“Market State” blog September 11, 2008
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Check out this blog.
http://market-state.blogspot.com/2007/07/market-state.html
The title draws from Philip Bobbit’s scheme of the development of the state, from the Princely State, to the Kingly State, to the State-Nation, to the 20th century Nation-State, and then from the 1990s on to the Market State: ( here’s the blog’s definition):
“The “Market State” is the latest constitutional order, one that is just emerging in a struggle for primacy with the dominant constitutional order of the 20th century, the nation-state.
Here are some further quotes
Democratic State vs Market State
“Liberal democracy has traditionally meant a self-governing representative system comprised of individual citizens who enjoy freedom and equality under law and together form a people within a liberal democratic nation-state. Thus, liberal democracy means individual rights, national citizenship, and democratic representation.”
“As the traditional politics of interstate rivalries cedes place to the global market, (democratically elected*) governments lose unique attributes of their power. Armies and territory count for less.”
Bobbitt: “the democratic, representative, deliberative state is slow-moving and cumbersome just the sort of institution one wants where human rights are at stake or in a society where it is difficult to achieve consensus across many cultural communities but one that is deadly to innovation and the nimble reactions required to take advantage of changes in the marketplace.”
(So a sleek, fast moving, non-democratic, technocratic corporatocracy unconcerned with any “human rights” is apparently what is required to adapt to the global market, instead of the “cumbersome representative democracy”*)
Whereas the nation-state based its legitimacy on a promise to better the material well-being of the nation, the market-state promise to maximize the opportunity of each individual citizen (or rather that is the way hired PR firms and think-tanked propagandists sell it to the public – the real goal is of course to maximize the profits of investors, bankers and global corporations*).
Market Feudalism
“When we call a capitalist society a consumers’ democracy we mean that the power to dispose of the means of production, which belongs to the entrepreneurs and capitalists, can only be acquired by means of the consumers’ ballot, held daily in the marketplace.”
Ludwig von Mises
The influence you will have and the amount of “democracy” available to you in a “consumer democracy” is totally dependent on how much capital you have at your disposal and the amount of goods you consume. The means of production is relocated, many times to dictatorships, and owned by foreign oligarchs, far beyond any real democratic control.
Progressive Law and Economics book June 8, 2008
Posted by Martha McCluskey in Readings of interest.Tags: Add new tag
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A fabulous collection of essays from a time when what now appears as “law and economics” or neoliberalism was beginning to take over: The Chicago School of Political Economy, edited by Warren J. Samuels (Transaction Publishers, originally 1976 but reprinted with some new material in 1993). From Warren Samuels’ conclusion: “…the real world is an arena *not* fundamentally of intervention versus nonintervention (although such *is* the semantics of policy) but of working out alternative uses of government. The Chicago School doctrine reflects, takes advantage of, and reinforces the long-standing practice of identifying business system use of government as nonintervention or “minimal” government, and all other uses as intervention.”
Conference on Class and Critical Legal Studies May 28, 2008
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See http://www.criticallegalconference.com/ for details. The conference title is Critical Legal Strategies: A return to the political nature of critical legal intervention, and it takes place Sept 5-7 at the Univ. of Glasgow. The Call for Papers seeks abstracts on “the class problematic in legal studies” as well as “critical legal subjectivity” ; “labour and the law” and “the choice agenda: patient or consumer.”
Though class and critical theory are not often on the radar of US legal scholarship, this may be evidence of much more activity elsewhere.
New Journal at Indiana November 26, 2007
Posted by Jim Milles in Uncategorized.1 comment so far
Meet The Crit:
the crit is a multimedia journal joining audio, video, text and narrative. We welcome submissions from contributors of all backgrounds and interests. the crit welcomes submissions in varied formats, including but not limited to law review articles, narratives, textual commentaries, cartoons, short stories, photo collages, video documentaries and video commentaries. For more information, please visit our Submissions page.
Join us in a multi-disciplinary discussion on law and its social, economic, and political effects. This journal seeks to encourage interest in, and accessibility to, a discourse on underrepresented experiences. Ultimately, we hope to cultivate a critical discussion among those with different, opposing and potentially irreconcilable ideologies and understandings.
Aesthetics, law, and economic power October 31, 2007
Posted by Martha McCluskey in Readings of interest.Tags: aesthetics, commercial law, economic theory, neoliberal
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Heather Hughes, of American University Washington College of Law http://www.wcl.american.edu/faculty/hhughes/ has been doing pathbreaking work on a critical class analysis of commercial law. Her recent article, Aesthetics of Commercial Law: Domestic and International Implications, 67 La. L. Rev. 689 (2007), brilliantly shifts the framework for analyzing economics in law — a shift with exciting implications well beyond commercial law. She shows how the conventional (neoclassical or neoliberal) economic wisdom in law relies on aesthetics, not on rationality or empirical support, for much of its persuasiveness. These aesthetic conventions often work to create a debate-stopping “common sense” that legitimates policies promoting economic inequality, poverty, and environmental devastation.
