Buying Social Justice: Equality, Government Procurement, and Legal Change.

• Author: Dunoff, Jeffrey L.
• Position: Book review

BUYING SOCIAL JUSTICE: EQUALITY, GOVERNMENT PROCUREMENT, AND LEGAL CHANGE. By Christopher McCrudden. Oxford and New York: Oxford University Press. 2007. Pp. li, 680. Cloth, $225; paper, $95.

INTRODUCTION

The U.S. government is the planet's largest purchaser of goods and services; (1) worldwide, states spend trillions of dollars on procurement each year. (2) Yet legal scholarship has devoted relatively limited attention to the conceptual and normative issues that arise when states enter the market. Should states as purchasers be permitted to "discriminate" to advance social objectives--say, racial justice--in ways that would be unlawful when they act as regulators? Is each country free to strike its own balance between the pursuit of economic and social objectives through procurement, or do international trade norms limit state discretion in the name of economic efficiency? Should states be permitted to use procurement to advance social objectives, like environmental protection or worker rights, in other states?

Government procurement is often viewed as a legal labyrinth of arcane tendering procedures, murky supplier qualifications, and obscure challenge mechanisms. In Buying Social Justice: Equality, Government Procurement, and Legal Change ("BSJ"), Christopher McCrudden (3) challenges this understanding and details how procurement law and policy is profoundly linked with the pursuit of social justice. By demonstrating that we can--and should--understand procurement as being not simply about the purchase of pens and paper clips but also as a potentially powerful vehicle for advancing diverse social goals, the book subverts conventional views of procurement and identifies new areas of scholarly inquiry and public debate.

BSJ covers an enormously wide range of topics, including the history of the use of procurement for social purposes (Chapters 2-4, 10-14); the theoretical arguments for and against the use of procurement policy for social ends (Chapter 5); the trajectory of procurement policy in numerous developed and developing states (Chapters 6-10); the on-again, off-again nature of international negotiations over procurement (Chapters 8, 11-14); procurement policy's influence on the corporate social responsibility movement (Chapter 12); and the international legality of various domestic procurement programs (Chapters 15-17). As even this highly abbreviated list of topics suggests, BSJ is an extraordinarily ambitious text that resists easy summary.

This Review examines both the details and the rhetorical structure of McCrudden's arguments. Specifically, it analyzes some of the issues BSJ discusses that are of special interest to international lawyers, including particularly the legality of one country using its procurement policy to advance social goals abroad (e.g., when several U.S. states passed laws designed to address human rights in Burma). In this context, I elaborate on McCrudden's analysis in several regards. Specifically, I examine the rules that govern the state's ability to pursue social goals as a regulator and as a market actor. Does the state have greater freedom when acting in one capacity than in the other? Would differential treatment permit states to pursue through the back door objectives that they are legally unable to pursue through the front door?

In addition, this Review examines the structure of McCrudden's argument. Much of BSJ relies on a problematic distinction between pursuit of economic goals and pursuit of social goals through procurement. Although the distinction is commonly found in the literature, BSJ itself demonstrates that it obscures as much as it reveals. Moreover, as explained more fully below, McCrudden's framing of the issues, mode of analysis, and understanding of the relative centrality of formal legal norms shares much with two literatures that BSJ straddles--scholarship analyzing government procurement law, and writings on the relationship between international trade and human rights. However, with its virtually exclusive focus on formal legal rules and doctrinal analysis, BSJ is as interesting for what it omits--namely, sustained discussion of the empirical effects of international procurement policy--as for what it includes. Indeed, while BSJ is ostensibly about legal history and legal analysis, the text can also be read as implicitly demonstrating the limits of legal analysis and the shortcomings associated with approaching social problems exclusively through a legal lens.

