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8 Questions at the Nexus of Law and Neoliberalism

What role does law play in neoliberal theory?

By the way, what for neoliberalism, is “law” anyway?

How do neoliberal thinkers understand law and state (or government) authority?

How does neoliberal theory reinterpret classical liberal legal ideas such as “rule of law” and “civil society”?

Have liberal legal ideas and institutions facilitated the rise of neoliberalism as a political program or project?

If neoliberalism has transformed law, do traditional liberal legal ideas, such as the separation of “law” and “politics” or the juridical restraint of arbitrary power, still have critical purchase in a neoliberal context?

If the rise of neoliberalism has transformed the legal system and its modes of legitimacy, is this “paradigm shift” a betrayal of the liberal tradition and its commitment to political freedom?

Or, might this “paradigm shift” be a result of that very tradition, arising from its commitment to contractual rights, private property rights, and the capitalist economy that these legal forms presuppose and protect?

Why does he call it the “so-called” free market?

Had to bail out the actor because they’re too big to fail

Pure neoliberal principle would’ve been to hold these big banks who made mistakes accountable

Gov should not step in to save them from themselves

Shattering of meta-narrative of so-called free market when 2008 financial crisis occurred

HISTORY MAP

CLASSICAL LIBERALISM

NEOLIBERALISM

Movement of progressive societies has hitherto been a movement from Status to Contract.”

In Middle Ages, men were bound by status (usually of birth) and had associate with society as such

In 19th century, the US had a society of contract

People are free to “form ties without favor or obligation”

This society “gives the utmost room and chance for individual development, and for all the self-reliance and dignity of a free man.” –William Graham Sumner

Do we agree with this? Obviously still inequalities that dictate these contractual relationships based on people’s statuses.

Lochner puts an end to this

Contract didn’t really show up until 18th century and climaxed in 19th century

US not a country built on contract at all, but easy to say that after Civil War

Democracy, similarly until the 19th century was a highly unfavorable term – Raymond Williams

Majority of political parties started declaring an appreciation for democracy in 20th century (for whatever reasons)

Neoliberal approach reshapes democracy in the image of capitalism – Kuhner

Classical Liberal “Free Market” (Laissez Faire) Capitalism

Society of contract

Everybody is equal and should be able to interact without state intervention

Economy is separate from social and political landscape

“Embedded” or Welfare-Capitalist Liberalism

State interferes to provide social safety net, otherwise, free market system

Market Neoliberalism

State works actively to reregulate society in the image of free market economy

Free market logic overruns social and civil life as a political ideology

Corporate Neoliberalsim

State interferes outside of the reregulation aspect to provide a social safety net for corporations

State bears the costs of private risks and idiosyncrasies

Moral hazard falls on the rest of society to maintain corporate exceptionalism

Classical liberal “Free Market” (Laissez Faire) Capitalism - holds that there are three distinct domains: Civil Society, The State, The Economy. The role of the state is to be neutral. Market freedom is natural and the inevitable consequence of the operation of the market in which the state does not intervene to advance the interest of one or a group of individuals over another. Classical Liberal.

“Embedded” or Welfare-Capitalist Liberalism - rejects this idea. Markets and the economy as a whole are embedded in society. Society can dictate and design markets to temper the excesses and inequalities to which unfettered free market capitalism will inevitably lead to. Adopt social welfare policies that are design to correct market failures such as barriers to entry. Also subscribes to the idea that there are still three distinct domains. It differs from classical in that there ought to be a threshold of existence of social welfare that is guaranteed to everyone. Especially the most vulnerable.

Market Neoliberalism - subscribes to a norm of market supremacy in which the state and the law are allowed to intervene in markets. Market is understood to be a social construct, an artificial entity whose nature and operation is determined by law and ought to recognize the primacy and supremacy of the market and be open to “market thinking” in every aspect of life. Every area of life can be “marketized”.

Corporate Neoliberalism – subscribes to all of those things. It is a kind of welfare capitalism for corporations. It is a delegation of authority to corporations to make and dominate the markets. To provide to corporations a subsidy which allows them to maximize their profit at the expense of other shareholders. Externalize cost that might otherwise be borne by the corporation

Lochner Era

Ritchie v. People (1895)

Legislature has no right to interfere with freedom to contract in any regard

Privilege of contracting is a liberty and property right

Need right to contract to have right to property

Labor is a type of property, so laborer has right to sell his labor as he pleases

Legislature cannot interfere with that

Is the Constitution “laissez-faire” or “contractarian”?

Maybe a Market-Dominant Neoliberal Constitution?

Per Mayer

How does this figure into the Neoliberal history?

Lochner v. NY

Freedom to contract above all else

State can’t limit freedom to contract to protect health of bakers

Seems as though freedom to contract is paramount

Neoliberalism would like this view of absence of state interference but it is still considered anti-canonical

Is Lochner a common law decision? No. The court is being asked to analyze a statute and the Constitution’s DPC. Is there a conflict between the two? This is a public law dispute. Not private law; See Sunstein

Sunstein, Lochner’s Legacy

“The Lochner Court chose the status quo, as reflected in market ordering under the common law system.”

“he Lochner court thought that maximum hour legislation was partisan rather than neutral-- selfish rather than public-regarding.”

“But Lochner was wrongly decided, and one of the reasons that it was wrong is that it depended on baselines and consequent understandings of action and neutrality that were inappropriate for constitutional analysis.”

“the court failed to consider how a failure to enact the legislation was not nonintervention at all but simply another form of action”

“The Lochner Court regarded consideration of “whose ox is gored”—when those helped were the disadvantaged—as impermissible partisanship; consideration of the plight of the disadvantaged was insufficiently public or general and not neutral at all”

[Inaction is a type of action]

PB: Common law and status quo are not natural laws themselves; in fact, they are political decisions that have been fashioned based on cultural beliefs

Thus, the Lochner Court erred in finding that government intervention to meet cultural norms and provide for the public good is not necessarily against the common law, just as with redefining the legal framework around race

Some good to come from erupting status quo!; See Ideology (Althusser)

Raegan/Thatcher Era

Alleged beginning of real neoliberalism

Movement away from government action

Movement away from public use and toward privatization

Financial Crisis

Still don’t really know what happened here

Subprime loans…

Was the Obama admin (as portrayed by the film) a Wall Street govt?

“Leading from behind” as a govt and deferring policymaking to market actors. Is this the case? Who is leading whom?

How would an adherent of market neoliberalism have responded to the financial crisis?

Market not just as a hand but a mind with its own rationality, outwitting the lagging law.

Intelligence of the market based on inherent self-interested market behavior.

Market as source of knowledge/predictor with more info as opposed to constricting law’s info deficit.

How do we move the lawyer out of the way so that the market actor can do what it must do?

Film, Heist: Who Stole the American Dream?

Film, Inside Job

Film, Margin Call

Krauthammer, How Margin Call Gets it Right About the Financial Crisis

“collective action problem”

In a system where no one person can make a societal difference, Krauthammer explains that individuals will naturally act in their own self-interest.

GENERAL NEOLIBERALISM IDEAS AND DEFINITIONS

Overview

From “Neoliberalism and Politics, and the Politics of Neoliberalism,” Ronaldo Munck

Neoliberalism is in the first instance of a theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade.”

If market does no exists (in areas like land, water, education, health care, social security, or environmental pollution) then they must be created, by state action if necessary**

Only use for the state is to maintain market freedom/dominance

State should not go any further than this

Why?

State cannot possibly possess enough information to second-guess market signals (prices) and because powerful interest groups will inevitably distort and bias state interventions (particularly in democracies) for their own benefit**

Neoliberalism values market exchange as a guide to all human action, ethics in its purest form

Holds that “the social good will be maximized by maximizing the significance and frequency of market transactions, and it seeks to bring all human action into the domain of the market.”

