” for their own benefit. How much they are able to enclose will depend on future patent and trade secrecy laws, which historically have expanded intellectual property rights to benefit private industry.

  • There is an ongoing battle between the digital code and legal code over control of these emerging technologies. While the digital code enables more inclusion, the legal code and legacy institutions like courts and legislatures will likely determine which code prevails.

  • Rational choice theory holds that human beings act rationally to maximize their interests and benefits. However, the distribution of wealth and power is better explained by the legal protections granted to certain private assets, not public choice or bargaining with the state.

  • Powerful private interests can obtain control over the state at times, but these are episodic and better described as side effects rather than the basis of power. Instead, powerful interests rely on good lawyers who master the legal code to protect their assets.

  • Modern rights have emerged as private, individual rights that are dependent on but also detached from state power and social preferences. The essence of these rights is their subjective, individual form, not their substance or purpose.

  • Private law, especially contracts, property, corporate and bankruptcy law, provides the “modules” that allow capital assets to be legally defined and protected. It is this legal framework that allows capital to rule through law rather than force.

  • Private law is inherently incomplete and malleable, allowing lawyers creative room to extend legal modules to new types of assets over time in ways that may not consider broader social impacts. As long as the state endorses these new legal definitions, capital continues to be reinforced and extended through the law.

The key points are:

  • Entrepreneurs mint assets in jurisdictions that provide the most flexibility and options through law. Coding strategies have expanded what can be considered intellectual property.

  • Private law is malleable and adaptable, allowing lawyers to push boundaries and develop new legal structures to accomplish clients’ goals. This constantly tests and erodes limits imposed by statutes and precedents.

  • Enforcement of private law is largely left to private parties through lawsuits rather than public agencies. This gives advantaged parties a first-mover advantage as practices can become normalized before facing legal challenges.

  • Superior access to legal expertise advantages some claims over others. Would-be plaintiffs face hurdles in standing and bearing costs that deter challenges. This entrenches capital holders’ control.

  • Private law benefits capital holders through its indeterminacy, emphasis on autonomy and private policing, and first-mover advantages for aggressive coders. Public support of private law is crucial for capital to function.

  • The coding of capital rules occurs gradually through small, private transactions and deals rather than large public reforms. Regulators generally turn a blind eye to allow new coding strategies.

  • Capital rules are often developed outside of public legislatures by private attorneys and arbitrators rather than state courts. Lobbying only occurs as a last resort if other options to advance coding strategies fail.

  • The state and regulators typically play a passive role in capital coding. Sometimes they actively break down barriers or provide subsidies to capital holders through exemptions or tax benefits.

  • Capital interests have generally prevailed over time through this private coding process, although public interests have managed to balance power on some occasions, such as establishing labor rights or social welfare entitlements.

  • Capital rules emerge incrementally through small step-by-step processes rather than sudden revolutionary changes. This allows capital holders to shape the rules in their favor over the long run through lobbying, negotiation and legal interpretation outside of public scrutiny.

This passage discusses several key ideas:

  • In the Middle Ages, having multiple legal systems/court systems to choose from helped limit corruption and state power, as it introduced competition among legal authorities. This is different from economic competition over goods/services.

  • Legal/regulatory competition is not equally available to all. Natural persons are confined to the laws of their country of citizenship, while legal entities like corporations can exploit laws globally. This gives corporations more bargaining power.

  • Private choices in how capital is “coded” in law have largely determined wealth distribution, with little political scrutiny. Law is taken as given rather than something that allocates wealth.

  • Capital relies on state power to enforce contracts/property rights as well as bailouts in crises. This “feudal calculus” privileges capital holders over democratic preferences.

  • For democracy to prevail, societies must regain control over law as their tool of self-governance. This includes limiting legal privileges for capital beyond basic property/contract rights. A first step is refusing new exemptions/preferential treatments for capital.

So in summary, it discusses the power dynamics around legal competition historically, how private capital has shaped laws with political consequences, and ideas for democracies to exert more control over laws that determine wealth distribution.

This passage discusses several proposed strategies to limit the ability of capital/asset holders to manipulate laws and legal structures solely for their own benefit:

  1. Make it more difficult for asset holders to choose the most convenient laws by reducing legal loopholes and opportunities for “legal shopping sprees.” Coordinate among states on reducing conflict-of-law rules that facilitate legal mobility of capital.

