Law Commons^™

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of the recent …

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

Efficiency And Social Citizenship: Challenging The Neoliberal Attack On The Welfare State, Martha T. Mccluskey

Journal Articles

In the face of rising economic inequality and shrinking welfare protections, some scholars recently have revived interest in T.H. Marshall's theory of "social citizenship." That theory places economic rights alongside political and civil rights as fundamental to public well-being. But this social citizenship ideal stands against the prevailing neoliberal ("free market") ideology, which asserts that state abstention from economic protection generates societal well-being. Using the examples of AFDC and workers' compensation in the 1990s, I analyze how arguments about economic efficiency have worked to characterize social welfare programs as producers of public vice rather than public virtue. A close examination …