Tag: Economics

Bill Henderson – The Decline of the PeopleLaw Sector (037)

Link to an article by Bill Henderson:

“The Decline of the PeopleLaw Sector (037)”

 

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.

Matt Bruenig & Ryan Cooper – How Obama Destroyed Black Wealth

Link to an article by Matt Bruenig & Ryan Cooper:

“How Obama Destroyed Black Wealth”

 

As is typical for writing in Jacobin, this article includes a section at the end that draws conclusions unsupported by the body of the article.  For example, the authors state, “No political obstacle stood between President Obama and a better housing policy.”  The article does not address political factors at all, so this is a bald assertion without support.  It also is questionable.  While certain other studies have established how the Democrats during Obama’s era have courted Wall Street and other banking/finance donors, if you follow (for example) Thomas Ferguson‘s “Golden Rule” theory about “investment” in elections, which holds (in greatly simplified form) that politicians are vetted by moneyed interests and masses are too poor to be able to influence the choices offered in an election, then the authors would need to establish that Obama could have raised the same or more money elsewhere (Bernie Sanders’ small donor approach seems like the closest and easiest comparison point).  This also requires an assumption that Obama and the Democrats care/cared about long-term consequences, rather than limiting themselves to short-term thinking (e.g., sacrificing the future for a near-term win) — which is normative.  That criticism aside, the linked article does do a good job illustrating how the problem discussed is fundamentally political in character.

Jodi Dean – The Limits of the Web in an Age of Communicative Capitalism

Link to a video of a lecture by Jodi Dean:

“The Limits of the Web in an Age of Communicative Capitalism”

Bonus quote:

“In communicative capitalism, capitalist productivity derives from its expropriation and exploitation of communicative processes.

***

“If we are honest, we have to admit that there is actually no such thing as social media. Digital media is class media. Networked communication does not eliminate hierarchy, as we believed, in entrenches it as it uses our own choices against us.

***

“Dispossession, rather than happening all at once, is an ongoing process. No one will deny the ongoingness of data dispossession. Sometimes it is blatant: the announcement that our call will be monitored for quality assurance, the injunctions to approve Apple’s privacy changes again or the necessity of renewing passwords and credit card information. Sometimes the ongoingness is more subtle; in maps, GPS signals, video surveillance, and the RFID tags on and in items we purchase. And sometimes the ongoingness is completely beyond our grasp, as when datasets are combined and mined so as to give states and corporations actionable data for producing products, patterns, and policies based on knowing things about our interrelations one to another that we do not know ourselves. Here the currents of lives as they are lived are frozen into infinitely separable, countable, and combinatory data-points.

“Approached in terms of class struggle, big data looks like further escalation of capital’s war against labor.”

“Communicative Capitalism and Class Struggle”

 

Bonus links: C.T. Kurien, “The Market Economy: Theory, Ideology and Reality” and Astra Taylor, The People’s Platform and “The Power Of Selling Out: Your Customers As Political Capital” and Nick Srnicek, Platform Capitalism and Nick Dyer-Witheford, Cyber-Proletariat: Global Labour in the Digital Vortex and Alexander Galloway and Eugene Thacker, The Exploit: A Theory of Networks and The Uprising: On Poetry and Finance and Victor Pickard, “Net Neutrality Is Just the Beginning” and “The Collapse of Media and What You Can Do About It” (this article discusses the “breaking” of a self-described “exclusive” story in January 2015 that was for the most part already suggested in When Google Met Wikileaks published in September 2014, though this story was certainly fleshed out further by the later report; this also was used as a plot point in the film Jason Bourne) and “Prosumer Capitalism: Mario Maker 3DS”

Jeffrey Reiman – …And the Poor Get Prison

...And the Poor Get Prison: Economic Bias in American Criminal Justice

Jeffrey Reiman – …And the Poor Get Prison: Economic Bias in American Criminal Justice (Allyn and Bacon, 1996)

Jeffrey Reiman’s …And the Poor Get Prison: Economic Bias in American Criminal Justice is a 1996 edition of a book first published in 1979 and republished in revised editions through the eleventh edition in 2016 (most under the title The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice).  Paul Leighton became a co-author on later editions.  The book is intended primarily for use as a textbook for college-level criminal justice coursework.  But it remains readable for general audiences as well.  This review addresses an edition now over twenty years old, and does not compare either newer or older editions.

In short, this book presents an outstanding critique of the ideology behind American criminal justice, concluding that the system and its institutions are biased against the poor.  What is most commendable about the book is that it is structured in a logical and coherent way, it provides citations and evidence for every one of its arguments, and it responds to typical counter-arguments.  In other words, rather than a polemic that simply asserts its thesis without testing it, or attempting to side-step normative moral and political judgments by hiding behind technocratic language (so-called “university discourse”), the book attempts to ground and defend its positions in an explicitly materialist way.  While it would be fair to say that not every individual argument in the book is well-taken, be it due to outdated or incomplete statistical information or something else, the overwhelming majority of what is presented is supported by both coherent theory and some type of empirical data.

