We invite panel proposals and paper presentations that speak to this year’s theme as well as to general ClassCrits themes.  See below for details.

 In addition, we extend a special invitation to junior scholars to submit proposals for works in progress. Each work in progress will be commented upon by a senior scholar as well as other scholars in a small, supportive working session.

Things seemed well organized also. A bus showed up from Berkeley and several hundred people joined the crowd, greeted with loud cheers. Food lines were orderly and there were clothes distribution boxes and plenty of porta-potties. Very little police presence except for the ubiquitous helicopters.

Nice to see a revolution that includes yoga and gardening.

Great posters, and folks on stilts, too.

This afternoon the plan is to occupy the Port of Oakland.

Another contingent of students set off to occupy the University of California Office of the President, which has its offices in downtown Oakland (rumor has it, ironically, that UCOP moved to Oakland to avoid Berkeley protests).

This is still my favorite:

Americans like to think they live in a society unstratified by class, a society of equal opportunity, where the American dream survives. Joe Bageant, a journalist turned cultural critic, challenged these myths with inimitable intensity, compassion, and wit.

Along the way, he reminded us of the links between the nation’s white working class and rural America. Bageant died earlier this year at the age of 64.

I first heard the name Joe Bageant in, of all places, Waarnambool, Australia. It was November, 2010, and I was there to give a lecture at the Rural and Regional Law and Justice Conference. After my talk, “Toward a Critical Legal Ruralism,” an Australian law professor approached me and recommended the book Deer Hunting with Jesus:  Dispatches from America’s Class Wars by Joe Bageant. I promptly purchased it. Who could resist such a provocative title?

I found that what the academic literature teaches about class wars, Bageant expressed in sharper, colloquial terms, and I discussed Bageant in my essay, The Geography of the Class Culture Wars.

The scholarly literature tells us that progressive elites look down on the white working class and fail to see their struggles, including the struggle within the white working class by which the “settled,” disciplined working class differentiate themselves from the “hard living.”  Bageant—consistent with his rural roots—expressed this distinction between the settled and the hard living as that between rednecks and white trash, explaining:

Life is about work for the American redneck. … [T]he work ethic is burned into their genetic code. (Incidentally, I am not talking about white trash here. I am talking about rednecks, the difference being that rednecks work themselves to death and will never accept a handout. White trash folks do not have the same hang-up). In the redneck mind, lazy is the worst thing a person can be—worse than dumb, drunk or mean, worse than being a liar and a jailbird or crazy. The absolute worst thing that a redneck can say about anyone is: “He doesn’t want to work.”

Similarly evincing his awareness of the sometimes subtle social hierarchies we create, Bageant wrote, “human nature being what it is, we are all kicking someone else’s dog around.” It’s not a far cry from Pierre Bourdieu: “Social identity lies in difference, and difference is asserted against what is closest, which represents the greatest threat.”

Bageant wrote with such intensity, his observations so spot on, I wasn’t sure whether to laugh or cry. I did both.

While I have seen little media attention to Bageant’s work in the U.S. and rarely encounter anyone familiar with it, I am convinced Bageant had one very high-powered reader. I saw in Deer Hunting with Jesus a remarkable similarity between its explanation of white working class politics and how President Obama explained his way out of “Bittergate.”

Recall that “Bittergate” was the name given to Obama’s “biggest unforced error” of the 2008 campaign, his comment that small-town voters are naturally “bitter” because of economic decline, which the Clinton and Bush administrations failed to stem, leaving those voters to “cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”
Obama later explained:

[T]hese voters have a right to be frustrated because they’ve been ignored. And because Democrats haven’t met them halfway on cultural issues, we’ve not been able to communicate to them effectively an economic agenda that would help broaden our coalition…

I mean, part of what I was trying to say … was, ‘You guys need to stop thinking that issues like religion or guns are somehow wrong.’ … Because, in fact, if you’ve grown up and your dad went out and took you hunting, and that is part of your self-identity and provides you a sense of continuity and stability that is unavailable in your economic life, then that’s going to be pretty important, and rightfully so. And if you’re watching your community lose population and collapse but your church is still strong and the life of the community is centered around that, well then, you know, we’d better be paying attention to that…

To act like hunting, like somebody who wants firearms just doesn’t get it—that kind of condescension has to be purged from our vocabulary.

