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How ‘big law’ makes big money (nybooks.com)
108 points by prostoalex 20 days ago | hide | past | web | favorite | 61 comments

> In the twenty-first century, examples of this modern particularism are rife. Pistor describes, for instance, the exceptions from general bankruptcy rules negotiated by the derivatives industry. In normal bankruptcy cases, secured creditors can claim access to their collateral first, and unsecured creditors have to divide what remains of the company or estate. For fast-moving financial transactions, that procedure is too cumbersome, so the collateral pledged in derivatives deals is granted an exemption from the usual queue of claims. In cases of bankruptcy, it is transferred directly to the counterparty, leaving unsecured creditors empty-handed.

I'm not sure what the issue is here. In both scenarios, the secured creditors walk away with the pledged collateral, and unsecured creditors are left to divvy up any remaining assets.

It sounds like the only difference is that the process is expedited, or am I missing something? (note: I am a former lawyer, but did not practice bankruptcy law)

There’s a couple of deviations from standard practice here:

- In theory, secured creditors should be ahead in line and always get paid ahead of unsecured creditors. In actual practice, sometimes unsecured gets paid something even as secured creditors take some loss. One reason is because you end up before a bankruptcy judge, and unsecured creditors can fight for their claim and tie things up, so the secured creditors pay the unsecured ones something to go away

- Related to above, security is usually fixed assets (like a factory), rather than posted cash collateral. Making derivative collateral special means it’s even better than normal secured assets-especially since your factory is a depreciating asset while tied up in court

So yeah, one way to look at it is 'security means you’re paid first, what’s the problem?' but posted derivative collateral under an ISDA can be actually better than normal security.

I guess it's sort of like Transfer on Death (TOD) accounts, which receive special treatment in estate law. In a contested inheritance people can still make claims to TOD assets, but because they automatically transfer to a particular recipient upon notice of death it changes the facts on the ground, both from a legal posture but also just as a practical matter. For example, a bird in the hand is better than two in the bush--the receiver of TOD assets may be willing to walk away with less than they might be able to claim simply to avoid litigation.

It also makes things easier and cheaper for the fiduciary (e.g. bank, insurer, etc) because they don't have to be mired in any litigation. They transfer the assets to the TOD beneficiary as a matter of course and nobody can challenge it; if you don't like it you sue the nominal beneficiary.

>- In theory, secured creditors should be ahead in line and always get paid ahead of unsecured creditors.

Some classes of unsecured creditors that are paid out before others are employees, pensioners or people with support claims.

These people often have what's known as 'super priority' status. So not only are 'some' unsecured creditors afforded more security; they're often the ones society deems at risk, with the least leverage and the most need for the money.

This is a book review of Katharina Pistor's "The Code of Capital: How the Law Creates Wealth and Inequality". The review is written by Adam Tooze, himself the author of the excellent "Crashed: How a Decade of Financial Crises Changed the World" among others.

From the perspective of a tech person interested in the long backstory to modern capital management structures (special purpose vehicles, trusts, etc), Pistor's book is outstanding. Exceptionally well written, and exceptionally informative. One of the best books I read in 2019.


“There is an estate in the realm more powerful than either your Lordship or the other House of Parliament,” one Lord Campbell proclaimed to the peers in the House of Lords, in 1851, “and that [is] the country solicitors.” It was the lawyers, in other words, who kept England’s landed elite so very, well, elite: who shielded and extended the wealth of the landowners, even granting them legal protection against their own creditors. How did they pull off this trick? Through a nimble tangle of contracts, carefully and complicatedly applied, as Katharina Pistor explains in her lucid new book, The Code of Capital: by mixing “modern notions of individual property rights with feudalist restrictions on alienability”; by employing trusts “to protect family estates, but then [turning] around and [using] the trust again to set aside assets for creditors so that they would roll over the debt of the life tenant one more time”; and by settling the rights to the estate among family members in line for inheritance. Solicitors maximized their clients’ profits and worth through strategic applications of the central institutions at their disposal: “contract, property, collateral, trust, corporate, and bankruptcy law,” what Pistor calls an “empire of law.”"

