Law Commons^™

Climbing To 1011: Globalization, Digitization, Shareholder Capitalism And The Summits Of Contemporary Wealth, David A. Westbrook

Journal Articles

While we may find many sorts of inequality in the United States and elsewhere, this essay is about the specific form of inequality exemplified by Jeff Bezos or Bill Gates, that is, the Himalayan summits of contemporary wealth, mostly in the United States. Such wealth results from the confluence of three historical developments.

First, the social processes referred to under the rubric of “globalization” have created vast markets. A dominant position in such markets leads not only to great wealth, but the elimination of peers. Since there are few such markets, relatively significant wealth is possessed by very few people. …

The Law And Economics Of Redistribution, Matthew Dimick

Journal Articles

Should legal rules be used to redistribute income? Or should income taxation be the exclusive means for reducing income inequality? This article reviews the legal scholarship on this question. First, it traces how the most widely cited argument in favor of using taxes exclusively--Kaplow & Shavell's (1994) double-distortion argument--evolved from previous debates about whether legal rules could even be redistributive and whether law and economics should be concerned exclusively with efficiency or with distribution as well. Next, it surveys the responses to the double-distortion argument. These responses appear to have had only limited success in challenging the sturdy reputation of …

Models Of Other-Regarding Preferences And Redistribution, Matthew Dimick, David Rueda, Daniel Stegmueller

Journal Articles

Despite the increasing popularity of comparative work on other-regarding preferences, the implications of different models of altruism are not always fully understood. This article analyzes different theoretical approaches to altruism and explores what empirical conclusions we should draw from them, paying particular attention to models of redistribution preferences where inequality explicitly triggers other-regarding motives for redistribution. While the main contribution of this article is to clarify the conclusions of these models, we also illustrate the importance of their distinct implications by analyzing Western European data to compare among them. We draw on individual-level data from the European Social Survey fielded …

Should The Law Do Anything About Economic Inequality?, Matthew Dimick

Journal Articles

What should be done about rising income and wealth inequality? Should the design and adoption of legal rules take into account their effects on the distribution of income and wealth? Or should the tax-and-transfer system be the exclusive means to address concerns about inequality? A widely-held view argues for the latter: only the tax system, and not the legal system, should be used to redistribute income. While this argument comes in a variety of normative arguments and has support across the political spectrum, there is also a well-known law-and-economics version. This argument, known as the “double-distortion” argument, is simply stated. …

Personal Responsibility For Systemic Inequality, Martha T. Mccluskey

Contributions to Books

Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.

Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

When Caring Is Work: Home, Health, And The Invisible Workforce: Introduction, Dianne Avery, Martha T. Mccluskey

Buffalo Law Review

This essay introduces the SUNY Buffalo Law School 2012 James McCormick Mitchell Lecture. The Lecture featured distinguished scholars Hendrik Hartog, Jennifer Klein, and Peggie R. Smith, who each contributed an essay to this volume. These three scholars give a richly detailed picture of home caretakers' struggles to gain visibility and support for their important work. Legal rulings and policy choices have made care workers distinctly vulnerable, treating care services as an expression of love rather than contract (as Hartog describes), or as social rehabilitation for marginal citizens rather than as skilled health care provision (as Klein explains), or as informal …

From The Welfare State To The Militarized Market: Losing Choices, Controlling Losers, Martha T. Mccluskey

Contributions to Books

Published as Chapter 1 in Accumulating Insecurity: Violence and Dispossession in the Making of Everyday Life, Shelley Feldman, Charles Geisler & Gayatri A. Menon, eds.

Beneath a libertarian surface, free market economic ideas and policies have helped rationalize the strengthening of anti-democratic moral and political fundamentalism. The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres.

This chapter explains how a two-step rhetorical move in prevailing economic ideology turns authoritarianism and austerity into the route to freedom and growth. First, free market ideology constructs the increasingly limited and bad economic choices of a declining …

How Queer Theory Makes Neoliberalism Sexy, Martha T. Mccluskey

Contributions to Books

Published in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero, eds.

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private …

The Substantive Politics Of Formal Corporate Power, Martha T. Mccluskey

Buffalo Law Review

Corporations increasingly dominate the U.S. civil justice system, as Marc Galanter explains in his recent article, Planet of the APs: Reflections on the Scale of Law and its Users, 53 Buffalo L. Rev. 1369 (2006). My article builds on Galanter's discussion of corporate legal power by subjecting it to a critical legal perspective. In the conventional legal framework, corporations' privileged position appears to be an intractable puzzle, not an urgent injustice. That is because corporate power seems to be the generally necessary byproduct of a generally benign form (large, complex, legalistic organizations) or of generally benign, widely-shared normative principles (economic …