Right down to the examples of hunting and guns, Obama’s words—though delivered in his low-emotion, high-brow fashion—summed up Bageant’s core points about sources of identity for the white working class and why change comes so hard for them. I could only conclude that Obama or a staffer had read Deer Hunting with Jesus, which was published a year before Bittergate.

But my response to Bageant’s work was not only that of an objective academic. Like Bageant, I am a class migrant (or maybe Bageant would call us class paratroopers), one who grew up working class but whose access to education landed me in the professional/managerial class. Those to whom Bageant repeatedly refers as “my people”—that is, his people—are my people, too. Bageant wrote both of my lives—just as he wrote both of his—the working class from whence we came and the liberal elite among whom we now hang, albeit a bit on the fringe.

Much of the content of Bageant’s book is similar to Thomas Frank’s What’s the Matter with Kansas, but with a critical difference—sensitivity and compassion on Bageant’s part. Bageant did not ridicule or, when he did, he did so as a loving big brother, coaxing his people to recognize their foibles. Consistent with the principle, “I can criticize my mother, but you can’t,” Bageant’s descriptions of the white working class were far more palatable than Frank’s derision of them.

Bageant unflinchingly revealed the American dream for what it has become—a sham, an ideal now accessible to relatively few: “If your high-school dropout daddy busted his ass for small bucks and never read a book and your mama was a waitress, chances are you are not going to grow up to be president of the United States, regardless of what your teacher told you.”

Indeed, one of Bageant’s most powerful insights regards the “intellectual bareness and brutality” associated with the working class and poverty. In his plea for universal access to a decent education, he keenly observes that “[n]ever experiencing the life of the mind scars entire families for generations.” He was correct that what holds back the working class is a powerful combination of the material and the cultural, including bias against them. “[J]ust like black and Latino ghetto dwellers,” Bageant wrote, “poor and laboring whites live within a dead-end social construction that all but guarantees failure.” At no time in recent history is that more true, surely, than this decade of declining mobility.

I re-read Deer Hunting with Jesus in January, wanting to be sure I had not missed a single nugget. I was moved all over again. I wanted to contact Bageant, to be one more reader to say, “I understand. I get it. They’re my people, too.” But his website announced he had been diagnosed with cancer and would be out of communication. A few months later, Bageant died.

This summer, I read Bageant’s second book, his memoir Rainbow Pie. Rainbow Pie is an amalgam of personal reminiscences and Bageant’s biting social commentary. He introduces us to his entire extended family and draws on anecdotes of their lives by way of opining (as in Deer Hunting) why the white working class tend to do what they do, believe what they believe — why working class folks tend to distrust the better educated; why rural folks tend to distrust urbanites.

Rainbow Pie explains the link between rural and urban in relation to these enigmatic white workers. The key reason is rural-to-urban migration that took so many rural whites to cities in the post-WWII years. Deer Hunting conveyed a sense that Bageant was writing about rural people, even though most of the book was focused on Winchester, Virginia, which is part of a metropolitan region. Like Bageant’s parents, many working class rural folks moved to places like Winchester for economic reasons — because the limited economies in their rural home counties could not support them.

Yet, like migrants everywhere, old habits, customs and beliefs have died hard. These rural-to-urban transplants, Bageant suggests, remain culturally rural—which partly explains their outlooks and their politics. It also explains why “rural,” “small town” and “working class white” so often get collapsed in the national consciousness and in political rhetoric.

Some liberal elite colleagues will shudder that I have written a tribute to Joe Bageant. They will shudder because he was a good ol‘ boy, because he was brash and uncouth, because he was not a scholar. But they will also shudder for the very reasons Bageant was compelled to speak: we don’t want to acknowledge the harsh, tragic reality of the white working class because, like the persistence of racism, it shames us as a nation.