  2. Limit private arbitration in areas like investor-state disputes and anti-trust issues where it impacts public policy or unequal parties.

  3. Guard against externalities imposed by capital/asset holders on others through crisis and bailouts. Empower affected parties to seek damages as deterrence against this.

  4. Resurrect old limitations like prohibiting purely speculative contracts as enforceable. Require proof that derivatives are truly for hedging, not speculation.

  5. Pursue these strategies in tandem among democracies to avoid regulatory competition weaknesses. Ideally the US and UK would lead.

  6. Deeply rethink funding of legal education and law firm pay structures to reduce dependence of lawyers on serving capital interests alone.

  7. A strategy of persistent incrementalism may be viable to push back interests of capital holders, as it has advanced them.

The passage discusses different views of rights and their role in economic and political systems. It critiques the current system which privileges negative individual rights that shield capital holdings from state interference. While framed as protecting individuals from the state, these rights have expanded to require positive protection by the state against other citizens as well.

It presents two alternative visions. One is “radical markets” which would do away with legal privileges of capital and subject all decisions to the price mechanism, replacing property rights with temporary use rights that can be unilaterally challenged by higher bids. The other comes from Christoph Menke, who argues rights should not be eternal privileges but temporary empowerments for change, assessed relationally to others’ rights through an open political process, not just market forces.

The passage argues law is central to structuring modern societies and markets, and can be used to either preserve rights and insulate economic life from politics, or turn transitory rights into tools for change. But implementing radically different visions will still require state power and coercion, as altering existing rights claims will trigger resistance needing to be overcome. In the end, there may be no easy solutions.

This passage argues that legal reform may be a viable alternative to rolling back the legal privileges that favor capital holders over other stakeholders. Specifically, it suggests:

  • Legal reforms could gradually weaken capital’s stronghold over laws by extending comparable legal privileges to other assets/stakeholders over time, thereby diminishing capital’s relative value.

  • Coding new rights in law for other stakeholders could help regain democratic control over economic destiny and make the critical role of law in determining asset worth more visible.

  • People as democratic sovereigns, not asset holders or lawyers, should ultimately determine the contents of law. Private coding efforts could be delegated but subject to public scrutiny.

  • Other options are violent revolution or further erosion of law’s legitimacy, but revolutions are less common and the latter trajectory may already be underway. Preserving the rule of law is preferable if legal transformation, not elimination of rights/law, can occur.

So in summary, it positions legal reform as a pragmatic, gradual alternative to rolling back capital privileges that could empower other stakeholders and democratically transform, rather than eliminate, the legal framework over time.

Here is a summary of the article “Property Law: Alienability and Its Limits in American History,” Harvard Law Review 120, no. 2 (2006):385–459:

  • The article examines the alienability of property rights in American history, through both judicial decisions and legislation. It discusses how alienability was treated differently for different types of property, such as real estate, personal property, and financial assets.

  • In the colonial era, alienability restrictions were common, especially for land. Over time, these restrictions were gradually lifted as America became more capitalist and market-oriented. However, some restrictions remained longer for certain groups like married women.

  • In the 19th century, there was a general trend toward greater alienability, though some limits continued to exist to achieve public policy goals. For example, spendthrift trusts were upheld to protect beneficiaries, and mortmain acts restricted landholding by corporations.

  • By the mid-20th century, outright prohibitions on alienability had largely disappeared. However, the article argues alienability is still subject to implicit limits through means like zoning, eminent domain, creditors’ rights laws, and the protection of future interests.

  • The article examines how American property law historically balanced competing interests of autonomy, morality, dependency, and distributive justice in establishing the permissible limits of alienability for different kinds of property over time.

Here is a summary of the provided URL:

The University of Arizona law school offers an Indigenous Peoples Law and Policy Program. The program focuses on issues affecting Indigenous communities in the United States, Canada, Latin America and around the world. It provides students opportunities to study federal Indian law, international Indigenous peoples’ rights, tribal economic development and governance. Students can specialize in areas like natural resources, cultural property or children’s issues. The program aims to train the next generation of advocates for Indigenous peoples. It offers both LLM and PhD degrees related to Indigenous law and policy. Clinical opportunities are also available for students to gain practical experience working with tribal nations and organizations.

Author Photo

About Matheus Puppe