TOWARDS AN ANTI-CAPITALIST CORPORATE ACCOUNTABILITY
BY SYDNEY LANG
STUDENT AT MCGILL FACULTY OF LAW
In 2014, I got involved with mining justice work in Toronto. The majority of mining companies around the world are headquartered in Canada and the Mining Association of Canada has dubbed Toronto the “global centre for mining finance.” In resisting Canadian mining operations abroad, we address that we, as Canadians, are complicit in a system of extraction and exploitation, and that we profit from the mining industry. Canadians who do not profit directly from the mining industry still benefit: our social democratic institutions, such as the Canadian Pension Plan, invest public funds in these same companies.
In Toronto, I organized with a grassroots network whose members had relationships with communities, often in Latin America, who were resisting Canadian mining on their territory. This enabled the group to respond to the communities’ calls for support and target companies headquartered in Toronto as a form of transnational solidarity. I (in part) came to law school to develop tools for doing this work. I was inspired by the Hudbay, Chevron, and Nevsun cases but also knew that court cases were only one aspect of this movement. I was guided by the question: How do we hold corporations accountable?
There are countless mechanisms in place that seek to regulate corporate accountability, from Corporate Social Responsibility (CSR), to international guiding principles, to litigation. There are also actions being taken outside of these frameworks, from protest, to boycott, to disruption. However, the majority of events that I have attended recently on the topic of corporate accountability analyze the strength of a particular mechanism and suggest next steps within these same frameworks. Maybe the solution to my question will involve multiple mechanisms putting pressure on corporations from multiple directions: for example, supporting increased legislative action while also pushing for regulation on an international level. Or maybe we should think about how those mechanisms are rooted in systems that don’t support our ultimate struggle.
There are academics, lawyers, and organizers writing extensively on the topic of corporate accountability. I in no way want to diminish the complexity of their work but rather wish to reflect on my experiences as an organizer and law student and to share my ideas on how we might rethink the work that we are doing moving forward, inside and outside of the aforementioned structures.
An Anti-Capitalist Corporate Accountability
The idea of corporate accountability itself is a contradiction. Often, the harm caused by the company we are resisting is a result of the company’s existence in and of itself. For example, we might oppose a tailings pond breach as a result of a mining company’s negligent safety protocols, but we might also oppose that the company set up operations on that land in the first place, displacing the local population, creating irreversible environmental damage, and then profiting. Eduardo Galeano states that Latin America “continues to exist at the service of others’ needs,” its resources “destined for rich countries which profit more from consuming them than Latin America does from producing them.” It is resistance to this systemic inequality, or “chain of dependency”, that must be at the foundation of our work on corporate accountability. However, we often lose sight of this when pushing for stronger regulations or lobbying the Canadian government to take action against corporate harm abroad.
Corporate accountability work thus straddles an interesting space for myself and other organizers: we try to regulate corporations while also questioning their existence and role in society. Sometimes this can feel like reform work, which is tricky for anti-capitalist organizers. John Peterson states that we must “support any and all reforms that improve the lives of the workers and the poor, even within the limits of capitalism.” But we cannot believe that capitalism can ever be “reformed out of existence.” We need to find a balance between supporting calls for regulation, developing case law, and existing soft law mechanisms while remembering that they are only temporary solutions to the problem of capitalist and imperialist extraction. An interesting example of this is movement lawyering. Purvi Shah describes movement lawyering as an intentional collaboration where “lawyers can use our traditional tools—whether impact litigation or direct services or policy work—paired with grassroots organizing and social movements to lead to more systemic transformation.” It recognizes that the law can act as a tool to support a community but ultimately, it is not a solution to the systemic oppression in which a community’s challenges are rooted.
Do the Work on Your Own
The summer after my first year at law school, I met with a professor to talk about corporate accountability work in the legal context. He told me that I won’t be taught how to do this work in law school. As Dean Spade said, “the things that interest you about law are not what the classes are about.” This professor encouraged me to take corporate law courses, like tax and securities, and then to do the rest of the work on my own. This involved applying what I learned in class to the systems I was resisting outside of it; using corporate research skills to understand how corporations evade liability; understanding the corporate structure and how it operates.
It is important to create spaces where we can think critically about what we are learning in class and apply that to issues that we think are important. In the Fall of 2018, I co-facilitated a Student-Initiated Seminar on the topic of corporate accountability and globalization. My personal intentions for this course were to create a space where students could learn about human rights and social justice issues while developing corporate law research skills. I also learned from the course that in these spaces we create, we must think critically about our role as law students and future lawyers and reflect on where we fit in the transnational movement for corporate accountability.
This past year, especially during organized recruitment, I saw classmates with long-held dedication to human rights and public interest law accept positions with corporate law firms.
“I don’t love the work that the firm does, but it’s good training,” they would tell me after. I understand the pressures that push some students to accept these positions: money, social capital, a chance to get your foot in the door, networking, training. However, law school also pushes us into these positions and certain ideas of success. It is important to be able to imagine other career paths after graduation, but it is also important that students receive corporate law training in law school—we can learn about corporations without working for them. The spaces I identified above that encourage critical and structural thinking and training could potentially counteract the belief that experience in a corporate firm is the most strategic or valuable experience required for a fulfilling law career, in public interest law or otherwise.
I’ve been thinking more about who organizes and who litigates; who supports a movement and who advances it in court. How and why do some people have more access to one space than the other? Imagine if there were mandatory business and corporate law courses at law schools that focused on issues of corporate accountability and human rights. These skills are important for students who want to pursue a career in public interest law or to practice movement lawyering, but the courses where we develop these skills can often feel intimidating and unwelcoming. This could be attributed to the gendered nature of corporate law, the jargon, and the inaccessibility of those spaces to some students. Talk of corporate accountability and human rights issues can act as an entry point into conversations about corporate law for those students. The fact that our seminar was co-facilitated by students was important in resisting some of the structures that regular law courses end up adopting. Now imagine a law firm, or collective, that is grounded in principles of community-based and movement lawyering. Lawyers and organizers would be trained in corporate law but would not work in corporate-law structures... How can we build up spaces where we do this work on our own? What could this space look like and how can we institutionalize it without co-opting it? Should this space be institutionalized, or are there alternatives that exist outside of the corporate university? How can we do corporate law in a way that is anti-capitalist, feminist, and community-informed? These questions should guide us as we question our role as law students and future lawyers, and as we find our place working within and for the movement for corporate accountability.