Better–progressive elites seem to think–to avert our gaze from this gauche embarrassment, to let them bear the blame for their circumstances. As I look at the cover of Rainbow Pie, featuring a Dorothea Lange photo of a poor white family, I wonder when Americans became so disdainful and resentful of our poor, when our compassion for them evaporated.

Joe Bageant courageously spoke many truths; sadly, few people in power have yet to hear him.

Cross-posted to Legal Ruralism, SALTLaw, and The Daily Yonder.

Thanks also to our hosts: not only the law school at American, which was a fantastic venue, but also my new home school, the University of California at Davis, whose dean Kevin Johnson enthusiastically contributed funds to the conference in order to subsidize meals and make travel to the conference possible for some of the participants, and the University at Buffalo Law School and the UB Baldy Center on Law and Policy, where class-crits was born and nurtured in its infancy, and which continues to support the class-crits endeavor. These institutions made the conference possible.

Deepest thanks, of course, go to the attendees. We had participants just beginning their academic careers as well as senior scholars; experts in immigration law, poverty law, family law, criminal justice, financial institutions, and corporations, just to name a few; and panel after knockout panel that produced thoughtful, passionate interchange. It was clear to me after attending this conference that the phrase “the criminalization of poverty” is not just a rhetorical flourish; the panelists and the discussants were able to document just along how many different dimensions poor people are being subjected to ever harsher state control along with economic marginalization and exploitation. And, as several participants pointed out, new technologies of control and coercion have a tendency to spread. Criminologists call it “net-widening.” The result is that regimes and practices of governance that we imagine will only be applied to “them” are in short order going to be used on “us.”

Because ClassCrits is a relatively small and new legal community, a few people asked me to reproduce here the opening comments I made at the conference. Slightly edited, here they are:

We’ve been calling ourselves class-crits as a way of underscoring our affinity with those movements, and there are several points of similarity. First and most obviously is the “crit” part: an interest in taking apart and examining the assumptions that underlie traditional legal and policy discourse. Martha McCluskey’s work, if you haven’t read it, is a beautiful example. Quintessentially critical, her work shows how the economic status quo is conceived to be natural, normal, and necessary, and how markets are imagined to be “free” despite the obvious role of the state in creating and maintaining them.

A second point of similarity is that like critical race theorists, the folks who have been participating in class-crits gatherings take the position that inequality and subordination are central rather than peripheral to US society.  Unlike positive law and economics, we seek not only to describe economic relations, but also intervene in them; we have a normative agenda. (Some, of course, would say that conventional law and economics has a normative agenda also: to promote laissez-faire economic policymaking and upward redistribution!)

Third, like LatCrit (Latino Critical Theory), we who have been working under the name of “class-crits” share a commitment to “anti-essentialism” along with anti-subordination. In the context of class analysis, this means rejecting the old school Marxist view that economic relations are the foundation of social relations and cultural relations are only the superstructure. It also has meant a continuing interest in how racism and sexism operate through market institutions and practices, and vice versa: how economic relations operate through race and sex.

A fourth similarity between class-crits and our sister “crit” movements is a concern with law and legal institutions as central to maintaining the unjust status quo, but also as one site for resisting injustice. Rights may be meaningless without enforcement (and a focus on establishing legal rights can suck the energy out of grassroots movement), but rights are also an indispensable “hook” for organizing and for institutional action.

There are also, however, some points of difference between class-crits and other “crit” movements.

The most obvious one is that subordination along class lines works differently than subordination along lines of gender, sexuality, and race. The founding question for critical race theory, for instance, was “how is it that racial hierarchy is maintained in a society that rejects the notion of racial hierarchy?” There is no direct parallel of this founding paradox for class relations. Capitalism is not a disavowed ideology; it is a central pillar of social organization in the U.S. and the West more generally. Instead, a founding question for class-crits might be, “How is an institution that generates, requires, and even values economic inequality reconciled with ideologies of political equality?”