This is a Marxist screed. And by that, I do not mean to be dramatic, portraying anything to the left of University of Chicago law & economics as Marxist. I mean, it is literally Marxist, objecting to modern law's emphasis on private rights:

> On the one hand, the law codes the original violence of enclosure, such that something that was everyone’s becomes one person’s legally protected private property in perpetuity.

For those not familiar with Marxism, a recurring grievance is "enclosure"--the process by which the commons (hunting and grazing land) became turned into private property. It's hard to respond to the article, given that doesn't actually say much of anything, but I wanted to highlight one passage in particular:

> In the liberal account of property rights, the crucial question is how far law and the courts can protect private property against the capricious, self-interested, and short-sighted acts of the government. Individual property must be protected, in this view, not only because of the inalienable right to enjoy what one owns without fear of damage or theft, but also because if there were no guarantee of this right, economic progress would be impossible. Few would make an investment in a business that couldn’t seek redress for major acts of vandalism or larceny.

The article is not wrong. This is the basic principle underlying American law and our Constitution. Where the article is wrong is to suggest that there is any problem with it. When the Soviet Union and China tried to undo "enclosure" and create communal farms, tens of millions of people died. To the extent these countries reduced inequality, they did it by making everyone poor. By contrast, country after country has gone from poor to wealthy through a simple formula: rule of law, protection of private property rights, and unleashing of capital.

I cannot emphasize enough that there are no proven alternatives to this legal framework. There are no wealthy countries that have legal codes that depart from this concept. Even "social democracies" like Denmark have Constitutions that provide:

> The right of property shall be inviolable. No person shall be ordered to cede his property except where required by the public weal. It can be done only as provided by Statute and against full compensation.

The Constitution of Sweden provides an even stronger guarantee, not only against expropriation, but against restrictions on use that significantly diminish a property's value:

> Art. 18. The property of every citizen shall be so guaranteed that none may be compelled by expropriation or other such disposition to surrender property to the public institutions or to a private subject, or tolerate restriction by the public institutions of the use of land or buildings, other than where necessary to satisfy pressing public interests. A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for his loss. Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by the public institutions in such a manner that ongoing land use in the affected part of the property is substantially impaired, or injury results which is significant in relation to the value of that part of the property.

TFA claims that "Marxist" is the wrong reading of this argument:

If instead, like Pistor, we attribute the production and distribution of wealth to a combination of legalized theft and an elaborately veiled ponzi scheme that moves money around without creating anything of real value, we are certainly speaking the language of the left, but it is a language with a distinctly populist tinge. A true Marxist would at this point interject that only a politics that grasps exploitation at its root, not in the sphere of distribution but in the sphere of production itself, can really offer any escape from prevailing conditions of inequality. But Pistor holds Marxism at a distance both analytically and politically. Understandably enough, she dismisses any prospect of a Marxist revolution against capitalism. Leftist populism, on the other hand, is enjoying a substantial vogue both in Europe and the Americas. And perhaps the best way to read Pistor is as offering a highly sophisticated program for a leftist economic populism.

ISTM your repetition of constitutional platitudes doesn't really address these points. Sure, we shouldn't take properties from the people who own them. Except... that happens all the time in this "best of all possible worlds". The way to retain one's property isn't to trust the Constitution. The way to retain one's property, and that of others as well, is to hire the right lawyers. Which may be the point of this book?

I'm saying the article is a Marxist screed, not the book the article is talking about. Nobody who talks about the "violence" of "enclosure" is anything other than a Marxist. It’s expressly Marxist terminology. And I’m flagging that because if you’re not a Marxist, it’s hard to even follow the reasoning of the article.

