Link to an article by Bill Henderson:
This article conveys some useful factual information, but the commentary is troublingly limited. The article states, “Our legal system as it pertains to ordinary people is unraveling. *** No amount of tinkering at the edges is going to fix or reverse these trends. Instead, we need a series of fundamental redesigns.” It then proceeds to suggest…tinkering at the edges. The fundamental problem with the article is that it depoliticizes a fundamentally political issue, and then proceeds to suggest at most technocratic fixes at the edges that don’t touch the underlying political questions. The questions? Well, first off the anti-labor, pro-business and pro-finance policies are at the heart of the so-called neo-liberal political project, inaugurated by things like the Trilateral Commission’s report warning about an “excess of democracy” or the infamous Powell Memo. The decline of what Henderson calls the “PeopleLaw Sector” is just a small corollary to the intended political policies of neo-liberalism, which tends to be just a financialized version of the exclusionary logic of liberalism — which has always promoted economic polarization. Of course, the root problem is capitalism, but its symptoms are also the increasingly extreme concentration of wealth in the hands of corporations and a small plutocratic elite. Lawyers (like so many others!) generally follow the money, and also seek prestige, and most lawyers won’t be swayed by exhortations and moral chiding to forego money and prestige. And frankly, the economic base for them to do so is shaky and limited without changes to the economy that are only possible in the realm of politics. Henderson links to an article by Deborah Merritt, which further emphasizes minor technocratic fixes, mostly surrounding law school education. Neither article addresses the problem of decreasing public funding for higher education, including law schools, which has the (intended) effect of pushing lawyers to accept corporate jobs to pay off the staggering tuition costs (increasingly pushed away from the state and onto students). Pierre Bourdieu usefully developed the metaphor of the left hand and the right hand of the state to make a similar point.
Henderson is correct, to a point, that “we are either going to redesign our legal institutions or they will fail.” (Assuming he means they fail for most people; the current institutions are quite effective for the so-called “1%” [or really the “0.001%”] at present). But redesigns to legal institutions without large redesigns of political institutions that shape the overall economy will produce no long-term changes. But of course, Henderson doesn’t seem to want that. He writes about finding “creative ways to restore the balance.” What historical balance, precisely, is he referring to? Is this yet another (implied) invocation of the “Keynesian” (or “Bretton Woods”) post-WWII “golden years” of prosperity and growth, which depended on things like the destruction of industrial capacity in much of the world, racial discrimination, sexism/patriarchy, military and financial imperialism, wanton environmental destruction, etc.? I don’t think there was a time in the past that we can say had anything close to a reasonable “balance” in the American legal system. As Alan Nasser put it: “A rational and historically informed response to the legend of the middle class is that this alleged stratum of the 1920s and the Golden Age existed for a mere 34 years of American history. Before the 1920s just about all working-class people were poor. Since 1974 then we have had 42 years of burgeoning inequality, un- and underemployment, growing poverty and steadily declining wages with no end in sight. The middle class was a departure from the historic norm of a materially insecure working class, the default position of industrial capitalism.” Reference to “balance” (in a purely domestic sense) is just coded language in a way parallel to the slogan “Make America great again.”
I guess, in short, my major concern is that Henderson seems to suggest narrowly framing symptoms of class warfare in the legal sector as root problems that permit sufficient populist/technocratic fixes solely within the legal sector, bracketing out the larger society-wide political dimension of class warfare (and avoiding a class-based materialist analysis in general) that better explains the origins of the (very real) downstream symptoms he chronicles in the legal sector. For the kind of analysis I would like to see Henderson engage in, see Jeffrey Reiman’s …And the Poor Get Prison (which deals just with criminal justice), Jodi Dean’s “This Changes Some Things” (critiquing Naomi Klein’s milquetoast environmental populism) or Alenka Zupančič’s outstanding article “The Apocalypse is (Still) Disappointing” (detailing typical liberal McCarthyite arguments rooted in bad faith and a kind of blackmail). I guess you could paraphrase Zupančič here by saying the (legal) apocalypse is (still) disappointing.