“Deregulation” is really now a “re-regulation” to transform society “in the image of the market and that state itself is no “marketised.”

PB: *Neoliberalism, by putting the ideology of market efficiency at the forefront of society’s social, political, and civil discourse, redefines our views of success, value, and importance

Rather than caring about togetherness, equality, even love, neoliberalism has us pursuing return of human investment, capital gains, economic success, and efficiency

While the market system may be theoretically good, it doesn’t quite equate with happiness and pure utilitarianism

Brown – “neoliberal transformation of democracy through rights adjudication”*

Powell Memo

“The American economic system is under broad attack”

“Variously called: the “free enterprise system,” “capitalism,” and the “profit system”

“American political system of democracy under the rule of law is also under attack, often by the same individuals and orgs who seek to undermine the enterprise system”

Why would they want to do this?

Businessmen must “confront this problem as a primary responsibility of corporate management.”

Need businesspeople to go to war, to save the system they know works for all

“Ultimate issue may be survival, and all that this means for the strength and prosperity of America and the freedom of our people”

“Not merely a matter of economic. It is also a threat to individual freedom.”

Grandiose statements of existential threats

This isn’t an ideological issue; it’s a survival issue

Blending of spheres of life (economic sphere blending with civil sphere blending with political sphere)

What’s rationale for thinking downfall of enterprise system will lead to loss of individual freedom?

“As the experience of the socialist and totalitarian states demonstrates, the contraction and denial of economic freedom is followed inevitably by governmental restrictions on other cherished rights”

“It is this message, above all others, that must be carried home to the American people”

Do we think he believes this himself or is looking for power?

Regardless, intertwining of economic and civil freedoms

“The assault… has gradually evolved over the past two decades, barely perceptible in its origins and benefitting from a gradualism that provoked little awareness much less any real reaction”

Imperceptible enemy, shrouded with uncertainty and fear

The way the Left fears climate change, Powell fears these “attackers”

This can be imagined however one pleases based on preconceptions around race, sex, nationality, politics/religion, etc.

Origins are difficult to identify, “there is reason [*although proof is unstated] to believe that the campus is the single most dynamic source”

Attack education, but not necessarily the system of education

Nevertheless, campus “hostility” must be addressed

Must restore qualities of “‘openness,’ ‘fairness,’ and ‘balance’… to the academic communities”

Can rewrite errors in textbooks like the civil rights movement did…

PB: not sure what to do with that info for exam ^

TV news also plays a role in critiquing the enterprise system and eroding the “confidence in ‘business’ and free enterprise”

Students learn in school to hate business, see journalism as a good career escape, flaunt these new ideas on national TV

PB: not an attack on the Right per se, but one specifically on the “enterprise system”

What is the State’s role?

“Payoff… is what government does.”

Powell believes neither American businessman, corporations, nor millions of corporate stockholders have much influence in government

“American business executive is truly the ‘forgotten man’”

Cannot wait for “public opinion to be affected through education and information”

“Political power is necessary”

Must be cultivated and used aggressively

“without embarrassment and without the reluctance which has been so characteristic of American business”

PB: such an interesting (self-)perception of American business

What is the Court’s role?

American business and enterprise system affected as much by courts as other two branches

“Especially with an activist-minded Supreme Court, the judiciary maybe the most important instrument for social, economic and political change.”

Why? What have we seen to prove or not prove this?

Crouch, Can Neoliberalism Be Saved From Itself?

“Neoliberalism is a political strategy that seeks to make as much of our lives as possible conform to the economist’s idea of a free market.”

Economist believes free market is epitome of good and ethic so why not transfer that to every facet of our lives as a political agenda

“All one really needs to understand what it [neoliberalism] is about”

“‘Reform’ has come to be a euphemism for neoliberalism”

Any reform of some institution has mean marketising it (removing regs, cutting taxes, reducing role of gov. in general)

Is this true?

Most neolibs believe in capitalism economy

“Where most wealth is in private hands and market transactions dominate”

Neoliberalism ≠ Capitalism

Not all facets of capitalism involve total faith in markets and rejection of any economic role for government that we find in neoliberalism

Neoliberalists = Capitalist Extremists

Neoliberals obsessed with calculation and measurement

Science of economics

Government is particularly incompetent

Market, however, is self-correcting in a way that is more responsive and flexible than anything that can be achieved by government regulation

PB: so interesting really, do they really believe this? Seems, I don’t know, far-fetched?

The most extreme neoliberals believe there are no public issues at all

Example of a big W for neoliberals:

Having the maximization of shareholder value become the sole legal object for firms in the most advanced economies; See Hobby Lobby, Dodge

Chief weaknesses of the neoliberal approach?

Negative externalities

Risk is put on the public, not the private entities

Existence of public goods

Water, air, etc.

Structural informational imperfection & asymmetry

Sub-optimal or imperfect competition

Structural inequalities in & barrier to Market Access

Salutary benefits of neoliberal approach?

Discipline of price and calculation

Recognition of the limitations of Democratic Government

Trade facilitation & Reduction of barriers to Market Entry

“Neoliberal Internationalism”

Grewal & Purdy, Law and Neoliberalism

Hmm.

Ok, I think!...

Democracy is incompatible with capitalist imperatives because the two ideologies have combatting conceptions of personhood and politics

“Democratic citizens tend to hold a set of expectations about economic political life that may… contradict market logic”

Ex. Reasonable economic opportunity, distributive fairness, workplace security, community and solidarity, civic equality

Neoliberalism, then, works as a form of argumentation that endorses market imperatives of democratic claims

Neoliberalism gets called on to “press against democratic claims in the service of market imperatives”

In battle between market economies and non-market values, neoliberalism comes to rescue the free enterprise system in the requirements of democratic legitimacy

Kuhner, Citizens United as Neoliberal Jurisprudence

Neoliberalism “is a political philosophy based on a particular variant of economic theory and that it is intended to fashion a political order friendly to capital”

Chicago School brand:

“much of politics could be understood as if it were a market process, and therefore amenable to formalization through neoclassical theory”

Examples? How could politics be better by imagining it as a market process?

Voters and politicians are out to maximize their own gains

Biased and greedy and corrupt, inherently

Neoliberalism sees “the state as merely an inferior means of attaining outcomes that the market could provide better and more efficiently”

Based on two realizations:

(1) the market would not naturally conjure the conditions for its own continued flourishing**

(2) the state must be reengineered in order to guarantee the success of the market and its most important participants, modern corporations

Feher, Self-Appreciation; or the Aspirations of Human Capital

Could we “defy neoliberalism from within – that is by embracing the very conditions that its discourses and practices delineate?”

In order to counter their worldviews and replace them with better ones that aren’t so inherent to market economies

PB: Basically, Inception.

“The rise of human capital as a dominant subjective form is a defining feature of neoliberalism”

Neoliberalism different than utilitarianism

Utilitarianists seek to maximize their satisfaction

Neoliberal subjects, contrarily, see satisfaction as coming from “the level of their self-appreciation or self-esteem”

And what defines self-appreciation? What is success?

Neoliberalism “treats people not as consumers, but as producers, as entrepreneurs of themselves or, more precisely, as investors in themselves”

Neoliberalism sees people as “human capital that wishes to appreciate and to value itself and thus allocate its skills accordingly;” See Education (Coco, Maisano)

The Left can get behind neoliberalism by seeing different ways of appreciating and valuing oneself

“A competition over the conditions and modalities of the valorizing of human capital, over what behaviors deserve to be included in my portfolio because they allow me to appreciate and to value myself”

PB: By redefining success, the Left is working in a framework that is inherently neoliberalist

If all subjects work to invest in their human capital, seeing the world as a competition and market success as life success, even people who feel that there should be free education will go to law school and take hundreds of thousands of dollars of debt for the chance to make something of themselves financially

Neoliberal subjects do not own their “human capital; they invest in it”

Film, Free to Choose, “Who Protects the Worker?”