Sure, and nobody who talks about "natural monopolies" is anyone other than a telecom lawyer. The fact that we have different working vocabularies doesn't mean we can't communicate. I'm not a Marxist, and I'm reading TFA with interest.

A careful reconsideration of how the Law adjudicates questions of property and how it changes hands might lead to a complete Bolshevik confiscation of all the McMansions. That's unlikely, however. It could be that nothing comes of this line of thought. What I would hope, instead, would be for small improvements to be made, so that some of the vast advantages enjoyed by well-lawyered capitalists might be eliminated in favor of a more just and fair system for everyone.

Are you claiming that "enclosure" is a Marxist term, or that the notion that the historical process of enclosure involved a significant amount of violence is a Marxist notion?

Everytime I see an elemental critic of the these legalisms and its schemes, there is always someone trying to play the marxist card. Someone who hasn't read a single line of Marx's books. This is not marxist. And if it were marxist then: so what?

Eric A. Posner and E. Glen Weyl propose Non-Marxist hyper-market alternative in their book the Radical Markets. https://press.princeton.edu/books/hardcover/9780691177502/ra...

It's called Common Ownership Self-Assessed Tax (COST). http://radicalmarkets.com/chapters/property-is-monopoly/

> This is the basic principle underlying American law and our Constitution.

So what? Can I call the idea "American colonialist" and dismiss it as categorically as labeling something "Marxist" allows you to do?

In fact, the article doesn't push back against that idea in itself. It pushes back against its primacy, certainly, but it accepts the underlying premise of state power underwriting private ownership. You'll see this when you read the very next paragraph:

> What is decisive is which private claims to property governments have been willing to underwrite with the force of the law... (emphasis in the original).

Following that, the author explains how the legal constructs that define "property" in the privately enclosed sense are applied in the age of capital. But nowhere is the author arguing in favor of undoing enclosure and thereby killing tens of millions of people.

You're so busy building that strawman that you miss the main point of the article, which follows next. Far from being a hamfisted argument against capitalism (it doesn't even suggest that there are any alternative frameworks that create wealth) the article turns to the "exceptions and reservations" that lawyers have managed to infuse "standard" capitalist frameworks with, to the point that bankruptcy (for example) may no longer actually be accomplishing the protection of capitalist interests that it's intended to under the enclosure model.

And then in the last part of the article, the author criticizes the book, but also draws out how it specifically differentiates its arguments from Marxist ones. But I'm not convinced you even read that far.

Is any objection that questions the emphasis of "modern law" on private property Marxism?

Georgism, which most people would not define as Marxist, has similar objections to the origins of land ownership, and every defendant against eminent domain claims to be victim of some Soviet dystopia. The book seems to be making a firmly legal realist critique on the implementation of these principles of private property that undergird our society, rather than attacking the principles in general.

No, but this particular article is Marxist and self-consciously so. As to Georgism—it is predicated on private ownership of property.

Didn't Stalin have gas wagons and mass purges? Seems a bit disingenuous to claim that Marxism killed millions of people while entirely ignoring his unchecked dictatorship.

Yes, he had mass purges. He also had famines caused by failed agricultural policies. (And he also had famines that seem to have been deliberately killing off groups that he disfavored.)

Claiming that he had mass purges doesn't change the fact that his failed agriculture policies were also deadly.

Tyrannical dictatorships are an emergent property of Marxism. When you stop allocating resources based on competence, and instead based on other factors, whoever gets to decide these factors ends up with all the wealth and power, since they use the factors they have. For instance in intersectionality, minorities want to take from whites under various guises of white privilege and equity, with the anticipated result being they hold all the wealth and power. If you keep narrowing the criteria, you end up with a tyrannical dictatorship. This is opposite of a constitutional democracy where power is decentralized among voters and limited by a Constitution.