For example, what she describes as an “energy aesthetic” (drawing on Pierre Schlag’s Aesthetics of American Law) helps to construct the U.C.C. (Uniform Commercial Code) as “a force of nature with a momentum and trajectory that precedes legal control ” that inevitably brings growth and progress. This “energy” aesthetic portrays efforts to restrict commercial activity as unthinkable, backward-looking and harmful, and buttresses opposition to reforms designed to address the social and environmental costs of commercial transations. This metaphor helps promote acceptance of changes in the UCC that benefit interests of the wealthiest secured creditors at the expense of others (such as workers) by making the changes seem to be natural, modernizing reactions to the ever-evolving needs of business, rather than policy choices between competing class interests. Similarly, it helps construct commercial rule changes as mere technical adaptations to “practical” life of business, that must be kept free of the heavy hand of formal law — thereby contributing to the assumption that privileged commercial actors get their power from benevolent nature prior to law.
For another example, the “grid aesthetic” (again drawing on Schlag) helps block consideration of the labor and environmental impact of commercial law. The grid aesthetic puts legal rules into bounded categories on pre-reflective grounds of common sense beauty. This aesthetic helps bar from consideration regulation aimed at taking into account the impact of commercial law rules on workers or the environment. Hughes writes: “Imagine a provision making unenforceable security interests granted in exchange for loans that the debtor services with capital generated by violating certain labor or environmental standards.” Debate about this kind of reform, she argues, is off the table because a grid aesthetic that sharply divides the “commercial law” box from the labor and environmental box without considering the moral and economic implications.
By enabling us to see these common sense background assumptions, Hughes opens up possibilities for using commercial law for progressive ends. In addition, Hughes’ work upends the privileged position of conventional economic arguments and neoliberal policies as supremely “rational” in contrast to the “identity-based”, cultural or sentimental concerns of those who would restrict powerful commercial actors out of considerations of equity.
The Conservative Nanny State October 22, 2007
Posted by Martha McCluskey in Readings of interest.Tags: free trade, nafta, neoliberalism, protectionism
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Check out this book by Dean Baker, economist at Center for Economic & Policy Research, www.cepr.net, published by Creative Commons (2006). Baker argues that progressives should reject the “government vs market” frame, which is strategic and ideological move rather than an accurate description of current right-wing economic policies.
[I also make this argument frequently in my writing, see e.g., Deconstructing the State/Market Divide: The Rhetoric of Regulation from Workers' Compensation to the WTO (book chapter), in Feminism Confronts Homo Economicus: Gender, Economics and the Law (Martha A. Fineman & Terence Dougherty, eds.) (Cornell Univ. Press 2005)].
For example, Baker criticizes academics, the media and liberals and progressives for accepting the clever conservative framing of trade policy issues as free trade versus protectionism. Baker observes that calling opponents of free trade “protectiionists” is “like having the New York Times refer to the opponents of the MX missle as “warmongers”" simply because the Reagan administration named the missle the “Peacekeeper.” As Baker explains, one of the main purposes of NAFTA, CAFTA and other recent trade agreements is to increase patent protection (”increasing the length and force of government monopolies.”) “Whether or not incresasing patent protection is desireable policy, it is clearly not ‘free trade.’” (Baker, introduction p. 1-3).
Conference on Wealth Inequality October 10, 2007
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ACS Logo
The American Constitution Society for Law and Policy and the University of North Carolina Center on Poverty, Work, and Opportunity will sponsor a two-day conference entitled:
Wealth Inequality and the Eroding Middle Class
What do we know about rising domestic and global wealth inequality patterns? In an increasingly globalized marketplace, how do income and wealth inequality in one nation affect conditions in other nations? How does the law construct wealth patterns and how can certain areas of the law, such as labor and immigration, function as tools for alleviating entrenched wealth inequality?
These issues and others will be addressed November 4-5, 2007, when the American Constitution Society for Law and Policy (ACS) and the University of North Carolina (UNC) Center on Poverty, Work, and Opportunity will sponsor a two-day conference entitled “Wealth Inequality and the Eroding Middle Class.” The event will be held at the George Watts Alumni Center at UNC in Chapel Hill, North Carolina. The conference will be an interdisciplinary exploration of issues such as wage stagnation, growing income stratification, the fragility of the middle class, and ways to keep individuals out of poverty. By bringing together scholars and other experts from a variety of backgrounds and perspectives, and by framing the issue as both national and global in character, the conference aims to stimulate new conversations, deepen understanding of the consequences of wealth inequality, and propose fresh solutions.
