CLASSCRITS X Abstracts for Friday 9am Plenary
Critical Analysis: Law, Economy, Class & Inequality
Martha T. McCluskey, University at Buffalo, SUNY: Brief Introduction to ClassCrits
What is critical
analysis of law?
What distinguishes the ClassCrits lens on economic inequality?
Justin Desautels-Stein, University of Colorado: Towards Black Legal Thought: From Critical Legal Studies to Critical Race Theory and Beyond
In the conventional account of how critical theory arrived in U.S. law schools, the story begins in the 1970s with critical legal studies. Among its aims was the demystification of the contemporary understanding of law and economics. Rather
than take economics as solid foundation and law as mere superstructure, this first wave of critics sought to reverse the program and argue for the legal structure of the market, for the idea that a market economy is itself a legal concept. There were several reactions, left, right, and center, but the reaction with which I am presently concerned is the one that became critical race theory. With less interest in the structuralist approach to political economy and more focus on narratives of racial identity and subordination, critical race theory matured with a set of separate methods and objectives, if not an outright rivalry with critical legal studies. It is in the context of this conventional account that this Article poses a counterfactual question: What if the structuralist method of critical legal studies was brought to bear on the idea of race as a legal concept? What if, rather than imagine critical legal studies and critical race theory as separate paths for separate kinds of critical scholars, a partnered effort worked to structure the argumentative practices of race and political economy? In the ClassCrits spirit of interrogating this shared space in critical theory and law, this Article suggests that an analysis of the argumentative practices of race yields at least two structures of thought. The first is familiar, and I call it white ideology. The second isn’t familiar at all, and I call it “black legal thought.”
The bulk of the Article works at this second structure, but before summarizing what I think black legal thought might be, I should first say what I think it is not. In my rendering, black legal thought is not a view of law espoused by the representatives of any particular culture, ethnicity, race, or sub-population of human beings. That is, black legal thought is not a simulacrum of how black Americans or black Africans or anyone else thinks about law. Black legal thought is not, in other words, an identity. We can further the point by situating black legal thought with an analogue, black political thought. This much more familiar term typically refers to an intellectual canon of great African-American thinkers; African-Americans who thought hard and well about the political, economic, and social problems of race in the United States. If we follow the analogy, black legal thought might therefore suggest a similar canonical list of African-American jurists and their view of American law. But while the field of black political thought has certainly experienced its share of trouble (problems of essentialization, problems of canon selection, etc.), the trouble for black legal thought looks far more severe. Once we begin to seriously contemplate black legal thought, we flirt dangerously with Donald Trump’s prejudiced complaints about the inability of U.S. judges to conduct neutral adjudications because of their racial background. The problem: In developing the structure of black legal thought, we must reject essentializing and potentially racist suggestions or implications that might indicate a capacity for non-blacks to more neutrally navigate the terrain of American law. Whatever black legal thought is, it cannot be that.
The place to start constructing the structure of black legal thought is not black political thought, but white ideology. White ideology espouses a view of unfettered autonomy and supremacy for its designated subjects. How? In the context of liberal political theory, white ideology is a mechanism for solving the problem of free and equal membership in a given political community,
the problem of who is included and who is not. The solution is race, which functions in white ideology as a scientific means for justifiable exclusion. The effect is the making of race invisible for the membership, and ineluctable for the excluded. Racial identity becomes, in white ideology, a marker for subservient status by way of a dichotomy always masquerading as a unity. Whiteness, on this view, does not really indicate a people, and not even a social performance; it is the incident of power and belonging. And if white ideology denotes the effort to define the chosen by way of what they are not, whiteness emerges as the natural and the neutral. Everything else is raced.
It is this understanding of whiteness that delivers my intended meaning for black legal thought. To reverse white ideology, we require a structural complement for progressive expansion and inclusion. To reverse white ideology, we need a style of practice that makes audible the legal structure white ideology works to silence. If white ideology presumes a harmonious coherence in its constellation of exclusionary tactics, the argumentative practice of black legal thought is born in dissonance. As I argue in the Article, this form of dissonance is oriented by a founding set of antinomies, captured famously in what W.E.B. Du Bois called double-consciousness. Here is Du Bois’ articulation of the “gift” of double-consciousness:
After the Egyptian and Indian, the Greek and Roman, the Teuton and Mongolian, the Negro is a sort of seventh son, born with a veil, and gifted with a second-sight in this American world,—a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his twoness—an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.1
As Nahum Dmitri Chandler has suggested, double-consciousness has a radical potential for resisting white ideology, and it is this radical potential that forms the core of black legal thought. For if liberal political theory constitutes itself by way of an antinomy between individual freedom and social coercion, and if in its familiar registers liberal legalism mediates this antinomy in its various ways, the particular genius of black liberal thought is its way of using dissonance as a resource, its way of embracing this doubled constitution, this inevitable twoness. In its familiar registers, liberal legalism imagines a cleared reconciliation between its central theses, an open and harmonious convalescence. In the register of black legal thought, the jurist hears a break forever separating the theses of individual freedom and social control. And while it has been the aspiration of so many to lift that veil, to reconcile these warring threads, the aspiration of black legal thought is to deploy double-consciousness as a means for exploring antinomy as itself a fruitful source of becoming, a “passageway of irruption [leading]…to another world, beyond the possible as a given horizon.”2
