Martha T. McCluskey

Toward a Fundamental Right to Evade Law? The Rule of Power in Shelby County and State Farm

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) contrasts with the Court’s embrace of state sovereignty in Shelby County (invalidating part of Congressional voting rights legislation). This uneven federalism represents not simply unprincipled judicial power, but instead a consistent judicial denial of the basic rationality of government deterrence of institutionalized wrongdoing. In State Farm, the Court prohibited states from imposing punitive damages sufficient to effectively respond to evidence of systemic national corporate wrongdoing. In Shelby County, the Court prohibited Congress from applying selective state voting oversight to jurisdictions with a long history and ongoing evidence of voting rights violations. Together, these cases show distinctive and disturbing solicitude to fears of speculative harms to powerful institutions from strong government deterrence. In contrast, these cases both reserve special skepticism and heightened scrutiny of evidence that harm to individual citizens or consumers can result from institutionalized wrongdoing producing unlawful structural advantages. Together, these cases suggest a vision of deference to institutional power to evade law directly contrary to the principles, history, and text of the Reconstruction Amendments.

Personal Responsibility for Systemic Inequality

Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in place of targeted financial industry culpability and penalty. By presenting unequal economic loss as the inevitable result of generally beneficial systems, this flawed logic concludes that the most legitimate response to systemic failure is unequal personal sacrifice, not political mobilization in support of stronger protection from unequal risk and plunder. This chapter explores how this message weakened the majority report of Financial Crisis Inquiry Commission, despite its voluminous evidence of institutional problems. Further, it shows how this message inverts legal responsibility for devastating corporate wrongdoing, so that sacrifice by innocent victims appears to be more productive and proper than fair and meaningful law enforcement. Finally, I analyze how this troubling message is implicitly advanced in the seemingly progressive intellectual defense of equality by legal scholar Daniel Markovits. Markovits challenges the traditional personal responsibility argument that unequal poverty and insecurity stem from bad individual choices. Yet because he assumes that this inequality generally comes from benign institutions limited by natural scarcity, his reasoning nonetheless tends to suggest that responsible policy requires accepting substantial individual sacrifice by those who lose out. To instead revive the ideal of equality, we must go further to challenge the assumption that political economic structures and institutions regularly producing unequal and severe economic harm deserve submission rather than reform.

How Money for Legal Scholarship Disadvantages Feminism

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources and structures of support for feminist or gender scholarship to those developed for economic analysis of law focused on free-market or neoliberal policy and business interests reveals substantial differences. Further, much of this conservative institution building has been dominated by men and has served to promote legal scholarship by white men in particular. I conclude by considering how feminist legal scholarship might better develop institutional support despite access to much less money.

How the 'Unintended Consequences' Story Promotes Unjust Intent and Impact

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality. As part of a LatCrit XV symposium taking a “bottom-up” view of the recent economic downturn, this paper links the recent crisis to longstanding colonial and neoliberal policies facilitating upward redistribution and plundering of natural resource wealth in developing nations. Here, the global financial industry tapped the home equity cultivated by large numbers of middle-income or working class Americans. Capitalizing on the vulnerability of many homeowners in a context of growing economic insecurity and inequality, the financial industry used pervasive fraud to sell unsound mortgages that produced enormous short-term gain for financial industry owners and managers. Then as this debt collapsed, government protected much of the financial industry from the harmful results, while imposing austerity policies on those in the middle or bottom, particularly communities of color. “Unintended consequences” narratives have served to detract attention from democratic debates about the moral and political intent of the policies causing and responding to the financial crisis. First, the phrase presents harmful results as the result of inevitable technical challenges to implementing widely supported principles, obscuring the contested interests and ideologies behind recent monetary and regulatory policy, for example. Second, the phrase helps excuse intentional wrongdoing, including financial industry criminal activity, by recasting refusal to enforce or comply with the law as a normal and natural response to incentives. Third, the phrase helps invert harmful intent, making those with the least legal and economic power appear to have the most suspect interests and values. By attributing benign intent to policies of inequality, any resulting harm appears to be the fault of those most harmed, rather than those who gain at their expense. Finally, the “unintended consequences” theory conveys a false sense of inevitability to harmful policies, evading analysis of alternative policy choices with better results.

Razing the Citizen: Economic Inequality, Gender and Marriage Tax Reform

This chapter links the failure of U.S. social citizenship ideals to a broader weakness in U.S. ideas citizenship. To better advance policies of economic equality, U.S. law and politics needs a stronger vision not just of economic equality, but of gender equality and of democracy in general. Feminist scholars have analyzed how ideas about gender help shape the common assumption that the costs of raising and sustaining capable, productive citizens are largely private family responsibilities. But ideas about gender also help to undermine egalitarian economic policy by subtly shaping a vision where civic virtue ironically includes the project of razing citizens: turning democratic citizens into pre-modern subordinates dependent on private power. I use the example of recent tax policy reforms focused on reducing the so-called marriage penalty to show how problematic ideas of gender, anti-citizenship, and economic inequality have become entangled and how these must be reconsidered together to promote a meaningful vision of equal citizenship.