Something about Black people being “the exception” to the market that was crazy and fucked up, I don’t remember

Film, Free to Choose, “Who Protects the Consumer?”

Don’t remember

Ideology

“The very word ‘ideology’ is apt to create misunderstandings as soon as it is uttered” – Judith Shklar

Lawyers produce ideologies – Robert Gordon

Just trying to explain and rationalize their worldview in terms of some general normative conceptions

PB: Molding law to meet ideological viewpoint

Legal works/actions are representative of general ideological and political conceptions

Working within the legal framework is inherently a confirmation of that framework

Awareness:

Very few lawyers are “self-consciously doing anything” like producing ideology

Think of themselves as practical people doing practical things

“Ideology represents the imaginary relationship of individuals to their real conditions of existence” – Louis Althusser

Laws are obligations based on what is deemed to be legally true (which is ok)

Legal ideology believes in ideas based on natural law and the, using moral supplements, morphs into how the legal system should function based on these natural and moral ideologies

Law, therefore, is a system that “cannot exist all by itself”

Needs the state on the one hand, and the legal/moral ideology on the other

Ideology works to “interpellate” human beings as subjects

Combination of ‘consciousness of social actors’ and elaborate intellectual doctrines of society

Ex. “hey you” subjectifies

Ideology inherently works to remove oneself from a particular perspective and into another (of human subjects)

To see something as ideology is to focus on the way it operates in the formation and transformation of human subjectivity” – Therborn

Per Terry Eagleton:

Ideology is the (largely concealed) “structure of values which informs and underlies our factual statements”

“The ways in which what we say and believe connects with the power structure and power-relations of the society we live in”

Need to have “some kind of relation to the maintenance and reproduction of social power” (whatever that means)

Not every one of our beliefs falls into this realm (some are intrinsic I guess)

However, ideologies are shaped by society and dynamics therein

PB: we believe what we believe for certain reasons and neoliberalism offers an opportunity to ingrain in human subjects a certain view of life that affects their beliefs and the ways in which they act and behave

How much are we being indoctrinated? How much are high-level neoliberalists aware of what they’re doing?

Hegemony

[Why is ideology useful analytic to understand shift from liberal to neoliberal legal thought?

Legitimacy of law rooted in idea that law is a science, a truth that can be objectively or at least inter-subjectively established; a mode of social practice that can claim some characteristics of science (objectivity, neutrality, etc.)

Myth of neutrality

Law as domain for power politics; lawyers as brokers/agents of power.

Ideology not as just thought but social action.

Notion of hegemony can help us understand how people consent to oppression and dominance; creates common sense/pragmatic/TINA (there is no alternative) e.g., TINA in relation to capitalism, prisons, etc.

Law under neoliberalism especially becomes machine for “manufacturing misconsent”

Ideological fantasy – we know what we are doing isn’t true; but we are going to practice it anyway (see McKlesky v. Kemp)

Ideology’s power is in its being timeless, ahistorical, experienced/felt, inevitable]

INFLUENCES ON LEGAL DOCTRINE/THEORY

Per Chris Maisano-

Neoliberal governmentality seeks to subject our social life to the logic of the “enterprise system”

Create subjects whose moral character and economic activity resemble that of the risk-taking entrepreneur

PB: Everyone’s ideology is based in investment (human capital)

Not about morality or doing good, but making something of yourself (defines success, etc.)

Blends neoliberalism with the spirit of the people it infects

American ideal to have the possibility to take a loan, go to college, and take a chance to make something of yourself

See Education

Neoliberal government “encourages debtors to look to the market for self-improvement and personal security”

Only way to succeed is through access to credit and the financial market

Ex. student taking debt to pay for college, homeowner taking subprime mortgage, worker with 401(k) plan

Criminal Law

Posner, as a strict economist, believes that the major reason for criminal law in a capitalist society is to prevent people from “bypassing the system of voluntary, compensated exchange” (i.e. the market)

Not unjust, but inefficient to force transactions when the market is by definition the most efficient method of allocating resources (By what definition?)

Tony Platt believes…

“The modern police system was designed to keep the marginalized in their place and to warn the poor of a fate worse than poverty”

Harcourt, Neoliberal Penality: A Brief Genealogy

“By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off… as the only space where order is legitimately enforce by the State.”

“Precise combination of order in the market and government at the border that helps shape the modern neoliberal vision of penality”

Neoliberal penality is an ideology that allows for the State to interfere in the carceral sphere while avoiding the marketplace

Further, by employing Posner’s belief of a criminal as a market deviant, neoliberalism allows for this punishment as a form of market harm

Natural order has “metamorphosed today into the belief in the efficiency of the market”

“The very definition of crime turns on the notion of natural efficiency”

To them, but do we believe this? Seems implausible in many spheres of retributive criminal justice and prison industrial complexes.

Prisons are almost entirely incapacitating to protect the wider community with no other functions (least of all rehabilitation)

Kaplan-Lyman, A Punitive Bind: Policing, Property, and Neoliberalism in NY City

Real world example through the use of stop-and-frisk as neoliberal penality

Police play a major role in “regulating and disciplining the subjects of the neoliberal state” apart from the actual criminal justice system

Police are a problem apart from the criminal justice system that reinforced negative ideologies and creates a toxic system of policing in communities

US DOJ, The Ferguson Report

Proof the belief is run greedily with the incentive of profit leading everything else

Mainly focused on the poor, getting poor people to pay more

One set of ideals for the head of the state another for the body

Urie, Ferguson and the Logic of Neoliberalism

“The role of the Ferguson police using asymmetrical social power to take economic wealth from vulnerable citizens demonstrates the implausibility of this theorized differentiation in the realm of the political.”

“Slavery in the U.S. was ‘legal’ until it wasn’t.”

PB: Law corroborates social impacts; legal system can define (or at least affect and influence) societal norms

Privatization and Individualization of society allows blame to be put on “bad actors” rather than lack of public assistance

“What is legal and what isn’t is determined by who has social power, not by the acts themselves.”

Ex. police can kill on camera, poor people cannot

[Focusing on generating revenue

Fees or processes that impose barriers on efficiency

Economic taxation/extraction without protection; actually paying for your own oppression]

Wacquant, Crafting the Neoliberal State: Workfare, Prisonfare, and Social Insecurity

Centaur state

Protect the head of society through neoliberal principles guided by efficiency

Ignore the body of society through non-neoliberal principles that don’t abide by rules of efficiency and rather allow state intervention for poor market actors

Why not allow state intervention through welfare as opposed to criminal justice? Same state resources being used…

PB: Proves an inherent discriminatory intent to marginalize the poor and historically Black and Brown communities

If state intervention on the boundaries would be permissible, why not provide welfare if it has the same costs as penality

By not doing this, it shows that there is a preference not for equality, but for market exclusivity

[Tension between this official story of legal rights/voting/government and lived experience of biopolitics in which language of rights/limited govt. the individual is not the principal protagonist but rather, populations. Have we moved from a political society where government has become governance? Perhaps some people get government, some get governance.

Education

Ps want to bring an element of “sunlight” or “transparency” to the way law schools report post-grad employment data and salary info, by requiring that they make critical, material disclosures that will give both prospective and current students a more accurate picture of their post-grad financial situation, as opposed to the status quo where law schools are incentivized to engage in all sorts of legerdemain when tabulating employment stats.”

Legal job market was contracting, but law schools were matriculating an unprecedented number of students

“Seething army of unemployed law school grads” -Maisano

Hardest part about being a lawyer in NY is getting accepted to Columbia/NYU then waiting for jobs to come to you

We live in a “portfolio society” whose animating spirit is the logic of finance

“Education, among other things, is conceived as a form of ‘human capital’ rather than a social good, an investment security for one’s personal economic portfolio rather than the foundation of democratic citizenship.” -Maisano

Student debt is just a risky investment

See Feher

PB: Law school is not an opportunity to do democratic good or even shape the laws

It’s a business. Driven by economic concerns.