1 W.E.B. DU BOIS, THE SOULS OF BLACK FOLK (1961), pp. 16-17.
2 NAHUM CHANDLER, X: THE PROBLEM OF THE NEGRO AS A PROBLEM FOR THOUGHT (2014), pp. 36-37.
James (Jay) Varellas, Univ. of Calif. Berkeley (Ph.D. candidate): The Invisible College of Political Economists of Law
Ten years into the Class Crits project, and nearly a decade after the global financial crisis of 2008-2009, neoliberalism continues its pattern of “failing forward” (Peck 2010: 6) as an intellectual and policy project. Scholars and policymakers practicing Chicago/George Mason-style “law and economics” continue to press forward with audacious designs for deregulation of even the financial sector that recently brought down the world economy (Peirce & Klutsey 2016) at the same time that the monopolization of vital industries goes largely unquestioned as legal and policy elites continue to follow Bork’s instruction to focus on short-term “consumer welfare” (Khan & Vaheesan 2017) and top presidential advisors openly discuss the “deconstruction of the administrative state” as a key objective. In this environment, the project of providing a critique of law and economics, which remains one of the most important vehicles for neoliberalizing the law, as well as an alternative framework for understanding the relationships between law and markets, remains as important as ever.
Martha McCluskey, Frank Pasquale and Jennifer Taub have recently framed the project of critiquing and proposing alternatives to law and economics for the contemporary era as one of promoting “contemporary approaches” to law and economics. Their new casebook, entitled Contemporary Approaches to Law and Economics (forthcoming), proposes to move beyond the “simple models of market-driven supply and demand out of touch with current economic realities” by engaging with “new economic issues and theory”; dispensing with the obsession with “efficiency” to the exclusion of other values such as justice, fairness and order; moving beyond a singular focus on microeconomics; and avoiding the bias of much of traditional law and economics scholarship by not “privileging the perspectives of the most powerful actors in the economy by presenting legal rules favoring these interests as uncontestable economic truth” (McCluskey et al. 2016: 297-98). Accordingly, we might view this project as seeking to supersede traditional law and economics with contemporary approaches that represent “methodologically diverse approaches to economics, integrating the best of historical, anthropological, and sociological approaches with a new emphasis on macroeconomics” (McCluskey et al. 2016: 300).
While the “contemporary approaches” framing certainly highlights important recent developments in economic thinking that diverge from the old orthodoxy still taught in Economics 101 and Introduction to Law and Economics classes (Beinhocker 2016), this paper aims to develop an alternative, and complementary, framing of the project of meeting the challenge of law and economics. Instead of superseding law and economics, the frame developed in this paper seeks to “put law and economics in its place” by situating it as but one project within a big tent of what we might call “law and political economy.” This approach also has the benefit of acknowledging and placing itself within the lineage of numerous intellectual traditions of resistance to the hegemony of orthodox economic thinking in the analysis of legal rules, institutions and systems that have persisted across a range of disciplines even throughout the neoliberal era.
In his classic essay on “The Invisible College of International Lawyers,” Oscar Schachter observed that “the professional community of international lawyers . . . , though dispersed throughout the world and engaged in diverse occupations, constitutes a kind of invisible college dedicated to a common intellectual enterprise” (Schachter 1977: 217). Similarly, the political economists who engage with law while working in traditions such as heterodox economics, economic sociology, comparative and international political economy, economic geography, critical theory, economic anthropology and legal realism can also be seen as constituting their own “invisible college dedicated to a common intellectual enterprise.” This enterprise is the use of diverse theories and approaches outside the paradigms of orthodox neoclassical economics and neoliberalism to engage with real-world problems of law and political economy. To be sure, an observer passing judgment at any particular time might conclude the resistance of this invisible college to have been a failure, but the post-colonial scholar Jennifer Wenzel has recently urged us to follow the example of Franz Fanon in “tracing noncontinuous traditions of resistance, where past failures take on new significance for present struggles” (Wenzel 2009: 7).
In the spirit of acknowledging and draw strength from traditions of resistance (both continuous and noncontinuous), this paper is animated by the belief that much of the hard work of thinking beyond law and economics has already been done by scholars in law and other disciplines who make up an invisible college of political economists of law. In an effort to begin the task of making more visible this tradition of resistance, this paper will attempt to map the contours of this invisible college across disciplines and intellectual traditions and to suggest potential new avenues for collaboration between legal scholars and social scientists who share an interest in the political economy of law.
