The Consumer Imaginary: Labor Rights, Human Rights, and Citizen-Consumers in the Global Supply Chain.

Author:Kolben, Kevin

TABLE OF CONTENTS I. INTRODUCTION 840 II. THE SUPPLY CHAIN ECONOMY 845 A. Economic Unbundling 845 B. Firms 848 C. The Fissured Workplace 851 III. THE CONSUMER STRIKES BACK 852 A. The Demand for Social Governance 853 B. Labor Governance Deficits 855 C. Consumer Mobilization: TLANS 858 D. Corporate Supply Chain Compliance 859 IV. COSMOPOLITAN CONSUMER CITIZENSHIP 861 A. From Traditional Citizenship 861 B. ... To Consumer Citizenship 864 C. Empirics: To What Degree do Consumers 869 Care? 1. Survey Research 870 2. Experimental Research 872 V. THE CONSUMER IMAGINARY 876 A. Social Distance in the Supply Chain Economy 876 B. Introducing the Consumer Imaginary 879 C. The Consumer Imaginary in Action: Social Labels 882 VI. CONSUMER CITIZENSHIP IN PUBLIC LAW 886 A. Trade Law 887 B. Transparency Laws 892 C. How to Improve? 895 1. Trade and Labor Provisions 895 2. Domestic Transparency Laws ... 896 VII. CONCLUSION 898 I. INTRODUCTION

Imagine, if you will, the person who sewed the zipper onto your favorite jacket. Have you ever met this person, or anyone who has worked in a garment factory? If not, how do you imagine him or, most likely, her? What is her name? Is she married? Is she a mother? What kind of home does she sleep in at night? What does her workplace look like? Smell like?

Now think a moment about the cup of coffee that you drank this morning. Picture the landscape of the plantation on which the coffee bushes grew. In your mind, form an image of the faces and the hands of the people who picked the raw coffee beans that eventually made it into your mug. What do you think were the working conditions of those people whom you now have a mental image of?

If you "played along" in the exercise above, you have just engaged in what this Article terms the "consumer imaginary." That is, you created for yourself a narrative and mental image of the producers and origins of two distinct products that are staples for hundreds of millions of people. Yet it is highly likely that you have neither worked on a coffee farm nor in a garment factory; and it is also likely that you have not had significant social contact with anyone who has. Nevertheless, it is quite possible that your consumption choices are, or could be, affected by the ways in which you imagine, or are made to imagine, (1) the context in which the goods you consume were produced, and (2) the degree to which you feel a bond with the producers of those goods.

This Article argues that the law should motivate citizen-consumers to improve labor conditions and human rights compliance in the global supply chain by triggering the consumer imaginary. Two brief examples illustrate this idea. In 1996, reports emerged that workers making Nike sneakers in Indonesia were being paid below subsistence wages in violation of Indonesian law and working in highly abusive conditions. (1) As a result, labor activists pressured Nike to make a change, and Nike saw drops in its share price and revenue that likely had at least some connection with the negative coverage. (2) The reputational pressure, along with other fiscal pressures that Nike was concurrently facing, led Nike CEO Phil Knight to rue the fact that the Nike swoosh, which many consumers closely identified with, had come to symbolize slave-like labor conditions and abuse, and he acknowledged that "the American consumer does not want to buy products made in abusive conditions." (3) Nike has, by many observers' accounts, significantly improved its supply chain compliance program by introducing several experimental initiatives, (4) and by opening its programs to the study and scrutiny of scholars. (5)