Attempts to get students not for learning or making lawyers, but for making money, despite their inevitable unemployment. Otherwise, why lie?

Bleeding into spheres reserved for moral/political matters

Neoliberalism infects American ideology - Maisano

Good to take a loan, go to school, and try to make something of yourself

Invest in yourself!

Turns social life into an entrepreneurial activity – i.e. reward of investment - Maisano

Not going to school to learn and be a better democratic member of society

Rather, going to invest in yourself for future gain

“Attainment of future returns above all other concerns”

Marketises social life

Forces us all into competition with one another

[The discipline is now more interdisciplinary. Namely, more economic focused. See teachers at CLS who aren’t even lawyers.

Neoliberalization of the law. Moves lawyer away from being a professional but now more of a business. A legal entrepreneur.]

Encourages debtors to look to the market

Reframes the question to blame predatory practices from schools, when it should be about the State creating a debtfare state, as opposed to one that facilitates its citizens to get an education – Soederberg

Not feudal to indebt people, but capitalist to have them take on loans in their path to economic success – Maisano

Do we agree with this?

[Christopher Columbus Langdell (developed the case method with a focus on appellate cases). Heavily edited excerpts.

Structured education in a way that made legal education be constituted and studied scientifically]; See Crouch

Fish, Neoliberalism and Higher Education

Universities have followed in neoliberal paths by making the school about money rather than enlightenment

Students thus become debtors in an entrepreneurial society in which it is increasingly difficult to capitalize on their investment

Neoliberalism, David Harvey explains, delivers a “world of pseudo-satisfactions that is superficially exciting but hollow at its core.”; See Purdy

Coco, Mortgaging Human Potential: Student Indebtedness and the Practices of the Neoliberal State

“Educational goals shifted” since 1980s

Purposes of higher education were “tested against its economic utility”

By 1980s, federal and state legislative bodies worked to make education “subservient to business interest and market logic”

“Education achieved solely for individual personal gain”

Not for the betterment of self and society

Only to make students more marketable to obtain jobs

Do they even do this? See MacDonald, Gomez-Jimenez

“If a degree is unlikely to pay for a high-paying job, then the degree is worthless”

PB: Another way of looking at MacDonald, Gomez-Jimenez is that neoliberalism has made the student think the only reason to go to law school is to get a job, when in actuality it is for the betterment of society and self

What are the problems here? How could this hurt/better society?

Risk falls on student

Democracy is in tension with extremes of good for the individual and good for the collective

If one extreme takes the other, we get an oligarchy instead of a democracy

Need education to engage in co-production, which is necessary to democracy’s survival

Yet, in America, education is increasingly reserved for fewer and fewer people (those with capital)

Destruction of an open education system is therefore destroying the “maintenance of a free society”

How is this in tension with Powell’s idea of preservation of the free enterprise system for the maintenance of a free society?

How does the neoliberal vision of education relate to this further?

MacDonald v. Cooley/Gomez-Jimenez v. NYLS

MacDonald was allegedly promised to retain employment after going to law school

Spent tons of money getting a JD and then couldn’t find a job after school

Sued the school for flase promises

“This action seeks to remedy a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”

Per Maisano-

“In denying Ps relief from their debts, judges and appellate panels often seek to encourage economic behavior more akin to that of a competitive firm than a healthy human being.”

Lawyers shaping ideology- see Gordon

Corporations

Why the move to a corporate welfare state?

Neoliberal thinking made up of businesspeople and corporate sponsors?

Privatization away from state power?

Most important market actor

[Norms/assumptions of corporate neoliberalism: money is speech; corps are persons; democracy is a market.]

This ideology reinforced by courts

[Neoliberalism as a project shapes not just const. right of corporations but also in getting us to identify with corporations.]

Per Kuhner:

Neoliberalism sees “the state as merely an inferior means of attaining outcomes that the market could provide better and more efficiently”

Based on two realizations:

(1) the market would not naturally conjure the conditions for its own continued flourishing

(2) the state must be reengineered in order to guarantee the success of the market and its most important participants, modern corporations

Still don’t understand why corporations are so pivotal?

History:

US far exceeded any other nations in chartering corporations from 1790-1860

US was the first nation to incorporate

“Might be called the first corporate nation” – Gomory & Scylla

Definitions:

Three Conceptions of Corporate Identity:

(1) Aggregation of Persons? Or Separate Personality?

“Aggregation” vs. “Entity” Theories of Corporate Identity

(2) Artificial or Natural?

“Artificial” Creatures of state law and policy vs. “Natural” products of market activity

(3) Public or private?

Acts are public and social vs. private and individual

Separate entity with its own rights and obligations, different from those of its shareholders

Regardless of how many shareholders it has

Form of organization used by human beings to achieved a desired ends – Alito

People (shareholders, officers, employees) associated with corporation are protected when rights are extended to corporations

Ex. 4th amend. privacy rights to corps are for the people in them

Corps. “separate and apart from” the human beings who own, run and employ them, cannot do anything at all

PB: Think Theseus’ Ship here, if an entity can be entirely replaced by new people, does that make it a new entity or the same entity? How do rights play in here?

If corporations are people (as Mitt Romney says) then we can draw a pretty clear line to psychopathy of any corporation – per Dr. Robert Hare

PB: Whatever we believe ideologically about corporations shapes our legal indoctrination around those entities

Theories:

(1) The shareholder theory

See Dodge v. Ford Motor Company

Corp is organizaed and carried on “primarily for the profit of its stickholders”

Powers and rights should be deployed to that end

(2) The management theory

Management that runs a corporation can operate it in their own interests and divert resources to their own uses

(3) The stakeholder theory

Those who are affected by the corporation should control its goals

To build and enhancee the public good

Should have a symbiotic relationship between business and society

[Political relationship between state and corporation (or those persons making use of the corporate form) i.e. U.S. as corporation nation. Corporation as a powerful instrument and arena for construction of US national identity. A way for the state to project its own identity through use of its police power (see McCullough vs. Maryland, where Marshall has to dismiss fed govt’s incorporation of a national bank against the argument that use of incorporation was a power that the fed govt did not have unless it was conferred on fed govt under constitution)]

Burwell v. Hobby Lobby

Obamacare wanted to force employers to provide birth control to its employees

Goes against religious beliefs of the owners of Hobby Lobby

“Closely-held” corporation doesn’t have to provide employee healt-insurance coverage for methods of contraception when it goes against their “sincerely held religious beliefs” thanks to the Religious Freedom Restoration Act (RFRA)

Imposes a substantial burden on religious exercise without serving a compelling gov. interest in the least restricting means possible

Congress has other ways to provide contraception other than forcing employers who don’t agree with it to do so (not sure what, though)

Immunization is a good example of forcing employers against their religious beliefs (See! We’re still being reasonable!)

Main legal fiction: corporations fit within RFRA’s definitions of “persons”

[Distinguish between doctrinal legal discourse and ideological discourse.]

See corps as extensions of people with the same rights as those who run them

Millon, Theories of the Corporation

What corporations are defines how the law ought to treat corporate activity

Legal theories translate into legal rules

Corporate theory legitimizes or criticizes corporate doctrine

What is the purpose of corporations? Just to make money? Any different than neoliberal subjects at that point?

Film, The Corporation

Takes on idea of corporations as psychopaths with the facts!

