In this special issue, we unpack law and finance entities and consider their co-construction, entanglement and interchanging relationship. Adopting a processual sociology lens, we aim to connect micro-technical devices and controversies to the macroscopic big picture of financialized capitalism. We combine analytical tools from pragmatic sociology, emphasizing how social reality and institutions are (re-)enacted through trials, with a dynamic and historicized sociology of the state and the juridical field. Four avenues illustrate our research program on the sociology of financial law. First, we focus on how this juridical space is co-produced by public and private forces, organizations and initiatives. Second, we look at how financial law displaces and endogenizes core regalian purposes traditionally associated with the state. Third, we show the forms of asymmetries that pervade law enforcement in financial cases. Fourth, we address how power intervenes in normal and exceptional times, such as financial crises. The legal and financial co-production of political regimes shapes economies and legitimate forms of social distribution.

In this article, we show how interpretive battles about compliance can lead to regulatory differentiation and, in turn, market segmentation. To do so, we study the evolution of unsecured lending in the United States, between 1900 and 1945. In the early 20th century, a large segment of the workforce relied on their wages to access credit: this required the “legal coding” of labor income into capital, where lenders would offer advances in exchange for a lien over future revenues. Regulating these transactions raised conflicts between Progressive reformers, lenders and, after 1929, federal regulators, which spanned over five decades. The historical comparison of three states—Illinois, New York and Georgia—, shows that local discussions revolved around three outcomes—legal status, pricing method and collateralization—, the issue of which led to distinct regulatory paths and market configurations at the state level. Finally, the New Deal policies created an additional strand of federal coding, furthering market divides between unregulated payday lenders, non-bank credit companies, and commercial banks. On financial markets, discussions about compliance often revolve around calculative technologies, and we suggest this as a possible crossing point between STS analyses of capitalization devices and Pistor’s theory of capital modulation.

Law is a powerful commitment device. By entering into a binding contract, a contracting party can invoke the coercive law enforcement powers of states to compel another party to perform. Many, if not most, contracts are carried out without ever invoking these coercive powers; they operate in the shadow of the law. Less attention has been paid to the flip side of law’s shadow: the possibility of relaxing or suspending the full force of the law, or making law elastic. While this may seem anathema to the “rule of law”, it is not an infrequent occurrence, especially in times of crisis. The elasticity of law should be distinguished from the incompleteness of law, that is, the inherent limitation lawmakers face in trying to anticipate all future contingencies. In this paper I will offer two tales of the American Insurance Group (AIG) to illustrate the elasticity of contracts as well as of law.

How is a sovereign prerogative brought to market? We know much about how states shape markets and vice versa, but less about the dynamics when states not only set market rules, but are also the sole producer of the good. This article takes up the case of citizenship by investment—“golden passport” programs that offer citizenship in recognition of an investment in a country—to unpack the challenges that appear when states commodify sovereign prerogatives. In these cases, the state holds multiple roles that generate conflicts of interest and a concern for credibility. To address these concerns, states may adopt two strategies: institute a division of labor in issuing the product, and outsource elements of supervision to third-party actors. Empirically, the analysis shows how migration service providers retooled murky discretionary grants of citizenship in peripheral countries into formal citizenship by investment schemes. The conclusion addresses how these strategies apply in markets for other sovereign prerogatives, particularly government debt, and discusses the implications for citizenship and neoliberalism.

Finance rests on a process of abstraction, based on various material devices that have been studied by economic sociologists in recent years. The fact that many of those devices are legal in nature has not attracted much attention, even though financial instruments are typically embodied in legal documents. This paper argues that interactions involving legal documents shape both financial markets and their regulation, by specifying the contextual elements that will be deemed relevant in interpreting financial commitments. It takes as a case study the emergence of swaps since the 1980s. Through their work in standardizing, commenting, and litigating swaps contracts, bankers’ lawyers were able to recast obligations between banks and their clients in more abstract terms, discarding all references to specific business projects. Such abstraction simultaneously allowed the spectacular development of swaps markets, their positioning on the fringes of regulations, and the strengthening of bankers’ prerogatives against their clients.