The normative positions taken by Reiman are ultimately defended on moral terms, rather than on a “mistaken facts” basis.  In other words, he does not fall back on the weak justification that things would change if only people knew what the facts really were.  The saying from the total quality improvement discipline, that every system is perfectly designed for the results it currently achieves, fits perfectly into Reiman’s analysis, as does Machiavelli‘s observation that the law is merely the means by which the strong oppress the weak.  Indeed, he mentions teaching a class in which he asked his students a question: how would they design a criminal justice system so that it “would maintain and encourage a stable and visible ‘class’ of criminals.”  The students indicated that it would look pretty much like the current American criminal justice system.

As Alex S. Vitale writes in a more recent book, The End of Policing, “Powerful political forces benefit from abusive, aggressive, and invasive policing, and they are not going to be won over or driven from power by technical arguments or heartfelt appeals to do the right thing.”  Reiman recognizes this too.  In this edition of his book, he alludes to this problem.  His goal is not to outline a specific political problem merely to justify addressing it in a particular predetermined way, but rather to detail the set of interrelated problems that justify a significant political intervention of some sort, the particulars of which are not fully determined.

Reiman establishes a few points that should, now at least, be considered incontrovertible:

“1. Society fails to protect people from the crimes they fear by refusing to alleviate the poverty that breeds them . . .

“2. The criminal justice system fails to protect people from the most serious dangers by failing to define the dangerous acts of those who are well off as crimes . . . and by failing to enforce the law vigorously against the well-to-do when they commit acts that are defined as crimes . . .

“3. By virtue of these and other failures, the criminal justice system succeeds in creating the image that crime is almost exclusively the work of the poor, an image that serves the interests of the powerful . . . .”

Reiman’s overarching explanation for all this is something he call a “Pyrrhic Defeat” theory, a kind of feigned loss to achieve unstated or disavowed aims, which is something vaguely akin to the plot of the Cold War spy movie Enigma in which a spy is set up to be caught in order to conceal the true aims of his agency handlers.  In the details, Reiman admirably explains how bias in upstream aspects of criminal justice are more damaging than downstream ones.  For instance, legislation that exempts the actions of the rich from the definition of “crime” means that the rich never enter the criminal justice system in the first place, and sentencing fairness is therefore irrelevant to them.  While bias in downstream events like sentencing do matter, by that stage most of the rich have been filtered out of the system.  A key point here is prosecutorial discretion.  Reiman notes how it remains an opaque process still rife with opportunities for bias that have been restricted in other areas.

There are a few flaws in this edition.  For instance, Reiman argues that his “Pyrrhic Defeat” theory is not a “conspiracy theory”.  But this is somewhat a strawman argument, with Reiman applying an unduly narrow criminal law definition of “conspiracy”.  It also overlooks a similar sort of middle-ground position like the “propaganda model” of mass media put forward by Edward S. Herman and Noam Chomsky, which emphasizes the reinforcement and reproduction of an ideological system while also suggesting causal intent, or the psychoanalytic concept of denial/disavowal/Verleugnung, in which denying something that affects an individual is actually a way of affirming what he or she is apparently denying.  Indeed, Reiman’s focus on the criminal justice system as such means he only discusses mass media complicity in passing, which seems like too little treatment — doesn’t the mass media play a key role influencing what “crimes” people fear?  Additionally, Reiman makes a conservative argument about gun control that is contrary to his other arguments (i.e., is non-materialist), and counterfactual.  More recent evidence suggests that banning firearms will not reduce murder or suicide, directly contradicting Reiman’s claims.  And lastly, Reiman concludes the book with some suggestions to make the criminal justice system minimally morally defensible.  What is interesting here is that Reiman abandons the materialistic critique that grounded the entire book to that point and instead justifies his policy recommendations based on an entirely different foundation, namely that of center-left liberalism.  He cites the likes of John Rawls and John Stuart Mill.  While Reiman applies this approach because he seeks only to suggest the minimum necessary moral reforms, not the best possible reforms, his abrupt abandonment of a materialist philosophy renders the basis for these suggestions incompatible with his overall critique rather than the good faith political compromise he intends it to be.  With the exception of the “gun control” position, which is not defensible, everything else is sort of unobjectionable, even if it comes across as kind of arbitrary as presented.

On the whole, this is a wonderful book.  It makes an essential introduction to the operation of the American criminal justice system, and provides a durable critique of its most fundamental moral flaws.

Daniel Denvir – Donald Trump’s Reactionary Mind

Link to an interview with Corey Robin, author of The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump (2017), conducted by Daniel Denvir:

“Donald Trump’s Reactionary Mind”

 

Bonus links: Liberalism: A Counter History and War and Revolution: Rethinking the Twentieth Century and The Theory of the Leisure Class and “The Left Hand and the Right Hand of the State” and “Slavoj Žižek on Law” and “Slavoj Žižek on Political Struggle”

Notice that basically all of the key points that Robin makes in the interview have already been made by others, going back over a hundred years.  But Robin does simplify a lot of this, for better or worse.  His most dubious claim is that the reactionary project began at the time of the French revolution.  Historical figures/movements like the opponents of the Gracchi tend to indicate this stretches back to classical antiquity, though perhaps not in an unbroken chain.