Wal-Mart: Interdisciplinary and Inter-Doctrinal Approaches to Legal Problems

Table of Contents (for this page)

Wal-Mart: Object and Actor

An Interdisciplinary Approach to Studying Law

An Inter-doctrinal Approach to Law

Themes: The Limits of the Law and Wal-Martization

Is a Wal-Mart Course Good for Law Schools?

Wal-Mart: Object and Actor

Wal-Mart is the world’s largest retailer and the largest private employer in the United States.  Wal-Mart is both an object and an actor in the legal sphere.  As a corporate organization, Wal-Mart is a significant actor in litigation and government regulation and, as such, has had an impact on American law and policy.  At the same time, Wal-Mart is also a significant target for lawsuits and public criticism.  The law school class on Wal-Mart used the company as a case study and as a lens through which to examine various areas of legal doctrine. 

The class was an experiment in law school course design.  The purpose of the experiment was to encourage students to think synthetically about law, to examine the ways that diverse areas of law interact, and to think about broad legal rules and principles and apply them to a particular example. 

Under the traditional case method, the fabric of the law is cut up into discrete doctrinal areas that are embodied in core courses (torts, contracts, property).  These are also commonly divided into common law courses and statutory law courses.  This approach to studying law narrows students’ focus.  It also runs the danger of entrenching a formalist approach to law.  The Langdellian model of legal education treated law as a discipline – a “science” according to Langdell – distinct from other areas of scholarly inquiry.1 This approach to legal education has been criticized as “formal, narrow, abstract” and as “divorced from the living law, and apathetic towards issues of social policy.”2  Legal realists criticized the “law as science” model for presenting law as apolitical.3  Although these criticisms have been largely internalized, the structure of the law school curriculum remains the same.

The Wal-Mart course was designed to address some of these shortcomings in legal education by creating a course that was both inter-doctrinal and interdisciplinary.  We could not weave the fabric of the legal subject areas into the fabled “seamless web.” Rather, the course might be described as a quilt, combining discrete pieces into a whole that, we hope, is more than the sum of its parts.  Instead of focusing on one area of the law, the course addressed a myriad of legal doctrines that affect and are affected by Wal-Mart.  Instead of focusing on legal doctrine exclusively, the course introduced political science, economic, and sociological studies and methodologies. 

An Interdisciplinary Approach to Studying Law

The course was interdisciplinary in several senses.  First, the course imported a business school model, gathering all the information available about Wal-Mart’s business and learning from its successes and failures.  We assigned readings about Wal-Mart’s business model and its corporate culture.  We highlighted Wal-Mart’s business model of generating profits through high-volume, low-margin sales.  Wal-Mart’s success has been a product of low prices and low profit margins relative to other retailers.  Wal-Mart has kept its own costs low by pressuring suppliers to lower their prices, by selling products made outside the United States by low-wage workers, by keeping employee wages and benefits low, and through sophisticated use of technology in all areas of its operations, from distribution to store management.  We looked at the history of Wal-Mart’s development from a regional, rural retailer to its more recent expansion both internationally and into urban areas in the United States.

Second, we drew concepts from the political science literature to help us understand Wal-Mart both as a company and as a phenomenon.  One of the organizing concepts of the class was Wal-Mart as the “condensation symbol.”  The term condensation symbol has been used for several decades within political science with reference to social issues that become the target object for discussion of broader ideological issues.4  Wal-Mart has become a target for political reforms on both the Right and the Left.  Political analysts often point to Wal-Mart to anchor any argument they are trying to make.  Moreover, Wal-Mart has become the screen against which many project the generalized social and economic anxieties about important socio-economic issues, such as the United States’ transition from a manufacturing to a service economy,  the status of women in the workforce, the growth and consolidation of multi-national corporations, and the role and limits of state and federal government regulation.  We also looked at the relationship between law, politics and social movements as they played out with respect to Wal-Mart.  Various groups have coalesced to attempt to alter Wal-Mart’s policies through the pressure of public opinion.  We brought the efforts of these groups and their success and failures to the attention of the students.

Finally, we looked at economic and sociological studies of Wal-Mart.  We compared how studies from different disciplines evaluated Wal-Mart and its effects.  We inquired into the limits of various methodologies and the types of questions that these different methodologies ask or do not ask.  For example, an economic study might ask whether the entry of Wal-Mart into a community reduces prices for consumers, but might not look at the effects of Wal-Mart on the earnings of those consumers.  We encouraged our students to become critical consumers of statistical studies and gave them some tools for evaluating these studies. 

An Inter-doctrinal Approach to Law

The course also looked at Wal-Mart’s relationship to law through a wide variety of legal doctrines.   This approach allowed students to gain an understanding of the wide range of legal doctrines that affect corporations and that corporate counsel must comprehend.  It also introduced students to areas of law they might wish to explore further in their studies or in practice.  The introduction to each of these areas of law was short, enough to give students a taste but certainly not enough to develop any measure of expertise.  The course covered the following substantive areas: employment discrimination, labor, antitrust, corporate law, corporate social responsibility, international and trade law, land use and zoning, banking regulation, social benefits and welfare, and wage and hour laws.

