Political Economy, Capitalism and the Rule of Law

There is a symbiotic relationship between a society’s form of economic activity and the Rule of Law institutions that support, facilitate, and limit that activity. Economic activity and Rule of Law institutions interact in a dynamic relation that creates, allocates, denies, and adapts power among competing entities. The core fact is that of transformation of the nature of power and the identities of those who control it. Nothing in such a system remains static and, unlike other systems, it is the natural effect of the system to reward its participants for creative contributions that sustain and advance its dynamism. The Rule of Law in the Western democracies represents the collection of deeper cultural values within which the dynamic activity takes place and operates as a facilitator, governor and definer of the economic activity by which power is distributed and social goods created and shared. Joseph Schumpeter once explained: “The capitalist process not only destroys its own institutional framework but it also creates the conditions for another. Destruction may not be the right word after all. Perhaps I should have spoken of transformation.” This point is raised because it seems quite obvious that we are at a point of transformation and that, while we can understand that fact without question, we still have no clear idea about the full nature, scale, elements, timing, costs, benefits or consequences of that transformation. It is much like Nikolai Kondratiev observed in accordance with his description of “Kondratiev Waves” that periodically affect the form and structure of an economic system. A key aspect of Kondratiev’s “Wave” concept is that the system does not simply change in degree as a linear phenomenon but shifts “in kind” and takes on new characteristics while discarding some of those associated with its previous form. Although there are challenges to the existence of the periodic “waves” in terms of their specific timing there is no real dispute that capitalist societies undergo periodic fundamental transformations. Technological developments in communication and automation are currently driving such a fundamental transformation. Moreover, despite that this wave of development arguably began in the mid-1990s, the end state is still mostly conjectural. Given what we are saying about the close connection between economic activity and the Rule of Law, we assert that it is difficult to understand either sub-system in isolation from the other. It is also inevitable that the Rule of Law element, while creating a framework within which economic activity occurs, is largely controlled and caused by the economic factors that are supported by the system generated by strong Rule of Law institutions. We are fully committed to the Western version of the Rule of Law and consider the form that economic activity takes in Western democracies as a vital “cause-and-effect” element of that system. In this brief analysis we will explore these considerations and provide some context and support for the assertion. At the beginning we want to make plain that this exercise is not empirical or evidential. It is not perfectly rational or demonstrable through use of pure logic or Reason. Nor do we want to conceal or deny that in some ways the insights or claims offered are not partial, presumptive, based on principles that cannot be proven, hypocritical, or representative of ideals rather than “truths”

Truth or Consequences in Legal Scholarship?

There has been an erosion of the ideal of truth as a guiding force for what we do. This includes a dishonoring of the tradition of the truth-seeking function of scholars. For the university-based intellectual, including legal scholars, the problem with commitments to ends other than truth-seeking is that once we accept a mission distinct from the pursuit of truth and honest discourse, most of the remaining options are suspect - including falseness, hypocrisy, self-deception, subordination of self to a collective, profit, dogmatism, devotion to tradition, and propaganda. Although what we intend by the idea of truth - legal, scientific, political and otherwise - is obviously subtle, wide-ranging, functionally disparate and perhaps impossible to make entirely concrete, this essay concentrates on the complex and beleaguered phenomena of truth and truth-seeking within academia and the noncumulative disciplines of which law is a part. This focus is chosen because of the belief that a society without commitment to the ideal of truth with integrity and honesty (even if not entirely real or provable) is not a community but only a collection of disparate people seeking to take advantage of each other while never being able to trust the validity of anyone or anything. A society without the ability to negotiate reliable terms of what will be considered true and thus authoritative is one in which promises are meaningless, nothing is reliable, and betrayal is a predictable and even inevitable condition of relationships. Western societies grounded on the Rule of Law cannot afford to surrender such a basic principle without devolving into a system operating on increasingly prevalent use of force and Machiavellian machinations by fragmented but powerful political cliques. Camus warns of the distortion that occurs when individuals engaging in the struggle to achieve what they think to be social justice simultaneously try to be clear-thinking scholars. Consider his poignant observation in the context of the creativity of the artist and the need to keep sufficient distance from the heated conditions of society in order to retain a clear perspective. He writes: [I]t is not possible to be a militant in one\u27s spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena. Yet between the two lies the arduous way of true art. It seems to me that the writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history. We have lost the distance and are increasingly consumed by ideology and the narrowness of political perspective. A result is that much of what is said in noncumulative academic disciplines such as law is suspect