A related point of difference comes from political theorist Nancy Fraser’s old distinction between recognition and redistribution: Class-crits is not organized around the goal of social and political group “recognition” for poor people, although such a movement might intersect with class-crit interests. In this way, class-crits differs from feminist legal theory, critical race theory, and queer theory, all of which are founded in the struggles of women, people of color, and sexual minorities for full social citizenship. Class-crits is not a poor people’s movement, or a movement that seeks to give the beleaguered working classes or the stressed-out middle classes a political voice (laudable as those aims might be). Class-crits is interested in understanding and if necessary altering or abolishing capitalist institutions and practices as we know them in the service of a better life for all.

There is no consensus among us about how best to promote human flourishing and reach the goal of a decent life for everyone. Some of us are reconstructed Marxists, others more democratic socialists; we might even have some anarchists among us, and some capitalists who believe in regulation and balancing market power with state power. What I think we can all agree on despite our different political positions is the need to interrogate market practices and institutions – to understand them as social constructions, not natural processes like the weather; to understand their role in maintaining illegitimate hierarchies and inequalities; and to understand the systematic relations among the market, the state, and civil society including the family, the three major governance institutions of mass society in the contemporary West.

This is an urgent task given (1) the current global economic crisis and the connected crises, or malaise, or coming new recession, within the United States; (2) the collision course we are on between capitalism as we know it and environmental collapse; and (3)  our crisis of governance within the United States (and apparently world-wide) – in which entrenched economic interests have captured the political process, producing increased frustration and immiseration on the part of the people while elected governments seem less and less responsive to their needs.

A final thought: the class-crits project, thus stated, is clearly more than a legal project (and is too important to be left to lawyers, anyway!). Central to class-crits as an organizing initiative, then, is the need to reach out to other people who share our agenda. Past class-crits workshops have embraced heterodox economists; at the final feedback session of the conference, attendees suggested that we build connections with political economists here and outside the U.S. and with sociologists. We look forward to creating those networks and hope you will help us do so! As I said in that last session, there is no class-crits governance structure or bureaucracy. Class-crits is us!

I just now learned of the death last month of Warren J. Samuels, who in in my book was the best law and economics scholar of the last half century or so, and certainly one of the most prolific, knowledgeable and wide-ranging (see link to his cv).  How shameful that his foundational work has been virtually ignored in the mainstream Law and Economics movement, even in its purportedly more progressive and heterodox corners.

A few of Samuels’ legal classics: Maximization of Wealth as Justice:  An Essay on Posnerian Law and Economics as Policy Analysis (book review) 60 Texas Law Review 147 (1981); and The Legal-Economic Nexis, 57 George Washington Law Review, 1556 (1988-89).   And I look forward to reading his just published Erasing the Invisible Hand: Essays on an Elusive and Misused Concept in Economics (Cambridge, 2011).

Samuels’ work should be required reading in every law and economics course and by every legal scholar interested in economics.   What a different world we might live in if Samuels, rather than Henry Manne and other right-wing-funded promoters of the “free market,” had had the power and funding to educate the last few generations of legal scholars, judges, attorneys, and politicians in economic policy. Samuels was active in the 1970s critical legal studies movement, a leader in developing the field of history of economics, an expert on public utility law, and a generous mentor to several generations of heterodox economists.   Let’s belatedly give Samuels the prominence in law he deserves.

I wrote a post last month about data recently released by the Chronicle of Higher Education regarding education levels of state legislators.  That post considered whether the data shed any light on recent funding cuts to higher education.  The short answer:  Not really, though one thing is clear.  Being a graduate of a public university (or  having attended one) does not guarantee great support for public institutions of higher education.  This post will discuss the public-private divide in how and where state legislators were educated and speculate o the divide’s consequences.

While about 75% of state legislators have college degrees, the majority of those—nearly 80%–have attended public universities.  (Many of those also attended private universities, though data on the institutions where the legislators earned their degrees is not detailed).  One of the Chronicle stories about the data summarizes:

“Like most American students, the vast majority of state legislators went to public colleges.  And most of them stayed close to home.  In Louisiana, four out of five legislators never went to college outside the state.”