Brown, When Firms Become Persons and Persons Become Firms: Neoliberal Jurisprudence in Burwell v. Hobby Lobby

Corporations have so much power that treating them as people diminishes the actual rule of the people

Creates “intensification of inequality,” “expansion of social political capacities of big capital,” and “de-democraticzation and diminishing of the meaning and exercise of rule by the demos, and the impotance of rights to securing that rule”

What came first the chicken or the egg – PB

Brown posits that the financialization of humans as made it easier to see corporations as people

Neoliberalism works to financial human subjects

After this, it is very easy to extend personhood to corporations

People and corporations (in defining success) “share the same aims, conduct, and mandate” to seek capital gain

Rights follow these perceptions

If all subjects are meant to see capital gain, “rights for purposes and spheres other than capital enhancement and… nonmarket formulations of political and ethical life” vanish

Rights don’t secure political equality, freedom, or popular sovereignty, but rather, market freedom

Voting/Democracy

Neoliberal approach reshapes democracy in the image of capitalism – Kuhner

[Norms/assumptions of corporate neoliberalism: money is speech; corps are persons; democracy is a market.]

[Neoliberalism as a project shapes not just const. right of corporations but also in getting us to identify with corporations.]

Grewal & Purdy, Law and Neoliberalism

Hmm.

Ok, I think!...

Democracy is incompatible with capitalist imperatives because the two ideologies have combatting conceptions of personhood and politics

“Democratic citizens tend to hold a set of expectations about economic political life that may… contradict market logic”

Ex. Reasonable economic opportunity, distributive fairness, workplace security, community and solidarity, civic equality

Neoliberalism, then, works as a form of argumentation that endorses market imperatives of democratic claims

Neoliberalism gets called on to “press against democratic claims in the service of market imperatives”

In battle between market economies and non-market values, neoliberalism comes to rescue the free enterprise system in the requirements of democratic legitimacy

Citizens United v. Federal Election Commission

Corporations are allowed to spend money on ads whenever they want before an election, so long as they say they are responsible for it

Free speech for people, of which corporations are!

[SCOTUS as anti-majoritarian force]

Kuhner, Citizens United as Neoliberal Jurisprudence

Two stand-outs from the majority opinion:

(1) Espouses a dogmatic, free market form of economic theory

(2) It is printed in an opinion that authoritatively defines the terms of the First Amendment

Combo of capitalist ideology and caselaw creates neoliberal jurisprudence

Def: the use of neoclassical economic theory as judicial reasonsing

Neoliberalism becomes “an explicitly ideological variant of legal philosophy that seeks the creation of an unregulated market for political goods”

Majority has redefined democracy on the basis of this fere market approach to constitutional values

How?

Majority opinion consists of “rhetoric of censorship and its illegality”

Firmly rooted in liberal democratic tradition and so tightly aligned with First Amendment

Has nothing to do with economic theory (on its face)

Nevertheless, it is capable of “obtaining the allegiance of everyday people and even progressive crusaders” who aren’t the ones that usually stand for corporate rights

“This rhetoric, however, is paper-thin”

Real concern is in maintaining a “veritable free market for speech”

Infusing economic theory into political actions

PB: Neoliberalism here attempts to merge politics into the logic of economic theory of free markets

Marketisation of free speech in a way that protects corporations (a major goal of (corporate) neoliberal belief)

Film, The Best Democracy Money Can Buy

Guy with the hat

Proves there are tactics to keep people from voting

Proves inconsistency of Citizens United

Not about more voting access or more freedom of speech, rather the right kind

Brown, “Law and Legal Reason”

While Kennedy “marketizes every sphere, [his opinion in CU also braids key strands of civil rights discourse into the opinion to bolster his argument for deregulating corporate speech in the political sphere.”

“Civil rights language works as a supplement to the marketplace language”

Colonization of civil rights language

PB: Again, propaganda? Do they know they are doing this? What is the approach and is it intentional? The Court is certainly on a different legal philosophical plain than the common lawyer no?

“Rhetoric ought not obscure reality.”

Maybe they know they are doing it but from an ideological point of view.

Contracts

Movement of progressive societies has hitherto been a movement from Status to Contract.”

In Middle Ages, men were bound by status (usually of birth) and had associate with society as such

In 19th century, the US had a society of contract

People are free to “form ties without favor or obligation”

This society “gives the utmost room and chance for individual development, and for all the self-reliance and dignity of a free man.” –William Graham Sumner

Do we agree with this? Obviously still inequalities that dictate these contractual relationships based on people’s statuses.

Lochner puts an end to this

Contract didn’t really show up until 18th century and climaxed in 19th century

US not a country built on contract at all, but easy to say that after Civil War

Democracy, similarly until the 19th century was a highly unfavorable term – Raymond Williams

Majority of political parties started declaring an appreciation for democracy in 20th century (for whatever reasons)

Ritchie v. People (1895)

Legislature has no right to interfere with freedom to contract in any regard

Privilege of contracting is a liberty and property right

Need right to contract to have right to property

Labor is a type of property, so laborer has right to sell his labor as he pleases

Legislature cannot interfere with that

Is the Constitution “laissez-faire” or “contractarian”?

Maybe a Market-Dominant Neoliberal Constitution?

Per Mayer

How does this figure into the Neoliberal history?

After AT&T:

From status (feudalism) to contract (liberalism) to “forced” contract (neoliberalism)

Contract law reflects judicial efforts to achieve efficiency - Kronman

Two theories of contract:

Contract as Promise

Contract is “a promise for the breach of which the law gives a remedy or the performance of which the law… recognizes a duty”

“Promise between 2 or more parties that the law recognizes as binding by providing a remedy in the event of breach”

But what is a legally enforceable promise?

Moral story of contract

Subject is homo moralis

Movement away from this today from neoliberalism

No human capital, no entrepreneurship

Contract as Bargain**

“When a promise (consideration) is provided from each side in exchange for a return promise”

Without this, there “is no enforceable contract, but merely a gratuitous promise”

Essentially just consideration

Market story of contract

Consisting of:

(1) Disaggregation or separation of law and morality

(2) Identification of law and economy

Ethics to economics

Subject is homo economicus

“Arms-length” transactor

Economic self-interest; See Maisano (education)

Efficiency

Def: “Where resources are being used where their value is greatest, we may say that they are being employed efficiently”

Neoliberalism stresses this

However, it seems to be highly subjective and based on ideology

“Greatest value” to one (SCOTUS judge) may not be the same for another (poor, single mother)

Less subjectively, Posner, Economic Analysis of Law posits:

Efficiency is when human satisfaction is maximized

Measured by willingness to pay

Value also defined by willingness to pay

Court endorses marketization of state/society; See Munck

Not about morality, but efficient free market use

Main ex: efficient breach

PB: Do people have the agency to act “rationally” if it goes against established principles? Are willingness to pay and ability to pay the same thing?

We don’t have proof of human nature based on willingness to pay, we have the ossification of human willingness (or lack thereof) to pay based on established normative assumptions

The promise of economic law is incredible, but it isn’t true (almost cult-y)

Check back in with Grewal & Purdy here:

Neoliberalism argues for market imperatives cloaked as democratic principles

Forced contract certainly moves us away from free and independent society

Emboldens inequality and maintains disenfranchisement under the guise of market freedom

Lochner v. NY

Freedom to contract above all else

State can’t limit freedom to contract to protect health of bakers

Seems as though freedom to contract is paramount

Neoliberalism would like this view of absence of state interference but it is still considered anti-canonical

Sunstein, Lochner’s Legacy

“The Lochner Court chose the status quo, as reflected in market ordering under the common law system.”