\u27Fire Away\u27: I Have No Right to Not Be Insulted

Universities are the institutions responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, critical of their core belief systems or threats to their agendas. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible for their misfortunes in a democracy this is a fundamentally wrong policy that ultimately tears apart the social fabric. I believe that many of the outraged reactions to speakers’ phrasing in many areas where “outrage” is voiced are insincere and done primarily or exclusively for purposes of gaining political advantage. This “fake offensiveness” -- “or OMG I am so hurt and offended” -- occurs because it is the ammunition by which interest groups gain political advantage. Yet universities, our supposed hotbeds of free and critical thinking, are co-conspirators in suppressing the intellectual independence and stifling the values they are supposed to be instilling in their students. The Renaissance and the Enlightenment were intended to free us from centuries of darkness and ignorance in ways that allowed the full flourishing of humanity. Unfortunately it turns out that we are less as a species than hoped and considerably less interested in open-minded freedom of thought and expression. Albert Schweitzer argued decades ago: “The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit…by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history.” The situation has rapidly degraded since Schweitzer spoke. There are several causes. In part the decline is due to the emergence of the Internet and related communications technologies. Although they offer incredible tools for the management and dissemination of knowledge, they have unfortunately bestowed power on fanatics and ideologues. In doing so we have opened an electronic “Pandora’s Box” full of hate, vitriol and ignorance. A result is the rapid fragmentation of society into aggressive actors and indignant cults. This has produced a social and political balkanization dominated by single-interest groups that are intent on achieving narrow agendas. These groups and political activists operate without any willingness to consider how their interests fit within the dimensions of an overall community where balance is necessary and compromise is not weakness but the “glue” that holds us together

Effective Strategies for Protecting Human Rights: A Conference Engaging the International Community

Human rights protection needs teeth. And those who work in the disparate field of human rights need to see the system more comprehensively and strategically. Far too often, political issues interfere with enforcement of human rights laws and allow violators to hide behind the unwillingness of national governments to take action to enforce existing laws against human rights violators. Lack of commitment to human rights enforcement or timely preventative or intervention actions have led to violators being left unpunished for torture, rape and genocide. This failure of governments means that there is a lack of deterent power sufficient to inhibit potential human rights violators who know they will not be legally pursued after a conflict has ended

On the Make : Campaign Funding and the Corrupting of the American Judiciary

The thesis offered here is that the cost of judicial campaigns has reached a level where both candidates and sitting judges are shaping their behavior to attract financial and other support. This not only results in distortion of judicial selection by repelling meritorious potential candidates who are unwilling to compromise their principles, but in the capture of judges by special interests willing to finance judicial campaigns. Some argue that the great increase in contributions to judicial candidates simply means that contributors are giving to candidates they feel certain will support their positions. To some extent this is certainly true. But even in those situations the legality of the action does not mean it is socially desirable or without harmful consequences

The Purposes of the University in the First Quarter of the Twenty-first Century

This article examines the history of universities, the role of the new university in American society, and the mission of the modern university

Language Control, \u27Hyper-Sensitivity\u27 and the Death of True Liberalism

The Rule of Law in America is buttressed by the idea of free speech. Universities are supposed to be centers of free speech, dialogue and learning, in the process educating and preparing students to protect and preserve the unique ideal of the Western version of the Rule of Law. This includes the importance of competing factions attempting to achieve compromise through political discourse. There is a rather significant problem, therefore, when the dynamic and often contentious interactions that produce the ability to recognize the potential legitimacy of others’ arguments and the flaws in one’s own are short circuited by political agendas that punish speech rather than engage in true discourse. In that situation, the ability and willingness to hold onto such ideals as are inherent in the Rule of Law are being irreversibly damaged. My fear is that the mission of the university is being altered and in some instances undermined by the heightened sensitivity of feelings among students, faculty and administrators who seem to be hurt or offended by almost anything. While the sensitivity may be real, imagined, part of an aggressive “mob mentality” or faked as a political ploy the “appropriation” and linguistic control movement is remarkable in its scope and import. The truth is that rather than being a legitimate educational strategy in too many instances what is occurring is a ploy to gain and exercise power through the control of language and the ability to accuse others of treating one “insensitively.

