Law’s place in economic geography: Time,space,and methods

Abstract

In this piece, I make the case for deeper engagement with law and legal methodologies in economic geography. Recent work in and beyond geography has demonstrated that law is constitutive of capitalism. Yet, despite excellent research on many particular spatio-legal topics, there have been few attempts to conceptualize a legal approach to economic geography in any sustained way. Here, I suggest that incorporating law and legal methodologies into existing economic geographic analyses can deepen our explanations of spatio-temporal economic variegation, opening up new research questions and methods for economic geographers and expanding our conceptions of economic governance, agency, and knowledge.

While explicit and implicit work on law and legal practices has long had a role in economic geography, this has most often involved discussion of “regulation.” Yet, while regulation is very important, law (in the form of contracts, case law, statutes, administrative rules, legal treatises, and more) does far more than permit or prohibit certain economic activities (Potts, 2020a). As a recent burst of work on law and economic geography has shown, it also mediates the production and distribution of value (Ashton, 2014; Kay, 2016; Kear, 2017), turns things into assets (Wójcik, 2013), assigns spatial dimensions to intangible financial processes (Knuth and Potts, 2016; Potts, 2020c), and defines the boundaries of markets (Christophers, 2014, 2015). In short, law is not simply auxiliary to but constitutive of capitalism (see also, Pistor, 2019).

This means law is more than just one among many potential topics of study for economic geographers. Rather, it can be fruitfully integrated into nearly any economic geographic analysis. Yet, despite excellent work on many particular spatio-legal topics, there have been few attempts at more sustained conceptualizations of a legal approach to economic geography. Important exceptions include Clark’s (1989, 1992) early work on economic regulation, as well as on theorizing law and human geography more broadly; Blomley’s (1994, 2003, 2020) foundational work on the coproduction of law and space, and especially property; Barkan’s (2011, 2013) attention to the specificities of law in shaping transnational corporations and neoliberal capitalism; and Christophers’ (2015, 2016) analyses of the law’s roles in bounding markets and in mediating capitalism’s cyclical crisis tendencies. In this paper, I aim to contribute to this project by discussing three areas in which attending to the nexus of law, geography, and political economy has important methodological implications for economic geographers. The first two sections consider how focusing, respectively, on the distinctive temporalities and spatialities of law complicates certain common assumptions about capitalism, while opening up new economic geographic research questions. The third section turns more practically to how centering law expands the range of actors and sources that can be used to investigate these and other questions, while also considering some of the distinctive challenges studying law poses.

Time

Law is constitutive of capitalism, yet legal processes have very different temporalities than economic processes per se. We often think about the latter as moving in cycles, from short-term business cycles, to decades-long swings, such as those between more and less monopoly versus competition (Christophers, 2016), or more and less productive investment versus financial over-accumulation (Arrighi, 2010). At the same time, over the long durée, capitalism also evolves in secular, path dependent ways that overlap with and inflect these cyclical changes.

Law, in contrast, rarely moves cyclically. Different legal forms have different temporalities, but they tend to change if not in linear then in meandering ways. These changes are shaped by very different forces and logics than those most commonly associated with capitalist change (e.g. falling profits, increasing inequality, technological innovation). In common law, for example, past legal decisions heavily influence present and future cases, although always in open-ended, non-deterministic ways shaped by both changing socio-political dynamics and changing legal norms and theories. Legislation is less formally beholden to past law, although it is often constrained by founding constitutions or codes. It is also directly subject to shifts in popular opinion and partisan election cycles. International rules have their own, usually very slow, temporality, shaped by geopolitical economic interests and the difficulties of forging agreements among (highly unequal) governments.

The mismatch between legal and economic temporalities has been most widely recognized in cases of “regulatory lag,” in which economic changes outrun policymakers’ ability to respond. Less attention has been paid to the ways economic change can be delayed by the slowness of legal change, as, for instance, in the case of very gradual contractual innovation (see, e.g. Gulati and Scott, 2013). More broadly, thinking about law’s distinctive temporal dynamics raises potential new research questions for economic geographers, including, for example, about how the temporality of legal change might disrupt or complicate firms’ abilities to respond to economic cues, or how long-term legal changes help explain key differences between successive cycles of financialization, or between laissez-faire liberalism and neoliberalism.

Economic geographers interested in such questions can benefit from the fact that legal scholars themselves write a lot about legal history. This provides a rich and accessible source of evidence—though always with the caveat that these histories are almost always very partial, largely de-contextualized, and designed to legitimize the legal status quo, making re-contextualization an important task in itself.

Space

Law, especially in the form of regulation, has long been important to how geographers understand economic differentiation and variegation across space (Peck and Theodore, 2007). This has perhaps been best explored by geographers in relation to distinct national legal regimes, including those of offshore jurisdictions (see, among many others, Clark et al., 2015; Haberly and Wójcik, 2017; Poon et al., 2018). Yet, there remains much to be said about precisely how law’s own distinctive spatial dynamics shape capitalist geographies. Here, I offer just two brief observations.

First, legal spaces and jurisdictions do not sit cleanly side by side, nor are legal rules at different scales neatly hierarchical (i.e. moving from municipal to state to national to supranational scales with ever-increasing authority). Rather, legal spaces overlap and intersect in far messier ways, with contested claims to jurisdictional authority and divergent or even contradictory legal rules potentially governing the same activities (de Sousa Santos, 1987; Valverde, 2009). This means geographers interested in law’s role in producing economic space must look not only for “the” relevant legal authority for a given activity, but potentially for multiple, overlapping, cross-scalar legal rules or regimes, whose precise effects can only be investigated empirically.