> Tyrannical dictatorships are an emergent property of Marxism. When you stop allocating resources based on competence, and instead based on other factors, whoever gets to decide these factors ends up with all the wealth and power, since they use the factors they have. For instance in intersectionality, minorities want to take from whites under various guises of white privilege and equity, with the anticipated result being they hold all the wealth and power. If you keep narrowing the criteria, you end up with a tyrannical dictatorship. This is opposite of a constitutional democracy where power is decentralized among voters and limited by a Constitution.

What is this mythical system that allocates resources based on competence?

The free market?

The free market allocates resources based on competence at the task of acquiring resources, which doesn't always equate to virtuous contribution. I think it works because it gets some utility out of people's greed instead of none, while appeasing the powerful instead of mobilizing their power against it.

The free market allocates resources based on the competence of producing goods and services valued by others using money as the medium of exchange. People get utility from voluntary mutually beneficial transactions that satisfy their needs.

That's the ideal, and you're not wrong, but it ignores the behavioral piece of what really goes on in the world.

I saw what you did there - changed the story to 'virtuous' from 'competence'. I call foul!

Free markets have nothing to do with competence.

They select for members that deliver goods and services at a cost (dollars, convenience, timeliness) acceptable to other members of the market. Which is a 'competence function'.

Capitalism. The problem is that the competencies aren't always socially-beneficial or otherwise desirable ones, e.g. one's competency at scamming others can get rewarded (see, e.g., politicians).

Under capitalism you don't necessarily reward politicians. Politicians get rewarded when the spoils of politics are large, not from market exchanges.

I wish that were true, but the number of politicians whose businesses or children mysteriously get rich is pretty high if you look into that sort of thing.

>When the Soviet Union and China tried to undo "enclosure" and create communal farms, tens of millions of people died. To the extent these countries reduced inequality, they did it by making everyone poor.

This is a common trope, but is it really true? Regarding deaths: why do people count deaths in communist countries as stemming from the failure of communism, but do not apply the same criteria to deaths stemming from capitalism? Surely to be coherent, one must measure also deaths occurring from famines in capitalist countries, colonialism, slave trade, the dozens of US-installed dictatorships... See where that gets us?

Regarding "every one was equal because everyone was poor": Russia in 1917 was one of the most undeveloped places in the northern hemisphere, where all except a handful of landed aristocrats + imperial family lived in miserable, abject poverty. 40 years later the Soviet Union was the second largest economy in the world. Can we really say it was such a failure, from the economic point of view? Better yet: can we really say it made "everyone poor", a favourite trope of reaganites everywhere?

Referring to deaths due to collectivization as a "trope" is a little like referring to the Holocaust, or from American chattel slavery, as a "trope". It's easy to see how inappropriate the term is with the latter two examples; regardless of how you feel about communism, you probably shouldn't say it about the first example.

By way of further example, here's an excellent AskHistorians post on a Soviet collectivization tragedy you probably haven't read about, or at least I never had --- Kazakhstan:


Regarding the Soviet Union's growth into one of the great economies of the world, you can talk to people who left there for the west and learn how much of an economic powerhouse it was. Or, for that matter, look at the economy of a country like Poland. The clear evidence does not, to say the least, favor the argument you're trying to make.

> This is a common trope, but is it really true?

While the author above you may have been unfair to the Soviet Union by claiming they made everyone poorer, there's still not much of a defense of socialism. Capitalism has had some spectacular failures, but it has also had unparalleled successes. Neither the slave trade or colonialism are essential or unique to capitalism. Most of the travesties perpetuated by current capitalist countries were before those countries were actually capitalist. The colonialism practiced by the European powers began when those nations were feudal/military autocracies operating under mercantilist thought. As they became more capitalist, they gradually moved away from colonialism. In some cases, even as a country moved away capitalism for themselves, they maintained different forms of governments in their colonies which caused problems. England with India and Belgium with the Congo are two particularly infamous examples. India and the Belgium Congo would have been much better off had their oppressors liberalized them.