As the quote above suggests, the percentage of state legislators who attended private colleges varies significantly from state to state.  As a general rule, legislators in the northeast were more likely to attend private colleges than were legislators in other regions.  Here are the findings by state, which show that Massachusetts and Rhode Island have the lowest percentage of state lawmakers who attended a public university or college, while Mississippi, Alabama, and North Dakota  have the highest percentages of those who attended a public university or college*:      

Of course, it is difficult to say exactly what consequences—in terms of political ideology or otherwise—flow from having attended a public university.  (More telling might be whether a legislator holds a degree from a public university—not only that s/he attended one.)  I suspect the consequences of attending a public institution vary from state to state, depending on state norms and what private universities are present in a state or region, as well as the relative prestige of public and private institutions in a given state.  Consider, for example, the dominating presence of Brigham Young University in Utah or the presence of very elite but nominally public state universities in Michigan and Virginia.

A state university experience may be consistent with practicality and make a legislator less likely to be an ideologue.  Products of public higher education might experience (and exhibit) less a sense of superiority toward their less educated counterparts, as well as toward their less educated constituents.  (Speaking of sense of superiority—which is often associated with eliteness—the Chronicle anecdotally notes the much greater presence of Yale graduates in the U.S. Congress than in state houses:  1 in 30 members of the U.S. House and Senate, compared to 1 in 189 among state lawmakers).

I wonder, too, what effect the commonality of time spent at a state’s flagship university has on collegiality among state lawmakers.  If many legislators in a given state house are rooting for the same college sports team, does that fuel an ol’ boy (and girl) network that excludes some?  If so, is that always a bad thing, or might it sometimes be a good thing?  That is, might it foster community and collaboration—and keep extreme partisanship at bay?  In this regard, we might consider Minnesota and Wisconsin, with 52% and 72% public university-educated lawmakers, respectively.  While they are near opposite ends of the spectrum in terms of percentage who attended public universities or colleges, both states have recently been in the grip of political deadlock.

In addition, a legislator who attended (and perhaps graduated from) a state school may be more likely than one who attended (and perhaps graduated from) a private school to be a class migrant—that is, to represent the first generation in his/her family to get a college degree.  For cohorts who graduated from high school in the 1970s and 1980s, first-generation college students were significantly more likely to attend a public university than a private one.  Data about more recent cohorts of college-aged students indicates that the gap between public and private tertiary institutions is closing among first-generation students, coming more into line with the public-private spread for college students whose parents attended (and/or graduated from) college.  The closure of the gap is particularly evident among first-generation students attending four-year institutions, although first-generation students are still far more likely to attend 2-year colleges.

Assuming for a moment that the higher percentage of legislators with public institution degrees is an indicator of the presence of class migrants, I would expect that to be a good thing. Class migrants may be less likely to take the American dream for granted.  That is, they may realize that they have achieved a college education and thereby transcended class boundaries because of easier and less expensive access to public education.  On the other hand, a higher percentage of class migrants could make for more conservative leanings if the class migrants take undue personal credit for their migration and fail to see how public institutions and structures—including higher education subsidized by public coffers—have facilitated it.

Another thing striking about where state legislators were educated is that—at least outside the northeast—the vast majority were educated within the states where they serve.  This is a particularly marked trend in the South.  Such a lack of geographic mobility suggests provincialism, which seems to me a great pity because it may inhibit state legislators from thinking outside the box—beyond “the way we’ve always done it”—about challenges.  This is a topic I shall return to in my next post in this series, which will compare the education credentials of state lawmakers in states popularly thought of as rural with those from more urbanized states.

*The percentages shown in this table were calculated by adding, for each state, the number of legislators who attended a public institution with the number who attended a private institution and with “other” (which the Chronicle does not define), and turning each of those categories into a percentage of the total for that state.  Showing these as a percentage is somewhat misleading because many lawmakers attended both public and private institutions and are therefore shown in both percentages.  These percentages also are not perfectly consistent with those in the Chronicle’s charts, which do not compare public to private.  The Chronicle’s percentages were presumably calculated by dividing the total number of legislators who attended a public institution by the total number who attended any tertiary education institution in the given state.