The conference’s keynote speaker will be Robert Kuttner, the founding co-editor of The American Prospect, co-founder of the Economic Policy Institute, and currently a Senior Distinguished Fellow at Demos. His latest book, The Squandering of America: How the Failure of Our Politics Undermines Our Prosperity, will be published in November 2007. He is the author of six previous books including Everything for Sale: The Virtues and Limits of Markets (1997) (winner of the 1997 Sidney Hillman Award) and The End of Laissez-Faire (1991). Among many other positions, he has contributed to numerous journals and magazines, served as economics editor of The New Republic and was chief investigator for the Senate Committee on Banking, Housing, and Urban Affairs.
For more information and to register please click here <http://rs6.net/tn.jsp?t=zxtd6ecab.0.dz7v4ecab.dkevvvn6.21417&ts=S0288&p=http%3A%2F%2Fwww.law.unc.edu%2Fcenters%2Fpoverty%2Fconferences%2Fdefault.aspx> .
Naomi Klein’s book on Disaster Capitalism August 16, 2007
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Naomi Klein (see previous post) also discussed her new book “The Shock Doctrine: The Rise of Disaster Capitalism.” More information at NaomiKlein.org. She argues that rather than simple privatization and small government, the new approach to upward redistribution is what she terms “hollow government” in which the post-911 US government operates through contracts with private profiteers to promote the anti-egalitarian security state. Anyone read this book and have comments?
The problem is not a lack of big ideas or big money August 16, 2007
Posted by Martha McCluskey in In the news.add a comment
Food for thought from the news:
Canadian journalist Naomi Klein, speaking at the American Sociological Association annual meeting recently, says the problem for creating progressive economic alternatives is not that we lack big ideas — viable universal health insurance is not a new or unkown concept, nor is the idea of basic human rights, democratic control over economic institutions. Nor is the problem one of economic scarcity — as Goldman Sachs hands out billions in holiday bonuses to top employees. Instead she says the problem is confidence and passion among — will nonconservatives care as much about climate change as Dick Cheney cares about getting Khazakstan’s oil? Further, she argues that progressives have fallen prey to the idea that alternative economic policies have been tried and failed, so that without new ideas, due to scarcity the current unjust system is inevitable. Instead, alternative and more democratic economic ideas have been thwarted by oppressive power — shock therapy in Poland, CIA-assisted military coup in Chile, tanks in Tiannamen square. Her talk was broadcast on Democracy Now, August 15, 2007, see http://www.democracynow.org/article.pl?sid=07/08/15/1432250. Ironically, at this ASA meeting, focusing on the theme of Another World is Possible, the US state department denied a visa for a South African social scientist Adam Habib to discuss examples of alternatives to neoliberal economic policies.
Naomi Klein: From Think Tanks to Battle Tanks, “The Quest to Impose a Single World Market Has Casualties Now in the Millions”
Though I agree with Klein that both the ideas of good alternatives and money are there, I’m a bit concerned about the tendency to focus on castigate nonconservatives for their lack of moral courage and conviction, rather than to focus on the material constraints and lack of political power that impedes implementing the many good, successful ideas out there. See my review of Wendy Brown and Janet Halley’s anthology, Left Legalism/Left Critique, where I argue that the recent postmodern strand of left critique in law wrongly and uncritically portrays the failure of critical legal scholarship and practice on moral inadequacies without analyzing the political economy of theory — for instance, the fact of upwards of $50 million of “investment” in the production of right wing legal theory in law schools in the late 20th century. See McCluskey, Thinking with Wolves: Left Legal Theory After the Right’s Rise, 54 Buffalo Law Review 1191 (2007).
So, I think we do need new and good ideas, not because we lack an alternative vision, but because we need more ideas about how to overcome the political and economic barriers to achieving that vision.
A Critical Perspective on Economic Inequality August 10, 2007
Posted by Martha McCluskey in Uncategorized, What is ClassCrits?.add a comment
A Critical Perspective on Economic Inequality
Here are some of my initial thoughts on what distinguishes a critical view of economic inequality — a view that the idea of class may help illuminate but which also may be described by a more robust vision of equality.