AT&T v. Concepcion

Intro (Background)

Class action meant to overcome problem that small recoveries do not provide the incentive for an individual to bring a solo action – Anchem Products v. Windsor

Solves this problem by “aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor”

“Realistic alternative to class action is not 17 million individual lawsuits, but zero individual suits, as only a lunatic or a fanatic sues for 30 dollars” – Posner, Carnegie v. Household Int’l

Facts (CA Superior Court decision)

Discover Bank found that “when the waiver is found in a consumer contract of adhesion” for predictably small sums and when it is alleged “the party with superior bargaining power (*almost always the corporation) has carried out a scheme to deliberately cheat large number of consumers out of individually small sums of money” then that party has essentially committed fraud or willful injury and such waivers are unconscionable and shouldn’t be enforced

Concepcions had problem with ATT offering free phones

Adhesion contract said they could only deal with individual arbitration, no class actions

(Likely no one would help with individual arbitration)

Suing for unconscionability under CA law

Holding (Scalia)

FAA allows for individual arbitration at the expense of class actions; preempts CA law

Arbitration has benefits that ATT should be able to contract for

All these benefits lean to D

“streamlined proceeding and expeditious results”

CA law more formal and thus slower, more expensive, more procedurally complex

Requires procedural formality

“Greatly increases risks to the Ds”

Rule is limited to adhesion contracts but “the times in which consumer contracts were anything other than adhesive are long past”

Very pro-corporation

All contracts are now adhesion, boilerplate, non-negotiable (for efficiency?)

Dissent (Breyer)

CA rule is “consistent with the basic purpose behind [FAA]”

No basis “that class arbitration is fundamentally incompatible with arbitration itself”

Outside Stats

Consumers filed 600 arbitration cases and 1,200 individual federal lawsuits on average each year of these studies

Roughly 32 million consumers were eligible for relief through class action settlements in federal court during these years

Companies rarely block individual lawsuits for arbitration, only class actions

65% of class actions, less than 1% for individual

But this makes sense, much more at stake in class actions and they don’t care about individuals

No change in pricing with or without arbitration clause

Numbers don’t lie!; See Crouch

Most consumers don’t even know if they’re subject to arbitration clause benevolence

Class Notes

Central issue about arbitration provision. Did the Concepcions have to go to individual arbitration (as opposed to class action)? Was this requirement in the consumer contract unconscionable and unenforceable?

Issue of unconscionability: Court finds that under CA law, arbitration provision unconscionable b/c was a contract of adhesion (no equal bargaining power b/c one side gets to dictate terms under which individual can purchase the product). No bargained for exchange.

Court can correct for that market defect.

9th Circ affirms. Case reaches SCOTUS. Considers conflict between 2 diff sources of law being relied upon by the 2 parties. Does fed statute (allowing waiver) trump state statute of unconscionability?

SCOTUS: the federal statute, under doctrine of preemption, trumps the state statute. Court’s rationale: efficiency

Court says it’s not taking sides. Just points to Supremacy Clause (preemption doctrine), Commerce Clause.

Scalia: consumer contracts shouldn’t just be seen as adhesion (as they might be in a previous world).

Under neoliberalism, in world governed by market where every contract is a contract of adhesion.

ATT case dismantles classical notion of contract.

Market thinking + fixation on private property = classical liberalism

What’s the norm baseline that ATT endorses?

Efficiency unencumbered by state policy (Konstantin)

Limiting class action against corporations in name of efficiency (Natasha)

Barriers to corporate accountability (Brenton)

Corporate autonomy enforced by contract (Noah)

A policy decision by the court to limit corporate accountability (Lias)

Preserving corporate autonomy under guides of efficiency (Julianna)

Reinforcing disproportionate bargaining power in the marketplace (Julia)

Kendall Thomas: State ordering to defend corporate dominance in market relations [as opposed to state ordering of market based on common law/classical individualist bias]

Goal of law is to recognize and protect personal sovereignty of the individual rights holder (rights as a kind of property; freedom as a function of possession).

Chemerinsky, Justice for Big Business

“We naturally expect… that legal rules in some way provide assurance that the agreement will be honored”

Tort/Efficiency Considerations

Contract law reflects judicial efforts to achieve efficiency - Kronman

Efficiency

Def: “Where resources are being used where their value is greatest, we may say that they are being employed efficiently”

Neoliberalism stresses this

However, it seems to be highly subjective and based on ideology

“Greatest value” to one (SCOTUS judge) may not be the same for another (poor, single mother)

Less subjectively, Posner, Economic Analysis of Law posits:

Efficiency is when human satisfaction is maximized

Measured by willingness to pay

Value also defined by willingness to pay

Court endorses marketization of state/society; See Munck

Not about morality, but efficient free market use

Main ex: efficient breach

Carroll Towing is a prime example of the proclivity to use measurements and numbers to define the world and how to be successful therein; See Crouch

However, Hand doesn’t even really conform to his own use of the formula

It’s more a general backdrop to rationalize something and make it appear nice and shiny before just doing a subjective analysis of what he believes would bring jutice

US v. Carroll Towing

Boat didn’t have someone on board to warn of danger

Boat starts sinking and all the flour on board is lost

Should someone have been on board to prevent the injury?

B ? PL

B – burden of taking the precaution

P – probability of harm occurring

L – extent of the harm if it does occur

B > PL – no breach

B < PL – breach

Kind of cost-benefit analysis

See Grimshaw v. Ford Motor Company

Ford knew their cars exposed consumers to risk, but took a cost-benefit analysis balancing human lives and limbs against corporate profits

Holmes, The Common Law, “The Path of the Law”

“Law of torts abounds in moral phraseology”

Discussion of malice, fraud intent, negligence (moral shortcomings)

In reality, one should be liable for his misdoings “wholly irrespective of the state of his consciousness”

Any act that is inevitable lies beyond the liability of that actor

Acts that “ordinary human care and foresight are unable to guard against” are the misfortune of the sufferer and have no legal remedy

Distinction about choice, and in choosing, taking a risk

No legal culpability without moral blameworthiness

No moral blameworthiness without (freedom of) choice

No (freedom of) choice without (reasonable) foreseeability

Shouldn’t get involved unless it’s sure to have a positive impact on the public good

“State interference is an evil, where it cannot be shown to be a good”

When should the state get involved to hold people accountable for their acts?

With reasonable foreseeability of a prudent man that the act may cause injury

[Holmes wants us to reject strict liability (that if we engage in any conduct which poses some risk of harm, you are responsible for consequences of that risky course of action). Because we actually profit from risky action (social benefits, building railroads, operating factories, etc.), and risky action cannot really be avoided, we ought to reject strict liability regardless of foreseeability. Instead, rule should be limited for torts to category of risky behavior for which we can say that someone engaging in that kind of behavior could reasonably have been expected to foresee the harmful consequences but did it anyway. If we limit behavior to this subcategory, we will have a limiting principle rooted in our moral intuition that we hold people accountable b/c of morally blameworthy behavior, behavior is blameworthy if harm were foreseeable.]

Posner, “Toward a Theory of Negligence”

Hard-on for economics

In Carrol Towing, Hand was “adumbrating…an economic meaning of negligence”

His formula created a measure of the economic benefit to be anticipated from incurring the costs necessary to prevent the accident

Economic meaning will bring about the efficient level of accidents and safety

PB: Hard to evaluate sentimentality and the like

“A rational profit-mazimizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability”

But see Grimshaw; only so much money to compensate losing an arm, but the victim would never see it being enough money to prevent the accident

What is efficiency?

“When resources are being used where their value is greatest, we may say they are being employed efficiently”

Again, this is about who defines value

Posner defines it as “willingness to pay”*

Still don’t really understand

Posner believes our moral sense is rooted in the use of resources

Immoral to inefficiently use resources

Zipursky, “Sleight of Hand”

Believes Posner believed in the Hand Formula

The problem is that Posner’s contempt for “morally tinged accounts of legal language” is so profound that he doesn’t see morality as a real option in weighing these factors

Posner himself stated that he “hate[s] the word ‘justice’” since it is “meaningless”

Posner ties himself in a knot believing solely in economic morality but knowing that in actuality, this philosophy doesn’t allow him to truly evaluate the law

Morality is important! Justice is important! We all have a sense of it!