Sometimes law needs more music.  Legal theory’s familiar critique of rights sounded flat against the spirited voices of young people gathered to memorialize one of the group who died too young in a Massachusetts city struggling with underfunded schools, poverty, racism, violence, and the aftermath of a recent tornado.  A few days before, at a Buffalo public hearing on a utility energy efficiency program, I heard an activist with a low-income group break into heartfelt song to demand increased weatherization funding for low-income customers who cannot afford heat, from a gas company paying its CEO $3,550 an hour. The presiding Administrative Law Judge noted that this may have been the first musical testimony presented as part of a New York public service commission regulatory proceeding.

Even without the music, idealistic visions of equal rights often are treated as sentimental and unsophisticated in contemporary legal theory.  The standard critique from left and right is that, no, you don’t have any meaningful rights unless you have power already.  You need not only a right but a plenty of economic, cultural, legal, and political capital to implement, enforce and interpret that right and to regulate the backlash from opposing interests.  Even worse, your effort to assert a “right” is likely to be treated as an undeserved, unaffordable pejorative “entitlement” that proves your interests deserve exclusion and punishment more than protection.  Following this reasoning, we must carefully, coldly calculate the costly consequences that will flow from any effort to assert rights that disrupt the ever-lower place to which most are relegated in the prevailing distribution of power.

Ok, but as austerity budgets chop away at the tree of life, we need to remember that all this tough-minded scrutiny of debt and entitlement costs is a prescriptive performance – a display of aggression — not just an objective description of economic fact.   Like the voices of resistance singing out for rights, cost-benefit calculations work to shape the future by declaring who and what counts (see e.g. Douglas Kysar’s critique of “objective” economics in regulation ).   Rights haven’t gone away, they’re just being moved around, to support extravagant CEO compensation, corporate-controlled government, and many other projects of austerity and hierarchy.  The problem is not just that too many people have replaced faith in equal rights with faith in unequal markets. It’s also that too many people have lost sight of the potential for power and joy from coming together to insist on a better future. That’s why we need a vision of equal rights that rests not just on law, not just on legal critique, but also on the music and art and community building that will move us beyond silence and surrender.

The Washington Post reported a few days ago on a new poll of Washington, DC residents which found that “[m]ost District residents–black and white–see socioeconomic class, not race, as the primary source of a stark divide in the city.”  The poll further found that, in some ways, “higher-income African Americans have more in common with similarly wealthy whites than with lower-income blacks.”

But the report also notes some significant caveats to the broad similarities between upper income (over $100,000) blacks and whites:  Blacks in this group “express significantly more sour views of the District’s economy than do whites.”   Further:

Higher income African Americans also are less secure than whites about their own financial well-being, more apprehensive about the spreading effects of gentrification and somewhat more critical of the state of race relations in the District.

In short, the poll shows that African Americans’ “perspectives remain shaped by decades of economic difficulty and a sense that many blacks, including some in their own families, are still struggling.”

Thus the poll confirms a few phenomena about which I’ve been studying and writing of late:

• More affluent blacks are less judgmental of poor blacks than affluent whites are of poor whites.  This is presumably because blacks are more likely to have meaningful relationships with and more frequent exposure to the economically disadvantaged within their race.  In short, blacks are less likely to buy into the “personal responsibility” basis for blaming other blacks for their economic situation.  This is surely in part because affluent blacks are more likely to have recently transcended class barriers, and they thus understand the force of structural barriers to success.

• Affluent blacks feel more economically vulnerable than affluent whites, in part because they have typically enjoyed less opportunity/a shorter period of time in which to accumulate wealth.

• Affluence diminishes barriers among racial and ethnic groups, as people of races and ethnicities tend to become more like one another culturally as they ascend the socioeconomic ladder.

The Washington Post and the Kaiser Family Foundation conducted the poll of 1,342 District of Columbia residents.