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.