In fact, despite the sordid histories of capitalist nations, they have done a far better job of distancing themselves from such practices compared to Marxish governments. You can tally the cost of US-installed dictatorships and compare it to the cost of Soviet-installed dictatorships. You can also compare the impact of socialist and capitalist thought on their respective countries.

As for the Soviet Union's large economy, there are several things to note. First, Russia's previous form of government was feudalism and literally almost anything is better than feudalism though they may very well have been better off had they moved to capitalism instead of socialism. Second, they were bigger than any other capitalist country except the US which gives them a large economic potential. Third, the Soviet Union exported their economic system to East Germany, which was the most prosperous nation of the soviet bloc, but it's standard of living was still far below that of West Germany. West vs East Germany is probably the best economic experiment ever performed on capitalism vs socialism.

When I say communism killed tens of millions of people, I mean that very literally. I don’t just mean that a putatively communist state killed tens of millions of people. I mean that, when the theory of communism was put into practice with collectivized agriculture, it failed so spectacularly that tens of millions of people died. You could go further to the horrors of purges. And there is a fair argument that communism, which involves expropriation of private property, is intrinsically ripe for such abuse. But you don’t even need to go there to get the body count.

Slavery and colonialism, are completely different. They were bad things that were perpetuated by putatively capitalist states, but have nothing otherwise to do with capitalism. There are many definitions of capitalism, but extracting unpaid labor using violence doesn’t fit any of them. And as to colonialism, capitalism actually explains why colonialism had negative effects that have lasted long after the colonizers left. Colonialism robbed countries of their capital. Robbing other countries of capital through violence is not capitalism in any form. Same for U.S.-installed dictatorships. It’s not like the Soviet Union didn’t have an elaborate network of puppet states. That’s orthogonal to capitalism versus communism.

As to environmental issues, that’s perhaps a fair point of capitalism. But socialism has an even worse record in that regard. The Soviet Union was enormously resource inefficient. Even today, the US generates six times the GDP per capita with just 30% more CO2 emission per capita.

This exchange reads to me like one commenter saying "not a true communist!" and one commenter saying "not a true capitalist."

I won't call it either way, because I've seen this argument play out many many times and it never seems to be satisfactorily settled.

That’s a facile and shallow response, and buys into a popular Marxist trope. You could fairly say that if we were talking about whether healthcare in the US is a “free market.” It’s not a gray area like that. You have one example that flows directly from the central principles of Marxism (the failure of centrally planned agriculture) and one example that contradicts the basic principles of free market capitalism (slavery and colonialism). You can’t have a “free” market with forced labor, or where a colony is forced to sell raw materials to the colonizer and forced to buy finished goods from the colonizer. Pinning colonialism and slavery to capitalism is like criticizing filesystem performance in microkernels based on the Linux kernel as an example. Whatever shades of gray may exist in the definition of microkernel, Linux’s filesystem access does not fall into that debatable area.

You're against colonial extraction of raw materials? Congratulations on your keen insight! Have you considered USA's recent misadventures in Latin America? A CIA-backed coup with this very purpose has so far succeeded in Bolivia. [0] Fortunately the one in Venezuela has up until now just embarrassed us. [1] Where will we try this next? Stay tuned!

[0] https://thegrayzone.com/2019/11/11/bolivia-coup-fascist-fore...

[1] https://www.nytimes.com/2020/02/06/opinion/international-wor...

Ah, the great nation of Sweden. With an enormous GDP not even remotely rivaling that of cities with notorious "socialist" land use laws, like NY, LA, Chicago, or San Francisco. LA, in particular, has approximately the same population but fewer natural resources and yet has a GDP double that of Sweden.

Private property protections are not a panacea. If they were, then Somalia would be a capitalist's paradise instead of a warlord's paradise.

It doesn't make any sense to compare the GDP of a city to that of a country, especially a largely rural country. LA's GDP benefits from many large corporations which choose to headquarter there, not to mention one of the largest ports in the world. Why not compare to a US state with similar population, like Georgia, which has a GDP somewhere around 80% of Sweden's.

