Volume 3, Issue 3, 2023
Platform business models rest on an uneven foundation. Online behavioral advertising drives revenue for companies like Meta, Google, and Amazon, with privacy self-management governing the flows of personal data that help platforms dominate advertising markets. We argue that this area of platform capitalism is reinforced through a process whereby seemingly incompatible conceptions of human subjects are codified and enacted in law and industrial art. A rational liberal “consumer” agrees to the terms of data extraction and exploitation set by platforms. Inside the platform, however, algorithmic systems act upon a “user,” operationalized as fragmentary patterns, propensities, probabilities, and potential profits. Transitioning from consumers into users, individuals pass through a suite of legal and socio-technical regimes that each orient market formations around particular accounts of human rationality. This article shows how these accounts are highly productive for platform businesses, configuring subjects within a legitimizing framework of consumer sovereignty and market efficiency.
“Vulnerable Workers” and Third Way Governance: Shifting Subjects of Regulation in Ontario’s Employment Standard Enforcement Regime
This article traces the definition and treatment of “vulnerable workers” within the province of Ontario’s regulation of employment standards over a fourteen-year period. An examination of the government’s discourse and its enforcement and legislative history reveals significant shifts and inconsistencies between the government’s claims and its enforcement practices. These shifts and inconsistencies are understood within a political economic analysis of “Third Way” employment policies, competing liberal ideologies, shifting political-economic conditions and institutional legacies. The analysis contributes to a cross-national literature exploring the inadequacies of employment standards enforcement in liberal market economies while at the same time identifying opportunities for change within the different “varieties of liberalism” exhibited within Third Way regimes.
Franchising and the Extraction of Surplus Value: Excavating the Legal Boundary Between Franchisees and Employees
Nearly one in ten Canadians in the private sector works in the franchised sector of the economy. For the most part, franchisors operate as rentiers, extracting value from franchisees for the use of their brand. Research has demonstrated that this arrangement puts additional pressure on franchisees to extract surplus value from their employees that tend toward substandard and unlawful working conditions. In this scenario, franchisors benefit from but are only indirectly involved in the extract of surplus value. In some cases, however, the vertical controls exercised by “franchisors” over “franchisees” are so extensive, and the financial contribution of “franchisees” is so limited, that the franchisor becomes involved in directly extracting surplus value from franchisees. We explore this latter phenomenon through an excavation of the history of the legal distinction in Canadian business-format franchising in Canada and detailed studies of two recent Canadian cases in which “franchisees” successfully claimed employment status.
This article addresses the power of law to make historical change. We begin by charting a rich debate on law’s autonomy held over the course of the twentieth century, overviewing contributions by Classical Legal Thought, Law and Society, Marxism, the New Left, Critical Legal History, and what we term the “Millennial Consensus.” We then sketch an alternative view that we feel is implicit in much legal history, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others. We emphasize that it also has an existential dimension in that we can never foresee all the future uses particular legal institutions may be put to.