Stiglitz, “Economics Behind Law in a Market Economy: Alternatives to the Neoliberal Orthodoxy”

“There is more to a successful economy than just efficiency.”

“Property rights and obligations are a social construction”

Legal system is put in place to advance societal objectives

Chicago School evaded the range of choices “pretending that there was only one ‘choice’”

The choice of economics and marketization of society

Coase, “The Problem of Social Cost”

Every interaction between two people is of a “reciprocal nature” and we must deal with it as such

“Should A be allowed to harm B or should B be allowed to harm A” (by not allowing A to harm B)

Critiques the common law of Holmes

Two cases that are identical to the economist will come out different ways because of factors that the economist views as irrelevant

The economist, in all problems, is focused on “how to maximize the value of production”

This is not necessary the right way to live or even how most people believe the world should be organized

That’s why economic has to be cloaked in neoliberalism; see Purdy

Economists (who may in fact be heartless) need a way to persuade people who believe in democratic values (and morality and justice) that their method is the right one

Q: Can the legal system undertake to do something more (or other) than maximize the “value of production”?

PB: I would say yes.

Civil Procedure

Rule 8(a)(2):

“A pleading that states a claim for relief must contain… a short and plain statement showing that the pleader is entitled to relief”

Originally meant to be liberally construed

Summary judgment would weed out the truly unsubstantiated claims

Rule 12(b)(6):

May dismiss a claim for “failure to state a claim upon which relief can be granted”

Brown – “[Neoliberal procedure law] accomplished at a jurisprudential level what neoliberal rationality does more generally, namely, erases an entire analytics of social power, subordination, and inequality from politics and law”

Distinctions: (*not sure where these play in to the discussion)

(1) Substance vs. Procedure

Substance can be shaped through procedure

(2) Fact vs. Law

Inherently nebulous and tricky

Kind of go hand in hand, but law is determined by facts

Gets inconsistent very quickly

Factfinding as an empirical science; See Crouch

Form of power – per Megret

(3) Private vs. Public

Not sure*

(4) Legal vs. Commodity Form

Why is a legal form inextricably intertwined with a specifically capitalist form of the exchange of products?

Legal form and commodity form have collided – per Balbus

Balbus further:

Use-value

Value of creating a commodity based on its intended use and the labor it took to create (raw, objective)

Exchange-value

Value existing because a commodity can be exchanged for another; gives two inherently different objects the same value; bases value on relationship to other commodities

Money becomes universal economic equivalent

Legal form and commodity form have same logic

Qualitatively different citizens, by entering into relationships with one another, become what they are not: equal.

This is made possible by the law (legal form’s version of money) as the universal political equivalent

Conley v. Gibson

Gave breathing room on failure to state a claim (pleading burden)

Case should not be dismissed “unless it appears beyond doubt that the P can prove no set of facts in support of his claims which would entitle him to relief”

Rule 8 only requires short and plain statement that will give D fair notice of the claim and the grounds upon which it rests

P friendly

Twiqbal

Took breathing room away on failure to state a claim

Started with just anti-trust (which is also anti-corporation) but then extended it to national security and beyond (another very hot neoliberal topic)

Gave power to judges to define what is and is not plausible, rooted in the ideologies of those judges

Twombly says claim must be more than speculative

Need “plausible grounds” (not a probability requirement)

But who is to ascertain the line between the two

Iqbal expands this to all civil actions

2 prongs:

(1) Must state factual assertions, not mere conclusory statements

(2) Conclusory statements must be “plausibly true”

Requires the court to “draw on its judicial experience and common sense”

Proving right there it will not be completely objective (based on ideology) but will still be stated as objective

Shouldn’t disagreement between judges on the same panel disprove the merit of this logic?

Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure

The FRCP should “be premised on equality of treatment of all parties and claims”

“It should abjure technical decision-making and ‘promote the ends of justice.’”

Baselines democratic tenet that the “legal rights of citizens should be enforced”

These rules opened up the courts to citizens

“Federal courts increasingly were seen as an alternative or an adjunct to centralized… governmental oversight in fields such as competition, capital markets, product safety, and discrimination”

Private lawsuits can be seen to be ex post inefficient but have done a lot of good

Increased transparency; provided compensation, deterrence, and governance; and led to leaner government involvement

Without these, it may lead to greater bureaucracy

Then, business community complained about costs

Judges took control “to manage cases through the pretrial process”

Indicative of the interest on efficiency; See Contracts, Torts

From Civic Legitimacy to Administrative Efficiency

Recognized that “procedural rules are a source of societal power”

“Manipulation of procedural rules frequently is used to advance or retard substantive goals”

Changes designed to benefit certain economic interests at the expense of citizen access to have meritorious claims heard

How have businesses done this? Ideology? Neoliberalism?

PB: Iqbal in line with AT&T in preventing citizen access to the courts in the face of important economic actors (corporations, national security, etc.)

Why is national security a neoliberal stronghold? Ideological or marketized?

Quay and Lamong, Is Neoliberalism a Threat to Civil Rights?

Neoliberalism “endorses privatization, liberalization of trade, and minimal state intervention in the market”

Has “rewarded active participation, risk taking, and innovation”

Current economic system “exacerbates competition over scarce resources, heightens uncertainty about the future, and fosters greater inequality”

Still reject views where things are not up to the individual

Creates hostility to state protection

Property/Homes

Kelo v. City of New London

“Nor shall private property be taken for public use, without just compensation

Does O’Connor use the language of home ownership as a democratic right to further the free market principles of private property ownership?

Also furthers the private, public distinction

Neoliberalism points us away from public goods in general and toward individualism and privatization; See Crouch (no public goods)

Public use can be defined as:

(1) “Owned by the public” - strictest

(2) “Used by the public” - broader

(3) “Use benefitting the public” – broadest

PB: Feels emotionally motivated, but I think that’s a misdirection

Neoliberalism: economic incentives cloaked in democratic principles; See Purdy

Stats:

80% of the public disapproved of the ruling across conventional partisan, ideological, racial, and gender divisions

“Rare issue on which Rush Limbaugh, Ralph Nader, libertarians, and the NAACP were all on the same side” – Ilya Somin

But all for different reasons

Economic desire is to maximize the value of production

Some decisions will seem odd to the economist when factors that are economically irrelevant come into play in making a decision; See Coase

How does this relate to corporate power?; See Millon

PB: How can we make sense of the differing opinions?

[Market neoliberalism (protection is about free market) corporate neoliberalism (seeks to create a freer market, one that increases value of production not as a fact but as a possibility) 🡪 (see book by James Scott: Seeing Like a State)]

[Neoliberalism as necropolitics: we see the shift in foreclosure story from personal to private; from person to credit score; from life to death (99 Homes tells us that if communities have to be killed to maximize corporate capital, so be it)]

The Left’s problem is with corporate power

The Right’s problem is with state power

But they’re intertwined! Corporate power is so immense that it now leads to state power!

Ramsin, Public Purpose: Kelo v. New London and Neoliberal Paternalism

Majority is neoliberal because it allows for a freer market

Pfizer can motivate the taking of private property because it may create jobs, but it is not bound to do so “because any such binding would not be a ‘freer’ market”

Dissent was “immensely confused”

They railed against an increase in state power “where the issue was clearly the increase of corporate domination of state power”

PB: See how neoliberalism blurs the lines across ideological perspectives

None of us are immune to it, and the fact that certain perspectives get mixed up is a sign of its contradictory nature, I think

Do we agree with Ramsin’s notion that this was a purely corporate abuse where private interests operated the machinery of the state? Would the dissent have decided the case differently if this was more apparent? It has to track along some ideological lens, no? So why would the majority/dissent be in such accordance with ideological views?