The US has a higher gdp per capita than Sweden anyway.

And it is a much worse place to live.

You mean like IKEA, Volvo, Ericsson, H&M, Electrolux, or Spotify?

LA has a comparable population to Sweden, which is why I chose it for a reference point. Georgia also has a comparable population, but I was comparing cities to Sweden, not states.

The difference is that those Swedish companies could be said to be a result of Swedish policies and cultures, while companies headquartered in LA could just as easily be headquartered anywhere else in California with zero changes to anything, and anywhere else in the US with very, very few changes to anything.

Yes, you compared a city to Sweden, but Sweden is not a city. Sweden is more akin to a state, so it seems more appropriate to compare it to a state. That was the point.

Um what? Somalia has the worst private property protections.


Could it be that LA actually has or at least had more natural resources?

>In the 1890s, the small town of Los Angeles (population 50,000) began a transformation driven by the discovery and drilling of some of the most productive oil fields in history. By 1930, California was producing nearly one quarter of the world's oil output, and its population had grown to 1.2 million. In the decades that followed, many wells closed, but even more opened, surrounded by urban and suburban growth. Machinery was camouflaged, loud noises were abated, methane pockets were vented, as residents learned to live side-by-side with oil production facilities. To this day, oil fields in the Los Angeles Basin remain very productive, and modern techniques have centralized operations into smaller areas or moved offshore.


The government of Somalia provides private property protection?

The de facto government of Somalia (i.e., the warlords) do.

No they don't, that's what being a warlord means. Private property protection is not 'whoever I like or pays me gets to keep their goats', private property protection means protection under the rule of law.

Everything is backwards in your argument.

NY, LA, Chicago, SF, and LA are both heavily regulated in terms of what 'socialist' land use laws they can implement by the fact they must follow the constitution of the United States of America, which by and large guarantees the right to private property.

> If they were, then Somalia would be a capitalist's paradise instead of a warlord's paradise.

Capitalism and 'classical liberalism' explicitly call for a government strong enough to enforce individual rights from abuse by other individuals. Somalia does not have that and is thus missing a key component of Capitalism. Nice strawman though!

Funny how libertarians and conservatives are all in favor of big government when it defends their particular private interests. Socialism for the rich, capitalism for everyone else as the common meme goes.

I dunno, the libertarians at places like reason.com seem to be pretty opposed to any government at all. There is no major libertarian party or even representative at the national level, so it's hard to say what they are in favor of.

Actually many of them are working on proposals to get rid of a state entirely. I think that will probably not work out at all, but that's hardly wanting "big government."

Oddly enough, I found this video to be a better debate on the subject of libertarianism vs. Marxism than most of what can be found online because it doesn't seem to strawman either side:


Quite impressive, I didn't know I was reading a Marxist gripe until half way through. Started out interesting before its agenda was revealed.

You just admitted that you were reading it just fine and found yourself agreeing with it, only to then identify that it was "the wrong opinion" and dismiss it as "an agenda". Sad.

I think the only way not to get screwed by lawyers is by employing them and using them to avoid getting screwed by other lawyers. Still it's a giant cost center.

Can you clarify how this relates to the article?


"Lawyers, therefore, sustain a fiction by dressing up claims and placing them in opaque asset-backed legal entities and applying an alphabet soup of labels—"

"The first thing we'll do..."

A diminishingly small subset of a profession is tagged with some interesting, historical practices.

Most lawyers have nothing to do with any of this.

It is like saying carpenters have something to do with modern society's damage to the environment because everybody is buying houses.

This is specifically about how "Big Law" does this – so no, most lawyers don't do this, but the prestigious and high-paying firms do.

They're hardly "historical practices" when the 2007-2008 financial crisis is so recent. And the article goes deeper into the premises and mental models that place state power in service of private capital. I'm not sure why you so quickly dismissed it.

You are right. I apologize for my overblown comment.

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