Second, even in the most sophisticated work, the dominant tendency within economic geography and related disciplines is still to see laws and legal power as more or less contiguous with national political borders—and conversely to see transnational economic dynamics as escaping and even undermining state regulations and authority. Yet, while this can be important, such analyses miss key transnational legal dynamics. For one thing, many “national” legal rules, from liberalized capital regulations to the rules defining special economic zones, are designed to facilitate or attract transnational capital flows, making them central to the production of transnational economic space. For another, certain legal spaces actually reach beyond state borders, extending the authority of especially powerful jurisdictions while impinging on that of others (Pistor, 2019; Potts, 2016, 2020b).

Taken together, these observations alter our sense of “where” economic dynamics occur. Even “local” economic phenomena take place not simply within local legal spaces, but rather within overlapping and sometimes contradictory local, national, transnational, and international legal spaces. Conversely, transnational economic phenomena do not simply escape national laws and regulations, but rather remain rooted in and are governed by multiple (sub)national jurisdictions. These insights open up important new research questions for economic geography, including about how legal pluralism complicates assumptions about economic governance, and about how the legal geographies of, for instance, a transnational supply chain, differ from its underlying material economic geographies.

Agency, sources, and expertise

Integrating the legal into economic geographic analysis not only opens up new research questions about the spatio-temporal dynamics of capitalism and other topics, but also broadens the toolkit of sources and methods available for investigating such questions. While there is no single approach to engaging law, here I focus on three important areas in which law suggests particular methodological considerations: defining economic actors, logics, and motivations; reading legal texts; and managing legal expertise.

Traditionally, the primary agents in economic geographic scholarship have been firms (or whole industries), managers, and shareholders; workers and unions; policymakers; and (for urban economic geography) developers and boosters. Taking law seriously implies expanding our sense of economic agency to include more “state” actors, from judges to legislators to treaty negotiators, as well as a range of non-state actors, like lawyers and law firms, litigants, legal think tanks, and international judges or arbitrators. This not only widens the range of potential interviewees and ethnographic subjects, but also our sense of what cultural and ideological formations, motivations, and interests are relevant to shaping economic processes and decisions. It means, for example, that it is not only neoclassical economics and American business schools that shape economic logics, but also legal theory, legal professionalization, and jurists’ sense of legitimacy within their own social milieu. An important research goal is thus assessing the extent to which legal logics overlap with, differ from, or contradict other economic logics.

This expanded understanding of economic agency also opens up another important source for economic geographic research—the vast quantity of legal documents produced by these actors. Of course, corporate reports, SEC filings, and other documents have been important for many economic geographers. But legal documents are not only often more easily accessible than corporate documents; they also have a very particular relationship to legal change. Though always mediated through interpretation and (selective) enforcement practices, law is, to a large extent, enacted through texts (e.g. judicial decisions, legislation, contracts, and legal scholarship). These texts may or may not reflect the “actual” views of their authors. Rather, they are better understood as strategic acts, designed to have certain effects on the world. Whether they have the intended effects is a question for empirical investigation. While the moment of inscription rarely marks the origin of important legal changes, moreover, legal documents do function as key points of inflection in ongoing legal processes, making them useful for investigating legal-economic change over time.

Of course, incorporating legal methods into economic geography poses certain challenges—most obviously, it requires digesting a lot of new knowledge in a domain characterized by disciplinary closure and technical expertise. This is not an insignificant task for those without law degrees, although I do not think any particular aspect of law is especially more complicated than, say, the inner workings of interest rate swaps or collateralized debt obligations, about which many economic geographers are self-taught experts. Perhaps the most distinctive challenge is the sheer volume of legal writing, which is both an advantage and a disadvantage. On the one hand, it offers a readily accessible source of information on many topics. On the other, this sea of publications can be overwhelming. All these challenges can be overcome by the committed researcher, of course, especially in collaboration with sympathetic legal scholars. But they can also be eased for new economic geographers through more graduate-level training on strategies for conversing with legal actors, accessing legal databases, and navigating legal texts (it turns out, for instance, that law review articles are extraordinarily repetitive!).

Conclusion

In sum, integrating legal methods and analysis into economic geography has implications for understanding spatio-temporal capitalist variegation, economic governance, and economic agency. Exciting work on some of these themes is already helping expand the field in this direction, but there remains much to be done. Such work will not only nuance our descriptions of capitalist variegation, but also contribute to building stronger explanations of how, why, and by whom variegated economic activity is produced and governed. At a moment of intense debate about the future of economic geography, moreover, incorporating law into the field opens up potentially revitalizing new areas for inter- and intra-disciplinary collaboration not only with legal scholars (including in the growing “law and political economy” movement (e.g. Britton-Purdy et al., 2020)), but also with legal geographers working on other types of questions (e.g. Blomley et al., 2001; Braverman et al., 2014; Cuomo and Brickell, 2019), and with economic historians, sociologists, and anthropologists already studying the intersection of law and political economy without engaging space in the ways geographers do (e.g. Appel, 2012; Krippner, 2011; Slobodian, 2018). Economic geographers have a lot to gain from such collaborations—and a lot to contribute.