The problem of economic inequality involves a) conflict b) comprehensive inequities c) power and privilege, not just natural costs d) collective action and institutions e) coercion. f) change and context . My list here is drawn in part from a book aimed at alternative perspectives for teaching economics, put out by the Economic Affairs Bureau of Dollars & Sense Magazine: Randy Albelda, Robert W. Drago, Steven Shulman, Unlevel Playing Fields: Understanding Wage Inequality and Discrimination (2nd Ed. 2004), Chapter 6 The Basics of Political Economy. That Chapter identifies “The Four C’s of Political Economy” [the term the authors use to distinguish a progressive, critical economic vision from neoclassical orthodoxy]. Their Four C’s are Context, Collective Behavior, Conflicting Interests and Change. The term “Political Economy” is helpful because it identifies Economics as fundamentally political; recognizing that the fundmantal distinguishing flaw of neoclassical economics is that it identifies Economics as essentially or ideally separate from politics. However, this term is not as useful for current US legal scholarship, where the dominant use of “political economy” is to describe a right-wing approach to political theory that uses neoclassical economics to analyze government decisionmaking.
a) conflict
Dominant frameworks (liberal, neoliberal, conservative) present economic issues as problems of implementing or balancing widely-shared principles for determining public interests: growth, redistribution, aggregate welfare, fairness, opportunity, etc. OR these frameworks present economic issues as problems of technical dilemmas about how to achieve one or more unproblematic principles of public interest (calculating costs versus benefits; overcoming market failures).
In contrast, critical economic analysis (”political economy” or “class”) suggests economic problems involve not just conflicts between principles for promoting public values, but conflicts of interest, ideology, and identity. For instance, “free trade” is not just about “growth,” or “markets” but about gain for capital owners; support for free trade among academics involves presumptively not just scientific calculation but cultural and class pressure (see Jeff Faux, The Global Class War); and economics is always a political project, involving contested values and ideas, not just a technical inquiry or about transcendent principles.
b) comprehensive inequities
The problem of economic inequality is not just a problem of an impoverished group of “losers” left out of the mainstream, but of flaws in the mainstream itself. It is not just a problem of “undeveloped” nations, but of development; in the U.S. as well as beyond. The problems of poverty and insecurity limit most even in the middle class. The flaws even jeopardize many at the top, at least in the long run (e.g., severe inequality may hurt some of the rich because it leads to high crime, war, or to worse health outcomes overall; starvation of public infrastructure, crime and destruction of environment may initially be overcome by private wealth and power, but eventually will be extremely costly even for the rich and powerful).
c) power and privilege
The problem of economic inequality is not just that some lose, but that some win unjustly — and that “winning” is often more elusive, complex, costly or unstable than it may first appear. Law, politics, and governments intervene not just at the margins to “redistribute” to the “losers”, but are essential to producing the gains of the “winners.” Success comes not just from rational choice, random luck or careful calculation, but from selective public support and penalty. Addressing economic problems requires focusing on the winners’ privileges, not just on the suffering or failings of the losers.
d) collective action and institutions
The economy is not an aggregate of individual transactions in a “free market” — not even as an ideal — but instead is comprised of complex collective organizations and institutionalized constraints, production, and protection. The current US economy, for example, is dominated by corporations, which are collectives enabling cooperative, concerted action by capital owners, produced and maintained by complex legal and government “intervention.” Indeed, every aspect of exchange in a market, real or ideal, is regulated and produced by institutionalized policies resulting from contestable political negotiations that might logically be structured differently: consider the details of contract law, property law, criminal law, tax law (for instance). So-called “market” approaches that emphasize individual risk, competition, and choice always inevitably involve comprehensive cooperation, constraint and collective decisionmaking as well.
e) coercion not choice
Finally, economics — “free” markets — are always embedded in and inextricable from a system of violence, however much individuals may appear to be making “free” choices. Property has its origins in force, and is backed up by selective control of force. The force that determines and maintains existing property arrangements is by no means the product of principled, unproblematic consensus, widely shared values or individual merit. The extent to which violence permeates current economies deserves far more attention: in addition to the history of colonization, slavery, and oppressive governments in shaping current economic distribution, consider the contempary role of the military in international trade and multi-national corporate profit-making; the impact of family violence; harassment and bodily injury in the workplace; the role of a fundamentally unfair criminal justice system in the US.
f) Context and change
Economic inequality must be analyzed not as a matter of formal, abstract calculations or concepts, but as a particular product of history — situated in time, place, and perspective.
It is dynamic — subject to change, tied to changing historical contexts. Empirical data matters: so-called “free trade” policies should be evaluated based not just on economic theory, but on close studies of what actually is happening on the ground in particular nations. But empirical data itself must be treated as contextual, contingent and subject to change: mathematical, formal studies of macro”costs” or micro-level studies for formal individual decisionmaking are of little value unless situated in historical contexts.
Power is not just an exogenous mysterious given, but a changeable, dynamic, product of institutions, policies, contexts as subject to analysis as “economics” — indeed, inextricable from what is treated as “economics.”
