The Substantive Politics of Formal Corporate Power

Corporations increasingly dominate the U.S. civil justice system, as Marc Galanter explains in his recent article, Planet of the APs: Reflections on the Scale of Law and its Users, 53 Buffalo L. Rev. 1369 (2006). My article builds on Galanter\u27s discussion of corporate legal power by subjecting it to a critical legal perspective. In the conventional legal framework, corporations\u27 privileged position appears to be an intractable puzzle, not an urgent injustice. That is because corporate power seems to be the generally necessary byproduct of a generally benign form (large, complex, legalistic organizations) or of generally benign, widely-shared normative principles (economic efficiency or proceduralism). Critical analysis, in contrast, opens the door to substantive change by exploring how substantive political conflict and subordination permeates and supports particular dilemmas of form and formal principle. This article explores the particular substance of the contemporary U.S. corporation not as the natural and necessary modernization of economics and law but as a contingent result of political conflict - and more specifically and substantively, as the result of class and caste hierarchy. The article traces how this substantive politics of class and caste became institutionalized as seemingly neutral corporate form in the nineteenth century, and also became constitutionalized through Supreme Court decisions affording corporations increasing protections from democratic process. The article argues that the Supreme Court\u27s recent decision in State Farm Mutual Automobile Ins. Co. v. Campbell further constitutionalizes class hierarchy through a revived substantive economic due process doctrine that has implications beyond the narrow question of punitive damages at issue in the case. Inverting the reasoning of Carolene Products footnote four, the Court construed large corporations as persons deserving special protection from substantive political and legal accountability, despite - or perhaps because of - corporations\u27 particular power to subvert the political and legal process in the interest of the most privileged. The article concludes by explaining that progressive reforms should aim not to supplement the corporate form (or judicial formalism) with more moral and social substance, but instead to challenge and change both the particular substantive values and the technical institutional forms that structure the corporate-centered U.S. legal and economic system

How the Biological/Social Divide Limits Disability and Equality

What is disability - a biological or social condition? In the conventional equality frameworks, the division between biology and social identity puts disability at the bottom of the formal equality hierarchy, but at the top of the substantive equality hierarchy. Compared with race and then gender, disability deserves the least protection against formal discrimination, on the theory that disadvantages are based on real and relevant functional differences more than on suspect social judgments. But turning to substantive equality, disability’s supposed greater biological basis justifies affirmative accommodation of difference, compared to the social differences of race, with gender in the middle as a mixture. But for both of these equality scales, the social versus biological division undermines the protection seemingly given to the identity at the top of the hierarchy. By adding sexual orientation to the hierarchy, and by showing how Kenji Yoshino’s analysis of “covering” destabilizes the biological-social division, I further explore the problematic nature of these hierarchies and disability’s position within them. Two contrasting areas of disability law show the limits of this theoretical biological and social divide. Many states’ workers’ compensation systems recently have embraced a biological model of disability benefits that focuses on the American Medical Association’s Guides to the Evaluation of Permanent Impairment. On closer examination, the AMA Guides concept of biological “impairment” is thoroughly dependent on social and normative judgments, and serves mainly to reduce protection of disability. In contrast, the Supreme Court interpreted the Americans with Disabilities Act with a social model that rejected “impairment” as the basis for defining disability, but that approach similarly served to rationalize reduced protection for disability. Instead, disability doctrine - and equality law in general - should be re-oriented to reject this central division between biological and social origins

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

Published as Chapter 12 in Gender Equality: Dimensions of Women\u27s Equal Citizenship, Linda C. McClain & Joanna L. Grossman, eds. 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.https://digitalcommons.law.buffalo.edu/book_sections/1178/thumbnail.jp

Personal Responsibility for Systemic Inequality

Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds. 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.https://digitalcommons.law.buffalo.edu/book_sections/1174/thumbnail.jp

Facing the Ghost of \u3cem\u3eCruikshank\u3c/em\u3e in Constitutional Law

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank (1876), we can provide a more complete and complex vision that legitimates the Constitution as a basis for higher expectations of substantive justice. Building on James Gray Pope’s important scholarship on the case, I argue that Cruikshank highlights the long shadow of judicial unwillingness to enforce constitutional rights. This refusal is not just a historic failure, but also underlies the complicity of Constitutional law in the ongoing injustice of state-based racial violence, based on the continued authority of doctrines established in Cruikshank

Toward a Fundamental Right to Evade Law? Protecting the Rule of Unequal Racial and Economic 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