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25 Indiana Journal of Global Legal Studies 61 (2018)


This article examines the judicialization of private systems of governance that are transforming "common sense" understandings of who should govern states, societies, and political economies. The focus is on the private transnational institutions and processes in the global investment and financial regimes. These regimes contribute to the maintenance and expansion of capitalism by assisting in the management and mitigation of risk, but they also participate in the construction of the sorts of risks that require management and mitigation. In so doing, they are deeply involved in determining what requires governance, as well determining the appropriate mechanisms and manner of governance. They constitute a form of private transnational authority, performing governance functions usually attributed to states and to public authorities. In the areas of global investment and finance, private transnational experts craft the legal foundations that advance and secure the expansion of capitalism as the common sense of our time. These laws are characterized as a form of "new constitutionalism," for they constitute both the material and ideological foundations for ordering societies and political economies under the discipline of an increasingly transnationalized market civilization. Transnational market civilization subordinates national political authorities to disciplines emanating from international investment, derivatives, and project financing agreements that function constitutionally to limit the policy and legislative autonomy of national governments, thus seriously impacting their sovereignty. However, while the areas examined reveal a complex and hybrid mix of public and private authorities that raise significant legitimacy concerns, the mix is not fixed, but is mutable and open in places to resistance and contestation, suggesting that the discipline of transnational capitalism is incomplete and might one day reflect better or "good sense."

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