Themes: The Limits of the Law and Wal-Martization

The inter-doctrinal and interdisciplinary approaches influenced the themes that pervaded the course.  Much of our conversation was about the limits of the law in regulating large corporations such as Wal-Mart.   The “limits of the law” can be understood in several ways, all of which were explored in the course. For example, the limits of the law can be understood as the practical and political restrictions on the ability to regulate large actors or as the extent to which such regulation is in any event unable to achieve stated goals on its own terms and should be replaced by market forces.

For example, we discussed the ways in which Wal-Mart’s role as a repeat player in lawsuits influences the way the law plays out in practice.  We examined how a corporation of this size can navigate around the law, and the ways in which size requires more regulatory compliance in some cases.  We also explored how Wal-Mart influences the practices of other business, implicating the boundary between law and norms.  This came up in the context of Wal-Mart’s extraordinary influence over its suppliers, which raised the question of the possibilities and limits of monopsony regulation.  The same questions arose with respect to corporate social responsibility and Wal-Mart’s well-publicized efforts to create “greener” stores both to save costs and gain public approval.  They also arose in our discussion of the downward pressure on wages and benefits in the retail employment marketplace resulting from the adoption of Wal-Mart’s business model.

Another significant theme that pervaded the class was the concept of “Wal-Martization.”  Introducing and questioning the concept of “Wal-Martization” was a way to ask the question: What is so special about Wal-Mart?   We asked this question with reference to several subject areas, including the historical development of the law governing retailers, economic developments, and larger legal struggles over reform in a political environment that has de-valued the regulatory state.  Wal-Mart is a particularly powerful example of trends that have been developing a long time.  For example, there is a long history of popular resistance to national chains and a conflict between local retailers and national companies that predates Wal-Mart’s rise.5  Second, retailers, including Wal-Mart, have played a significant role in the history of labor in the United States, and have had a particularly influential role in the decline of unions and of the United States manufacturing sector.6 Finally, the increased irrelevance of national boundaries, dismantling of trade barriers and supply-side concerns such as labor conditions and human rights, can all be seen through Wal-Mart’s purchasing practices and perhaps are influenced by them as well. 

Wal-Mart’s business model of high volume, low margins has met with great economic success and spurred widespread imitation.  This business model has had significant effects on other parts of the economy, including the manufacturing sector as Wal-Mart’s suppliers increasingly outsource production to other countries.  Wal-Mart’s growth and power has also lead some to ask whether more robust regulation of monopsony power, currently unregulated in our economy, is necessary.  On a related note, Wal-Mart provides an example of the increase in concentration of power and wealth, in part as companies react to Wal-Mart’s purchasing power by merging and consolidating power themselves. 

Politically, Wal-Mart’s success has spurred local action against the retailer in some areas such as local living wage ordinances.  This local resistance is an expression of a larger trend away from agitation for federal reforms and towards a focus on local legislation.  Increased awareness of Wal-Mart’s power as a retailer has spurred concerns in some areas about the retail chain sucking resources out of the local economy and is part of a larger awareness of tensions between the national and local economies.  Finally, Wal-Mart’s pay and benefits policies illustrate the limited role of the state in an age that has de-emphasized regulation and in which employers avoid providing the safety net that they once did.  This leads one to ask whether Wal-Mart’s failure to provide a living wage or benefits is a failure of Wal-Mart’s responsibility towards its workers, or the failure of our government to provide for our poorest citizens.

Is a Wal-Mart Course Good for Law Schools?

The question most often asked with respect to Wal-Mart is whether Wal-Mart is good for America.  We found that many students had well formed opinions on this question when they entered the classroom.  Our hope was to examine these opinions, both in favor and against Wal-Mart’s growth, through a thorough examination of this case study.  We think that the course managed to raise the level of complexity in our student’s thinking and our own with regard to this question. 

There were two drawbacks to the course.  First, because it covered such a wide range of doctrines and disciplines, the participants were put in the position of being jacks of all trades, masters of none.  Ideally the course would serve as an introduction to areas of law that might excite students, that they might otherwise not encounter, and that they could then pursue more in depth.  Second, the range of subjects required a facility on the part of the instructors in a variety of areas beyond their expertise.  We were helped by judicious use of guest lecturers and assisted by our colleagues in different fields.  

Our conclusion was that students were keen to study law in the context of ongoing social and political problems and current events and that they found the Wal-Mart course was a good way of being introduced to a variety of doctrines.  The most effective teaching moments were those involving practice exercises in class that synthesized the material and guest lecturers that had real world experience working on Wal-Mart issues.  Overall, the experiment was a positive experience for those involved and we look forward to hearing from others engaged in similar pedagogic experiments at other schools.