How does economic class complicate questions of vulnerability, identity and equality? This question was one of many rich threads of discussion at a recent Emory Law School workshop of the Feminism and Legal Theory Project and Vulnerability and Human Condition Initiative, Masking and Manipulating Vulnerability, organized by Martha Fineman along with Katie E. Oliviero. Lisa Pruitt raised interesting questions about legal scholars’ personal narratives of working class identity, noting that these narratives tend to be met by uncomfortable silence among academics perhaps partly afraid of confronting their own economic vulnerability and unstable class privilege in a context of looming downward mobility. In addition to Pruitt’s autobiographical comments on class and law, other ClassCrits scholars writing about their working class identity include a wonderfully funny essay by Ezra Rosser on becoming a law professor, and the recently published Feminism for Everyone, by Laura Kessler as part of a Seattle University Law Review colloquy on Joan Williams’ new book, Reshaping the Work-Family Debate: Why Men and Class Matter.
Pruitt’s comments led to a question that would make a great theme for a future workshop: is it problematic to analyze class as a category of inequality without directly engaging questions of labor rights? Does the fact of declining union membership suggest that we need to engage Americans’ experience of class as more of a cultural identity or question of individualized economic position? Or does the rollback of labor rights mean that it is especially important to resist the tendency to marginalize unions or to naturalize the constraints on workers’ power to act collectively? Laura Kessler (in her review of Williams) argues that it is important to keep the material basis of class at the forefront, noting that the often powerfully resonating (and perhaps entertaining) cultural markers of class – such as what we eat, where we shop, and where we vacation –are far overshadowed in importance by tangible economic benefits such as health insurance and retirement savings.
Developing a theory of equality grounded human vulnerability, Martha Fineman argues that equality is not about comparing the relative positions of autonomous individuals of differently ranked identities. Instead, the condition of vulnerability points toward analyzing equality as a question of the institutionalized structures that respond to particular human needs with hierarchies of state protections or penalties. That view suggests that comparison of collective power and affirmative state support must be central not only to class analysis but to other aspects of inequality. In this way, Fineman’s analysis of vulnerability and inequality is related to Martha Mahoney’s argument that class is not properly understood as a status hierarchy of individuals or groups : see Mahoney’s Class and Status in American Law: Race, Interest and the Anti-Transformation Cases, 76 So. Calif. Law Review 799 (2003). Mahoney’s article – discussed as a foundational reading in a 2007 ClassCrits workshop — explains that such status-based notions of inequality reflect a conservative notion of an“empty state” (see Ken Casebeer) imagined as “a hollow shell containing gradations of status stacked like layers in a cake. The “haves” get larger, sweeter, more highly placed layers than the “have-nots.” The state has no more to do with interaction between layers than the cake pan does with the cake.” Instead Mahoney argues for an understanding of class inequality focused on the structures and rules of government that organize economic production and concentrate power, and that such an understanding helps avoid a zero-sum game scoring various subordinated or vulnerable identities against each other.