A growing body of research suggests that Phil Knight's intuition was correct: an important segment of consumers is increasingly acting as citizen-consumers. (6) That is, they take into account the social and environmental context of the goods they consume and make purchasing choices based on these considerations. (7) Consumer citizenship and political consumerism are widely discussed phenomena in scholarly literature, including in sociology, (8) political science, (9) history, (10) and marketing. (11) Legal scholars have also now begun to turn their attention to the role of consumer citizenship and socially driven consumption, including in tort law, (12) corporate law, (13) intellectual property law, (14) and trade law. (15) But the potential of consumers serving as regulatory agents remains underexamined by legal scholars. This Article aims to contribute to this nascent stream of legal scholarship by examining the role of the consumer in supply chain regulation through the conceptual lens of consumer citizenship, and by proposing ways that (1) trade and labor provisions and (2) corporate disclosure laws can exploit the consumer imaginary to beneficial ends. These two areas of law were chosen because they are the two domains that most directly seek to impact labor and human rights abuses in the global supply chain. In the case of disclosure laws, the consumer is already implicitly part of the laws' design, albeit, it is argued, in an ineffective way. In trade law, it is argued that the consumer could be explicitly utilized as a tool to effectuate the goals of improving labor conditions in trading partner countries.

To make this case, Part II describes the economic and political drivers that have given rise to consumer citizenship. A significant driver has been the evolution of "the supply chain economy." (16) In recent decades, the organization of the global economy has led to increasingly disaggregated production processes that have taken the form of complex supply chains whereby production has been contracted out to far flung suppliers around the globe. (17) One of the implications of this has been a transformation of the employer--employee relationship, whereby lead firms do not have direct control or liability for the working conditions in their supply chain. (18)

The conflict that arises in this arrangement, as examined in Part III, is that the working conditions in suppliers' factories are often poor and do not meet the expectations of global consumers. (19) This is because the labor law regimes of the countries in which suppliers' factories are located often lack adequate enforcement capacity and/or will to improve labor standards. (20) Informed and mobilized by transnational labor activist networks (TLANS) and an increasingly attuned media, consumers have been increasingly taking into account the social conditions under which the goods that they buy are made. (21)

Indeed, as Part IV argues, consumers' identities are increasingly linked to the products that they choose to buy. This tight linkage has compelled a number of them to try and use their purchasing decisions as a means of social and political action. (22) This Article refers to this phenomenon as "cosmopolitan consumer citizenship." This term describes the actions of citizen-consumers who believe that they have a duty to the producers with whom their consumptive and economic lives are bound. They wield their consumptive activity in the market as a means of engaging in political and social action across borders. Confronted with the weak extraterritorial regulation of supply chains, cosmopolitan consumer citizenship is a reaction to the inability of consumers to address labor and human rights abuses in the global supply chain through traditional forms of domestic political engagement.

An important driver of this new form of citizenship, Part V argues, is an increase in the physical and "social distance" between producers and consumers that is a result of the disaggregated supply chain economy. This expanding distance bothers many consumers, and they are increasingly seeking to recapture one of the most basic forms of localized social interaction--purchasing, trading, and consuming goods and services from people they personally know. (23) But there is a tension here: in a globalized economy, there are few direct personal relationships between consumers and producers, and the bonds between them are largely imagined. (24) The imagined nature of those relationships, which is termed here as the "consumer imaginary" and which provides the title of this Article, both poses risks and holds out promise for regulatory efforts to improve labor and human rights in the global supply chain. (25)

While the primary approach of this Article is conceptual, Part VI turns to the concrete and suggests how the theoretical discussion can be applied to law and legislation. There are two central ways that public law has heretofore attempted to regulate labor conditions in the global supply chain. The first is through trade law and trade agreements. (26) US trade law has long included labor criteria in its trade legislation and its free trade agreements (FTAs). (27) Increasingly, the FTAs of a number of countries have included labor provisions requiring that trading partners comply with various labor standards and engage in certain processes at the risk, in some instances, of being subject to trade dispute procedures and remedies. (28)

The second way is through disclosure and transparency laws aimed directly at lead firms. (29) While the regulation of global supply chains has been largely left to the market, in recent years legislation in Europe and, now increasingly, the United States has been enacted or proposed that compels firms to generate and reveal information about their supply chain practices. (30) These laws have not prescribed the actual conduct of lead firms vis-a-vis their supply chains, but rather require that they disclose the processes by which they have conducted due diligence to ensure that their supply chains are free of certain kinds of human and labor rights violations. (31) In this sense, the laws rely on consumers taking this information into account, or, alternatively, on companies fearing that consumers will do so. (32) This is supposed to motivate...

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