Author Affiliation: Ph.D. Candidate in Political Science, University of California, Berkeley.
Author Contact Information: firstname.lastname@example.org, (510) 421-6301
Beinhocker, Eric. 2016. “Profound Changes in Economics Have Made Left vs. Right Debates Irrelevant.” Institute for New Economic Thinking Blog, https://www.ineteconomics.org/perspectives/blog/profound-changes-in-economics-have-made-left-vs-right-debates-irrelevant.
Khan, Lina and Sandeep Vaheesan. 2017. “Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents.” Harvard Law & Policy Review 11: 235-94.
McCluskey, Martha, Frank Pasquale and Jennifer Taub. 2016. “Law and Economics: Contemporary Approaches.” Yale Law & Policy Review 35: 297-308.
Peck, Jamie. 2010. Constructions of Neoliberal Reason (New York, NY: Oxford University Press).
Peirce, Hester and Benjamin Klutsey. 2016. “Introduction: Market-Based Financial Regulation.” In Reframing Financial Regulation: Enhancing Stability and Protecting Consumers, edited by Hester Peirce and Benjamin Klutsey (Arlington, VA: Mercatus Center at George Mason University).
Schachter, Oliver. 1977. “The Invisible College of International Lawyers.” Northwestern Law Review 72(2): 217-26.
Wenzel, Jennifer. 2009. Bulletproof: Afterlives of the Anticolonial Prophecy in South Africa and Beyond (Chicago, IL: University of Chicago Press).
Lua Kamal Yuille, University of Kansas, If Property were a Black Woman
Regardless of its ultimate commitments, frameworks, or tools, the starting point for almost all property thinking is the set of assumptions and beliefs about resource provisioning that is the center of the field known as economics. The economic foundations of property law, however, are primarily rooted in a particular version of economics. A body of justly distinguished property scholarship rests on the foundation that property, as an institution, is aimed at enhancing the neoclassical concept of utility given assumptions about human nature (i.e. rationality) and agency (i.e. that human actors choose freely). Even, the varied critiques of and departures from that norm implicitly or explicitly situate themselves with neoclassical economic thought as the starting point. That starting point is raced white and gendered male.
This project imagines an alternative in which the economics at the center of the foundation of property is not neoclassical but black feminist. Black feminist political economy—a categorization that itself reflecting a variety of schools of economic and political thought (liberal, radical, Marxist, separatist, etc.)—highlights the androcentric foundation of mainstream economics and the whiteness of androcentricity. A black feminist economic view problematizes the idea of “objectivity” central to the mathematical approach to economics held sacrosanct within the mainstream, suggesting it is itself the reification of masculinity and denigration of femininity, and recognizes how the commitments of such thinking ignores the material and social realities faced by black women. Black feminisms, moreover, reject the unstated inputs of concepts like optimality and scarcity, question the market as the principle site of resource ordering, and deny the postulate of both self-interest and choice. What might the institution of property look like if built on such foundations? This paper begins to answer to that question.
Dermot Feenan, Institute of Advanced Legal Studies, University of London, An Exploration of the Contemporary Relevance of Class for Law
Class has long been a category of social classification. Many significant progressive laws, principally in the field of labour and welfare, have been secured with reference to class. Class has been used as a key concept in theorising law, principally within Marxism. Much legal scholarship references class. Yet, class increasingly seems to be questioned as a category. True, concern is expressed regarding one of the traditional accompaniments to class difference: inequality; but now between ‘rich’ and ‘poor’ alone, the ‘1%’ and ‘99%’, the ‘elite’ and the unexplicated remainder. New categories vie for attention, including the ‘Precariat’ and ‘squeezed middle’. Conservative politicians’ rhetorical embrace of ‘working’ people, blurs the constituencies that traditionally distinguish left and right political parties. Class appears less and less frequently as a unit of analysis in legal scholarship. An attempt in the United Kingdom in 2009 to introduce legislation to prohibit discrimination on the basis of class foundered. Savage said after the Great British Class Survey in 2013 that classes were ‘being fundamentally remade’. Some say class is dead.
What accounts for these changes and what impact do they have for law? Certainly, post-structuralist and postmodernist theorising eschewed traditional class categories. The emergence of identity politics has been attributed as partly responsible for the eclipse of class analysis. New frames for analyzing sociality in relation to law – such as social movement theory and Actor Network Theory – have also been implicated in the apparent decline in class discourse. Neoliberalism and globalization have affected class organisation. Certainly, organised labour – which has historically been synonymous with the working class – is under growing threat.
Is class no longer relevant? Have social, political and economic changes rendered class redundant? This paper will explore these questions with especial reference to the decrease in the frequency in reference to class in legal scholarship, the contemporary challenges of theorising class and law, and whether and if so how class can remain a productive category for law.