October 20, 2006

The Law in Shambles

Category: Academic,Books/Articles,Politics — Biella @ 7:34 am

Many moons ago, when I started my project on F/OSS I imagined that it would stay within the purview of anthropology, hacking, science and technology studies to bleed only a little bit into legal studies and only because I was dealing with the fraught politics of intellectual property law. As it turned out, the Law, with a capital L, as on object of analysis and site for the production of cultural value, turned out not to be peripheral but utterly central… And since, I have pretty much stayed within the territory of legal studies, vastly interested in the more invisible cultural and political effects of the law.

Recent obsessing on this topic has led to a nascent thesis about law, discrimination, politics , and civil rights that I am looking to substantiate (so if anyone has any citations or helpful hints, do pass along) and it is this: When there are positive changes made in the law, it can come with various political costs. And the one I am interested in, is how, given other conducive conditions, legal changes that look awesome on paper, can work to undermine its potential by breeding a type of complacency of (in)action, largely because it seems as if the worst of the problems have been fixed. So if we look to the American legal context of 1960s and 1970s as a prime example, it is clear there was a heck of a lot of turmoil in the arena of civil rights, much of which, many liberals and progressives would say, led to positive legal transformation. During this period the content of many laws were purged of overt discrimination that, for example, which led a lethal blow to segregation and started to dismantle some of the worst pieces of scaffolding of mental health law (just to cite a few examples).

At one level while we may easily recognize these changes as laudable and even perhaps “progressive,” the effects of it may be less so. Once legal content is purged of the “ugly,” this can breed an ugly form of complacency, in which the problem seems (re)solved, so people no longer feel guilt and attention is diverted away from any number of things, like: 1) new problems not necessarily addressed in the law 2) the rise of new laws or 3) the fact that the law is empty unless actively applied.

I have yet to read anything directly related to this theory or apply it myself but it is something that has been on my mind for a couple of years now. But after talking about this topic from a friend, I decided to finally take crack at “The Law in Shambles” a Prickly Paradigm Press pamphlet by Thomas Geogheghan, a labor lawyer from Chicago. While it did not specifically address the issue I am raising (though it got pretty close in a number of places) I got more than I had bargained for; it is truly incisive (though frighteningly depressing) look at the current state of the law, and also, like so many of the PPP’s, much more fun to read than any most academic book or articles.

For those who don’t know the PPP publish a series of short pamphlets and it was started by the legendary anthropologist, Marshal Sahlins, who is also known to be a little prickly himself (but it softened by his humor). They are often written by academics on contemporary topics of political interest (read: very biased) in a manner that is a lot looser and free wheeling than any article or book that would come out of an academic journal or publishing house. The PPP allows its authors to unbuckle a few notches off the sometimes uptight, constraining academic belt of writing and the result is often impassioned, funny, and yet remarkably astute essays. If Montaigne were around today, he would surely be proud of his essayistic legacy.

The title of the book sums up the the topic at hand. His explanation as to why the (American) law is in disarray has not to do with the law in the abstract but with the total disintegration of a certain class of institutions and a specific class of law (namely unions , the law of trusts etc.). As institutional supports from the New Deal have been thrown out the door, it is the individual, largely through tort law, who has had to wield the fury of the law, in defense of a slew of individual rights and to defend themselves against new forms of attack (the worst being lawsuits brought forth by “charitable institutions” like hospitals).

While the law is conceived as something we are all equal under, of course, it is access to the law, which makes all the difference in terms of making it a viable (or not) as social tool. With the demise of the unions, he argues, came the death of certain type of contract law in employment, and the stellar rise of tort law, which conceives of wrongful acts not as breaches of contract (which would apply to all persons under the contract) but as matters of personal injury. Whereas in the past unions would arbitrate contract law, wielding the power of numbers so that individuals were not burdened and burned with the expense (of time and money) of the law, with tort the law becomes formalized, conceived, and imagined in highly individual terms (even when grouped into class actions, it becomes a matter of proving personal injury), the effect of which, he argues is “meaner and more complex” than contract for four reasons 1) The name of the legal game is to discover “motive,” which is about as confusing as it can get and thus more arbitrary 2) It is more expensive than old contract law 3) Cases rarely go to trial (didn’t really get the importance of this point) 4) Because its focus is on motive and intense and subjective states, everything is open to scrutiny, so that “I can force you to tell me everything—what is in your secret heart. Not to mention in your tax returns.” The result is torts produced a bitter, dog-eats-dog Hobbesian, legal world, which in turn makes for experiencing the law as an arbitrary force.

This individualization of the law through tort also intersects with many other changes such as the demise of regulatory power that add more fire to the disintegration of the law and the subsequent experience of law and life as arbitrary. And it is this chapter (From Administrative Law to No Law, The Rise of the Whistleblower and Trail Lawyer) which got me a little closer to my own point that I brought up above. For example, he writes:

“Once, when I filed suite to get the Labor Department to enforce the child labor laws for 16- and 17-year olds, kids whom they do not even pretend to protect, I got nowhere. I met with the Solicitor who told me: “Look, suppose I agree with you. How would I ever get the money to enforce it?” He was right. If I had won and they had issued regulations, it would have only been worse. In Labor, as in agency after agency, we have a vast complex body of law—which would take mandarin to learn—that no one enforces.. The law is “there.” On paper. Indeed, it is a lot of paper. How much paper? Fifty volumes, in paperback in total. I know because I counted. But as to big chunks in these volumes, there is no one there to enforce it.” p. 48

Lots of paper I think can make people comfortable in thinking that famous Virginia Slims Slogan, “We’ve come a long way, Baby,” when it fact, it can often just means what it literally looks like, “Damn, that’s a buttload of paper.”

There is a lot more packed into this tiny book, covering the deep gulf between left and right, the stagnation of an old constitution that is impossible to revise, the loss of accountability in all branches of government, the redrawing of districts, and the slight expansion and curbing of of majoritarian voting in the last hundred years. It gets a little shrilly by the end, but you know, it is all pretty upsetting stuff and it is good to shrill from time to time.

Though he never refers to neoliberalism, capitalism, or postmodernism, this book is also a great companion to a class of this literature on the rise of fragmentation and instability in social and cultural life brought forth by changes in the economic system (thinking here of David Harvey, Fredric Jameson, etc). In fact, I think it does a much better job than at relaying how it is that vast sectors of society experience fragmentation, instability, and frustration.

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