From the Fellows: Issues and developments in law and social policy

Daniel Brantes Ferreira, PhD, is a professor at Universidade Cândido Mendes and Vice-President for Academic affairs at the Brazilian Center of Arbitration and Mediation (CBMA), where he is an arbitrator.

Jennifer L. Gaynor, PhD, works on Southeast Asia and its surrounding seas from the seventeenth century to the present.

Paul Linden-Retek, PhD, JD, is a UB Law Lecturer in Law & Society and his research and teaching interests are in modern and contemporary political theory, international human rights, the study of constitutional democracy, and critical theory.

Charles J. Whalen, PhD, is an economist with a career spanning three decades, who has contributed to national economic policy discussions, equitable regional development, and business success.

What is the most important issue in law and social policy research right now?

Ferreria. The law's key feature is to solve conflicts and keep a peaceful society as best as possible. Thus, during periods of crises (which is what we are going through in the pandemic), while health scientists look for a vaccine, we should research the best ways of conflict solving outside the Judiciary. We should also investigate the best ways of solving conflicts through technology (e.g. researching how technology affects communication, the best use of the virtual environment and if technology can affect the due process of law). Therefore, I've been studying and publishing about the use of technology for alternative dispute resolution (especially mediation and arbitration). International cooperation is also vital. In that way, participating in webinars and exchanging experiences cross-culturally broadens your research field. In a nutshell, lawyers and law professionals must play their role as peacemakers and community organizers as they never did before. 

Whalen. Since we confront a multitude of challenging issues, it’s difficult to choose one over another. That said, my work has long centered on rising U.S. economic insecurity, a problem traceable to financialization, defined as ‘the increasing role of financial motives, financial institutions, financial markets, and financial elites in the operation of the domestic and international economies.’ The dominant motive is shareholder value; the dominant institutions are asset-management firms (such as hedge, private equity, and mutual funds); the dominant markets operate by arms-length transactions, not borrower lender relationships; and predation is the prevailing instinct of elites, who not only prey on companies and the state, but also use those institutions to fleece the rest of us, especially workers. Thus, financialization and increased worker insecurity are two sides of the same coin. Even worse: Financialization and insecurity weaken democratic institutions and erode the ability to develop and administer policies in the public interest; they also obstruct efforts to address crucial matters ranging from social injustice to climate change.

Linden-Retek. Democratic societies continue to face a historic task of defending political equality from the grip of intense material (racial, economic, gender, ecological) inequalities. The work socio-legal scholars might perform in the service of this task is immense and varied, but let me suggest one particular avenue of focus and concern. We would do well to admit that the terms of equality and inequality are today posed simultaneously in domestic and international frames of analysis, and the relation between these two frames requires rather sensitive and dynamic scrutiny. Calls to reclaim national democratic control over the economy, for example, might encounter unjustified structural constraints from international financial regimes or, alternatively, might rely on continuing extractive relationships abroad to secure the domestic conditions of self-determination. On the other hand, the form of internationalism that models a global social contract on its domestic analog disregards the salience of diverse interpretations of public value across the world’s polities and their effect on the durability of international commitments. As efforts to combat climate change have shown, the mere fact that certain problems are globally shared—no matter how ruinously—is on its own neither a straightforward source of political-cultural consensus nor a roadmap for legal-institutional guarantees. Impasses like these suggest the need for law and social policy research to trace the complexity of transnational entanglements and, specifically, the textured transformations of sovereignty that attend this contemporary period of globalization.

This critical mode of analysis that centers transnational entanglement in law’s fundamental ontology is familiar to post-colonial studies and, specifically, Third World Approaches to International Law. Socio-legal scholars would be well-served by extending the methodological creativity of these fields—recommending, for example, comparative sociologies, anthropologies, and ethnographies of law that would more nimbly identify variations and contingencies in the functioning of state institutions; study how interpretations of public value evolve and suggest the conditions of their possibility; and attune us to forms of harm heretofore hidden.

To connect the dangerous traffic stop in the United States, for example, to institutions of racial capitalism, which have a global reach in space, and in time bear relation to struggles of decolonization and the development of a fair international system of states and economies. Or, in the context of refugee law and asylum, to connect the reasons people flee, and the conditions they meet on their flight, with the way some (we) have decided to live (to militarily intervene, to conduct wars on the drugs we consume, to cooperate with friendly but despotic foreign governments, to secure markets for what we make, and to protect our patents for even the most life- saving or liberating of goods). These are stories socio-legal studies must endeavor to creatively discern, analyze, and convey—across the fields of domestic constitutional and administrative law; international economic law; international human rights law, to only begin to take stock. The task, then, is to connect legal imagination with political mobilization.

Ferreria. I've been writing and lecturing on alternative dispute resolution, legal education, and clinical legal studies, primarily through the use of technology from a comparative law perspective. At the beginning of the pandemic, we took some time to prepare and get used to the new ways of social relations. Of course, this all has a deadline, but society realized that technology, if well used, can be of great aid for conflict solutions (online dispute resolution - ODR) and legal education. Thus, I think people trust more in e-mediation procedures, virtual arbitration hearings, and online education. Much needs to evolve, and both conflict solution professionals and professors of all areas have to prepare more to improve their skills on how to deal with the virtual environment rhetoric. 

