Document Type

Article

Publication Date

Fall 2008

Disciplines

Antitrust and Trade Regulation | Banking and Finance Law | Business Organizations Law | Commercial Law | International Law | International Trade Law | Law and Economics | Law and Politics | Law and Society | Legislation | Public Law and Legal Theory | Social Welfare Law

Abstract

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear to be up for grabs.

It isn’t clear, on reflection, how to regard these developments from a normative point of view. On the one hand, there seems no gainsaying that the gradual removal of transnational trade and investment barriers have resulted in more rapid economic growth worldwide. And that growth appears to be lifting many once desperately poor persons out of their erstwhile penury. Yet on the other hand, there also is no denying that global trade and investment liberalization are wreaking losses at least as conspicuous as the gains. For many if not most of the victims of globalization are those who till recently occupied positions much like those now coming to be occupied by globalization’s more sympathetic beneficiaries, and who climbed out of them via precisely those legislated standards that offshoring firms now evade. Might we pay Peter without robbing Paul?

This Article proposes an ethically and intuitively attractive answer to that question rooted in financial engineering. The key is to channel a portion of the globalization-wrought gains reaped by outsourcing firms to the outsourced employees themselves. That way the latter are directly benefited by the very processes that currently are harming them. The method proposed is to adapt the already familiar Employee Stock Ownership Plan, or “ESOP,” to spread shares not simply to current labor, but now to “shadow” labor as well. The Article also proposes means of diversifying the portfolio risk that will face “OutsourceSOP” participants, and sketches a supporting role for such international financial institutions as the IMF and the World Bank. In the long run, the Article concludes, we have here the makings of a future “Global Shareholder Society.”

Publication Citation

Virginia Law & Business Review, vol. 3, no. 2 (Fall 2008)