Truth or Consequences in Legal Scholarship?

There has been an erosion of the ideal of truth as a guiding force for what we do. This includes a dishonoring of the tradition of the truth-seeking function of scholars. For the university-based intellectual, including legal scholars, the problem with commitments to ends other than truth-seeking is that once we accept a mission distinct from the pursuit of truth and honest discourse, most of the remaining options are suspect - including falseness, hypocrisy, self-deception, subordination of self to a collective, profit, dogmatism, devotion to tradition, and propaganda. Although what we intend by the idea of truth - legal, scientific, political and otherwise - is obviously subtle, wide-ranging, functionally disparate and perhaps impossible to make entirely concrete, this essay concentrates on the complex and beleaguered phenomena of truth and truth-seeking within academia and the noncumulative disciplines of which law is a part. This focus is chosen because of the belief that a society without commitment to the ideal of truth with integrity and honesty (even if not entirely real or provable) is not a community but only a collection of disparate people seeking to take advantage of each other while never being able to trust the validity of anyone or anything. A society without the ability to negotiate reliable terms of what will be considered true and thus authoritative is one in which promises are meaningless, nothing is reliable, and betrayal is a predictable and even inevitable condition of relationships. Western societies grounded on the Rule of Law cannot afford to surrender such a basic principle without devolving into a system operating on increasingly prevalent use of force and Machiavellian machinations by fragmented but powerful political cliques. Camus warns of the distortion that occurs when individuals engaging in the struggle to achieve what they think to be social justice simultaneously try to be clear-thinking scholars. Consider his poignant observation in the context of the creativity of the artist and the need to keep sufficient distance from the heated conditions of society in order to retain a clear perspective. He writes: [I]t is not possible to be a militant in one\u27s spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena. Yet between the two lies the arduous way of true art. It seems to me that the writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history. We have lost the distance and are increasingly consumed by ideology and the narrowness of political perspective. A result is that much of what is said in noncumulative academic disciplines such as law is suspect

Clinical Education at the Crossroads: The Need for Direction

This Commentary rests on five premises. The first is that it is both possible and necessary to understand clinical legal education as a general instructional method. The second is that all legal educators must be more willing to reexamine and clarify the purposes of legal education and to engage in discussion about the primary educational goals to be served. The third premise is that different educational methods possess distinct capabilities for the attainment of specific educational goals and that certain applications of the clinical method are manifestly superior vehicles to facilitate learning in the area of professional responsibility. The fourth is that the teaching of professional responsibility should become a highly emphasized goal of legal education. The final premise is that the clinical method can be legitimately adapted throughout the legal curriculum; however, different adaptations of the clinical method will generate dissimilar kinds of learning. In this regard, three models for the implementation of the clinical method, designated as the strict, specialized, and complementary models, are set out in the final portion of the Commentary

The Future of Work: Apps, Artificial Intelligence, Automation and Androids

The analysis offered here is not a Neo-Luddite rage against “the machine.” As with the oft-stated reproach about paranoia, there sometimes really are situations in which people are “out to get you.” In our current situation the threat is not from people but from the convergence of a set of technological innovations that are and will increasingly have an enormous impact on the nature of work, economic and social inequality and the existence of the middle classes that are so vital to the durability of Western democracy. The fact is that developed nations’ economies such as found in Western Europe and the US are facing a convergence of technologies that fit into Joseph Schumpeter’s idea of “creative destruction” but without the “creative” phase of economic rebirth. The forces and technologies pushing us in this direction are relentless. In a globalized market economy where power and authority are dispersed across borders with nations holding incompatible interests and agendas and policy dictated by unaccountable multilateral institutions we lack the ability to impose limits on what is occurring even if we wanted to. This discussion is only peripherally about law schools and lawyers. Those two institutions are nothing more than derivative manifestations of what is occurring in our larger systems rather than the drivers or creators of economic and political forces. As US law schools experience a dramatic downward shift in applications and enrollments, concerned and increasingly panicked law faculties at many institutions are looking in the wrong direction and at the wrong factors in trying to determine their future. This is because anyone attempting to tease out strategies by which we can adapt to economic change by designing positive plans of action based on past cycles and workplace conditions is chained to a bench in Plato’s Cave — mistaking flickering shadows for concrete reality