BSJ is a valuable addition to the literature on procurement. Although some of its arguments are not fully persuasive, this impressive text invites us to rethink the relationships between procurement and social justice. To highlight some of BSJ's most important contributions, this Review proceeds as follows. Part I briefly summarizes the economic importance of government procurement, the history of government efforts to use procurement to serve social goals, and the move toward international rules in this area. Part II reviews the international norms governing procurement, as well as McCrudden's analysis of the legality of one state using procurement policy to address human rights conditions in other states. It also addresses an issue that BSJ largely elides: given that a state can use various policy instruments to advance the same social objective, should the law permit states to pursue certain ends through procurement but prohibit them from pursuing the same ends through regulation? In this context, I identify some anomalies in current law. Part III locates McCrudden's book within the larger debates over trade and human rights. It shows that BSJ uses modes of argumentation and conceptual frameworks common to this larger literature, and identifies some of the limitations associated with these frameworks. Ironically, however, these limitations point the way toward a justification for giving states wide latitude in using procurement to pursue social objectives.

1. A BRIEF INTRODUCTION TO GOVERNMENT PROCUREMENT

   Public procurement--"the purchasing by government from private sector contractors, usually on the basis of competitive bidding, of goods and services that government needs" (p. 3)--is the primary mechanism by which public monies are spent. (4) The economic impact of procurement is enormous. The U.S. government now spends over $400 billion on procurement each year, (5) and spending by U.S. states, municipalities, and other subnational governmental units, in the aggregate, significantly exceeds federal spending. (6) In 1998, total procurement (both consumption and investment) for all levels of government in industrialized states was estimated to be $4.73 trillion, an amount equivalent to 82.3% of total world merchandise and commercial services exports. (7)

   Given their economic clout, it is not surprising that governments have often used their purchasing power as a tool to advance public policy objectives. BSJ describes efforts by the United States and European countries in the nineteenth and twentieth centuries to use procurement as a tool of national industrial policy, including addressing regional disparities (pp. 25-31); ensuring fair working conditions, such as minimum wage and maximum hours (pp. 37-48); and employing both disabled ex-servicemen and disabled workers (pp. 56-62).

   These early efforts had transnational dimensions that prefigure many contemporary concerns, particularly regarding the ability to impose requirements on foreign companies and the economic impact of such requirements on domestic firms. For example, in a 1909 legislative debate in the United Kingdom over a resolution requiring government contractors to pay prevailing wages, a member of Parliament argued that "unless it were found possible to impose similar conditions upon foreign competitors, any extension of the Fair Wages Clause must inevitably cause hardship amongst English contractors and unemployment amongst English working men" (p. 51). This comment foreshadows contemporary concerns that strong domestic regulation can disadvantage national firms that compete in international markets.

   The early developments reveal another international dynamic that continues: states' propensities to use procurement policy to favor local producers by excluding foreign competition. Since 1844, the United States has had legislation requiring some federal agencies to purchase domestic goods (p. 26), a policy currently codified in the Buy American Act ("BAA"). (8) This complex federal statute requires, in effect, "that materials, supplies, articles, or (since 1990) services that are acquired for public use should be substantially American" (p. 26; footnote omitted).

   McCrudden properly emphasizes the international concerns driving this legislation. First, the specific motivation for the 1933 BAA was the concern that a German firm would win a contract for the power plant at the Hoover Dam (p. 27). The BAA was also motivated by a general desire to "retaliat[e]" against discriminatory practices of other states (p. 27). For example, since 1920 the British had required that materials used for Treasury-financed construction "be of British origin and all manufactured articles of British manufacture" (p. 27). Several U.S. legislators wished to respond in kind. Senator Bingham, of Connecticut, summarized the argument: "There is only one way to meet a perfectly reasonable national movement of that kind and that is the so-called 'buy American' movement" (p. 27).

   The prominence of international concerns in early procurement debates, including concerns over international competitiveness and evidence of "tit for tat" exclusionary policies, did not, however, produce international agreement in this area. Indeed, prior to World War II there were virtually no multilateral instruments addressing procurement. During the later stages of the War, the United States engaged the Allies in discussions over the shape of the post-War...