Gaynor. From my particular interdisciplinary location, the most important law and social policy research remains fearless investigation of the causal connections between in/justice and histories of inequality, as well as how systems of political economy interact with the environment. In relation to my own work, over the past few years I have been mentoring advanced PhD students and junior scholars who work on law, society, and justice (including environmental justice) in Asia’s present and past, and have been fostering meetings and publications related to histories of capture, bondage, and forced relocation in Asia. Over the coming months and years, in my view, the most compelling conversations will sift through aspects of these histories that are not simply reliant on, or derivative of, encounters with folk from that peninsula on the western tip of the Eurasian landmass, before engaging in meaningful comparisons and understanding historical convergences and synergies.

Whalen. I’m currently editing two books that place financialized capitalism and related issues at the center of political economy. A believer in standing on the shoulders of giants, I use the work of early twentieth-century progressive economist John R. Commons as a foundation for the first book, and the work of late twentieth-century financial economist Hyman Minsky as a foundation for the second book. Also, concerned about our current Age of Unreason (dysfunctional political system, ineffective policymaking and governance, and complacency in the face of a drift toward authoritarianism), I’ve been exploring lessons from Commons’s career-long effort to chart a “Reasonable Value” course between socio-political extremes. Meanwhile, because the COVID-19 pandemic exposes various harmful socioeconomic consequences of financialization, that pandemic has affected both ongoing and anticipated financialization research. 

Linden-Retek. The global pandemic, among its many effects, has placed greater scrutiny on the free movement of people. While in the first instance this has ushered in sweeping prerogatives of the sovereign state to control movement, it has also reminded us of the material and ethical obligations of globalized society. When we emerge from the pandemic, I have hope that we will be in a position to better affirm these obligations and reclaim law’s normativity in this space of textured international entanglement.

I have one particular image in mind here, which I have always found deeply compelling and poignant—and which speaks to this hope. It is a mural painted by the Italian artist Blu on a wall in Melilla, Spain. The city is an exclave on the northern edge of Morocco: politically European, geographically African. Surrounded by border walls, Melilla is a main point of entry for sub-Saharan African migrants seeking access to Europe.

Blu’s mural renders the European Union seen from the outside in, recasting the EU flag—12 golden stars on a field of azure, symbols of unity and solidarity among European peoples—instead as a ring of braided wire, with 12 sharp, golden barbs. Around this ring gathers a large crowd. Bathed in blue, they are innumerable, yet distinctive. Some carry rucksacks; others perch infants on their shoulders; they hold one another’s hands. And inside the wire, meeting their gaze is a blue emptiness, nondescript and indifferent—an impossible and hollow dream. 

What I find so remarkable in Blu’s mural is its dual commentary, the relation it illustrates between the cruelties of Europe’s migration regime and the hollow hope of the European Union itself—its internal life as a nascent cosmopolitan society. These become two edges of the same slip of wire, two articles of the same inadequate legal order. Insofar as Blu’s Europe is walled, it is also unmistakably empty.

I have one particular image in mind here, which I have always found deeply compelling and poignant—and which speaks to this hope. It is a mural painted by the Italian artist Blu on a wall in Melilla, Spain. The city is an exclave on the northern edge of Morocco: politically European, geographically African. Surrounded by border walls, Melilla is a main point of entry for sub-Saharan African migrants seeking access to Europe.

Blu’s mural renders the European Union seen from the outside in, recasting the EU flag—12 golden stars on a field of azure, symbols of unity and solidarity among European peoples—instead as a ring of braided wire, with 12 sharp, golden barbs. Around this ring gathers a large crowd. Bathed in blue, they are innumerable, yet distinctive. Some carry rucksacks; others perch infants on their shoulders; they hold one another’s hands. And inside the wire, meeting their gaze is a blue emptiness, nondescript and indifferent—an impossible and hollow dream. 

What I find so remarkable in Blu’s mural is its dual commentary, the relation it illustrates between the cruelties of Europe’s migration regime and the hollow hope of the European Union itself—its internal life as a nascent cosmopolitan society. These become two edges of the same slip of wire, two articles of the same inadequate legal order. Insofar as Blu’s Europe is walled, it is also unmistakably empty.

I want to suggest that one of the few ways we have—perhaps the only way—to confirm that we continue to live out the civic character of political membership in a globalized world is to allow the stranger a place to belong. The 1951 Refugee Convention is each day rendered more precarious by dual movements to deterritorialize the reach of state coercion and to reterritorialize the scope of basic rights. In such a time, socio-legal scholars must aim to breathe new life into international law’s ambitions. Tendayi Achiume's work conceiving migration as decolonization, for example, is a vital step in this direction. In my current work on the 'safe third country' concept—a long-standing hallmark of the EU's Dublin Regulation and recently employed aggressively by the Trump administration amidst resistance by federal courts, I’ve tried to similarly rethink the meaning of refugee and human rights law. I cast these bodies of law as invaluable tools not only to protect the essential rights of those in danger but also to preserve the democratic responsibility of those who receive them. As the refugee is saved, so, too, is the citizen. This is a hope and notion—I should add—that the city and people of Buffalo, it seems to me, know well.