Film, 99 Homes

Working at the expense of the government

Don’t get emotional about real estate

Homes are inherently emotional

Schultz, Courts Matter: The Supreme Court, Social Change, and the Mobilization of Property Rights Interests

Movement lawyering of certain groups to get in front of the Court to “faciliatet their organization, legitimate their values and interests, and alter the political landscape by giving them increased bargaining power”

Even the loss in Kelo was enough to galvanize private property crusaders

Neoliberal effort to limit state power and promote free market

Neoliberalism connects the property rights movement that began with Raegan’s election to the Court’s decision in Kelo

Effort to:

Mobilize groups to get political power away from the state and to the market

Activist-minded courts (see Powell) represent “focal points for legal disputes” and discuss rights necessary to build a political movement for control of the state

Don’t even need to win the case if you can use it to leverage political power or institutional change

Also colonize constitutional issues of eminent domain that were historically used to prevent “renewal” or “community redevelopment”

PB: But it was good for Pfizer no? How does eminent domain fall into the free market system? What would be good for the economy?

What’s the economists view of this subject? Amoral about such an emotional issue?

If this is the framework, still have to play the game; see Gordon

Family

“Who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first.”

Reinforces ideas of individualism

Individualism is inherent in market economies and competition

Not efficient to care for other people

Yet, individuals care for their families

Why? That’s not rationally helpful for the market so what’s the rationale there?

Friedman believes in the family and “genetic inheritance”

Beck believes the market subject is “ultimately the single individual, unhindered by a relationship, marriage, or family” (anything that would make the subject act “irrationally”

Maybe that is the last semblance of morality that attaches to an economic perspective

We do this all for our families to have a better life?

[Neoliberal individual as originally envisaged is the unencumbered self not bound by ties of status or social forms that defined human possibility in premodern societies; glaring contradiction in that now it is a story of the naturalness of intergenerational transmission of wealth; ownership of capital through the accident of birth]

Not meritorious

“No country in the world where the tie of marriage is so much respected as in America.” – Alexis de Tocqueville

[Conjugal nationalism

How does the state reproduce itself through marriage? Through the political aesthetic of conjugal subjects?

Obergefell (conjugal nationalism ideology and centrality of civil marriage to american identity) vs. Windsor

(conjugal neoliberalism —> financialization & privatization)]

[To what extent is Windsor not just about allocation of authority between state and fed law, but about the impact of moral regulation on economy?

Windsor also about the power of the state govt to use marriage/family authority as mode of economic regulation (“DOMA brings financial harm to children of same sex couples”). Fed govt not authorized to override this. Efficiency arguments weigh in favor of the states.

Moral regulation and issues of economy

Windsor not really about marriage equality; rather, court is saying that at least in states where marriage equality is recognized, fed govt not authorized in name of morality/public norms to override private ordering/private regime for wealth transmission.]

US v. Windsor

[A case about federalism; allocation of state govt’s power under family law vs. fed govt’s power under tax law

conflict between state laws that allow persons of same sex to get married vs fed laws that deny persons of same sex to take advantage of tax law; this case was to harmonize this conflict.

In our constitutional system, it is the state, not fed govt, that governs marriage and family law through its police power.

Windsor does not discuss issue of right to marriage; court says we aren’t going to take substantive position on that issue; rather, the question here is whether the fed govt is under obligation to treat marriages that the states have licensed in the same way, or if they can make distinctions in tax law based on sex of persons in those marriages

Court says this conflict between state and federal law is harming people. Says the principle purpose of DOMA is to impose inequality, rather than other more legitimate reasons like “govt efficiency”; that is, inequality might be OK if it was a consequence and not a primary purpose of the law; says there is “indignity”; says this violates DPC and Equal Protection of 5th Amendment under reverse incorporation.]

Obergefell v. Hodges

[Court holds the right to same-sex marriage is a fundamental right; states nor fed govt may exclude same sex couples from civil marriage b/c of their sexual orientation

Suspect classification does not figure into its analysis

“Marriage remains a building block of our national community” – Kennedy

Court tells a story that advances arguments about individuals, personal intimacy vs. a story about politics, national identity, national civic community where marriage is understood as an institution and not just organizing intimate associations; gay marriage as an act of citizenship.

Practices of governmentality – of both self-govt and state intervention in our intimate associations; marriage as governance (the state doesn’t just marry us, but gets married to us); marriage as an ideological state apparatus]

Duggan, Homonormativity: The New Sexual Politics of Neoliberalism

The conservative gay movement represents a new “cultural front” of neoliberalism

The belief of gay marriage being allowed for the same reasons marriage is allowed plays into a further privatization and marketization of the family

Not progressive to allow gay marriage in this context

Just expands the already marketized version of the “conventional” family

Neoliberalism has a sexual politics that is internally debated and contested in the same way as its economic and trade politics

Name of the game is privatization

“Describes the transfer of wealth and decision making from public… to individual or corporate, unaccountable hands.”

Neoliberalism wants to make everything private, including many public services (education, garbage collection, prison building, cultural production, etc.)

Private freedom sounds ideal, but it is not a historical reality

The idea sounds so appealing, but it’s not real; See Purdy, Crouch

Homonormativity

“A politics that does not contest dominate heteronormative assumptions and institutions but upholds and sustains them while promising the possibility of a demobilized gay constituency and a privatized, depoliticized gay culture anchored in domesticity and consumption.”

Gays can be gay and still abide by free market principles

Incorporates gay readers into the target audience without turning off the mainstream audience as well

Does this by “a rhetorical remapping of public/private boundaries against the ‘civil rights agenda’ and ‘liberationism,’ as access to the institutions of domestic privacy, free market, and patriotism”

“Marriage is a strategy for privatizing gay politics and culture for the new neoliberal order.”

Not real freedom or equality, but only as much as it would create corporate culture managed by a minimal state

Narrowing of the goals of the gay rights movement

[Decisions by states to financialize marriage; to use marriage as personal mode for intergenerational transmission of wealth and resources; and that it is illegitimate for fed govt to override this in name of morality. Private ordering through marriage will be afforded constitutional primacy over moral regulation that would exclude some from accessing many benefits that attach to marriage]

Cooper, Family Values: Between Neoliberalism and the New Social Conservatism

Blending of neoliberalism and neoconservatism to achieve the same goals

However, they differ in their ends, as opposed to a means to an ends

Ex. Neoconservatism has heterosexual marriage as an ends

Neoliberalism has heterosexual marriage as a means in order to achieve the end of maintaining status quo and free market economies in which inheritance and social order play a major factor (women allocated to child rearing and male breadwinner endorse efficient market use)

Neoliberals, who view the world amorally and devoid of meaning other than market efficiency, marry with neoconservatives who view the world as an attempt to conserve a way of life and maintain religious freedom

How and why? What is the overlap in ideas? Neoconservatism has at its roots a market efficient perspective (e.g. women in the home)?

To neoliberalists, the crisis of the economy comes from a “crisis of reproduction”

Not the financial collapse, but naturally, gay marriage causing this problem

Private family wealth and inheritance has reemerged as a mainstay of social class determination

Why? Movement away from freedom to contract?; See Contracts

Stats:

Reduction in fertility does not occur in countries that have a “working mother” model

Proves neoliberalism isn’t the be all and that some state intervention can create positive results

Is neoliberalism just a farce then for maintenance of status quo and white supremacy?

[In this neoliberal era, relationships of any kind have to justify themselves through reproduction (children and wealth).]

Note that critique of neoliberalism does not mean wholesale repudiation of promises of liberal democracy/rights based political culture. Note that law does matter in this story.

Wendy Brown says the left ought to be defending rule of law/liberal democracy b/c it has never been more vulnerable…]

PB Note: How to be unemotionally or rationally compassionate. Not compassionate because it’s nice or empathetic, but because the definition of success that one should ascribe to is one that believes in the unity and togetherness of all people.

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