Introducing ClassCrits: From class blindness to a critical legal analysis of economic inequality

Buffalo Law Review

Volumn 56, Issue 4, 2008, Pages 859-913

  Mutua, Athena D ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 62449142415     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (182)

1. The University at Buffalo Law faculty has been a rich source of critical legal scholarship, including leadership in the original Critical Legal Studies movement as well as in race and gender critique and also on issues of economic class and labor. These include people such as James B. Atleson, Dianne Avery, Guyora Binder, Lucinda M. Finley, Alfred S. Konesfsky, Elizabeth Mensch, Teresa A. Miller, Frank W. Munger, Stephanie L. Phillips, Judy Scales-Trent, John Henry Schlegel, Robert J. Steinfeld, and past faculty members including Alan Freeman, Bob Gordon, Peter R. Pitegoff, et al. I would also like to thank the Baldy Center for Law and Social Policy for sponsoring these workshops and being a leader in promoting cutting edge scholarship. In this regard we would like to especially thank Lynn Mather, as well as the former dean, R. Nils Olsen.
2. Between 1979 and 2005, the top five percent of American families saw their real incomes increase eighty-one percent. Over the same period, the lowest-income fifth saw their real incomes decline one percent.
3. See U.S. Census Bureau, Historical Income Tables - Families, Tbl. F-1: Income Limits for Each Fifth and Top 5 Percent of Families (All Races): 1947 to 2007, http://www.census.gov/hhes/www/income/histinc/f01AR. html (last visited Nov. 17, 2008).
4. The richest one percent of U.S. households now owns 34.3 percent of the nation's private wealth, more than the combined wealth of the bottom ninety percent. LAWRENCE MISCHEL ET AL., THE STATE OF WORKING AMERICA 2006/2007, at 251 tbl.5.1 (2007).
5. The top one percent also owns 36.9 percent of all corporate stock. Id. at 264 fig.5F. Between 1979 and 2004, American workers raised their productivity sixty-four percent, while their median hourly compensation rose only twelve percent.
6. See id. at 147 fig.3N. Between 1949 and 1979, the inflation-adjusted average hourly wage for production workers rose seventy-five percent, from $9.00 to $15.78.
7. Id. at 119 tbl.3.3. Since 1979, the average production-worker wage has risen only two percent, from $15.78 to $16.11.
8. Id. All of the income gains in 2005 went to the top ten percent of households, while the bottom ninety percent of households saw income declines. LAWRENCE MISHEL & JARED BERNSTEIN, ECONOMIC POLICY INSTITUTE, RECENT INCOME GAINS WENT TO THOSE WITH HIGHEST INCOME, Mar. 28, 2007, http://www.epi.org/content.cfm/ webfeatures-snapshots-20070328.
9. There is rising concern about economic inequality in the U.S. as the following articles demonstrate. See, e.g., JANET YELLEN, PRESIDENT & C.E.O, FED. RESERVE BANK OF S.F., SPEECH AT THE UNIVERSITY OF CALIFORNIA CENTER FOR THE STUDY OF DEMOCRACY: ECONOMIC INEQUALITY IN THE UNITED STATES (Nov. 6, 2006), available at http://www.frbsf.org/news/ speeches/2006/061106.pdf;
10. Greg Ip, Income-Inequality Gap Widens, WALL ST. J., Oct. 12, 2007, at A2;
11. Roger Lowenstein, The Inequality Conundrum, N.Y. TIMES MAG., June 10, 2007, at 11. However, the last two article focus on income. They do not focus on wealth or wages. There are also new books that are looking at these issues.
12. See, e.g., MICHAEL J. THOMPSON, THE POLITICS OF INEQUALITY: A POLITICAL HISTORY OF THE IDEA OF ECONOMIC INEQUALITY IN AMERICA (2007);
13. Bill Moyers, The Fight of Our Lives, in INEQUALITY MATTERS: THE GROWING ECONOMIC DIVIDE IN AMERICA AND ITS POISONOUS CONSEQUENCES (James Lardner & David Smith eds., 2005);
14. MOBILITY AND INEQUALITY: FRONTIERS OF RESEARCH IN SOCIOLOGY AND ECONOMICS (Stephen Morgan et al. eds., 2006).
15. ClassCrits Workshop Call for Participation, Baldy Center for Law and Social Justice, (Apr. 6, 2007), http://ClassCrits.wordpress.com/2007/04/06/ ClassCrits-workshop-call-for-participation.html. This posting contains the original description of the ClassCrits concept.
16. Id.
17. I have placed the term "market" in quotes in this section of the paper to highlight its contestability. That is, the market as currently discussed can be seen as simply a sphere that is alienated from the larger economy. The larger economy can be seen as a system through which "people cooperate to provide for their daily and future needs combined with the techniques and materials at their disposal." Sue Ferguson, Building on the Strengths of the Socialist Feminist Tradition, 7 NEW POLITICS 26 (1999)
18. (citing Pat Armstrong & Hugh Armstrong, Beyond Sexless Class and Classless Sex: Towards Feminist Marxism, in STUDIES IN POLITICAL ECONOMY: DEVELOPMENTS IN FEMINISM (Caroline Andrew et al. eds., 2003)). The market, Ferguson suggests by contrast, referring to it interchangeably as the market or the formal economy, is a "sphere of exchange cut off from the acts of production/reproduction [that ground it and] obscure [] that reality ⋯."
19. Id. at 4. She explains: The domination of the market is unique to capitalism ⋯. Rather than understanding [it] as the historical and human organization it is, political economists reify it, imbuing it with a dynamic (the laws of supply and demand) apparently devoid of human relations. This is what Marx identified as the fetishization of commodities and the market, and his critique of political economy is, in fact, an effort at defetishization-that is, an attempt to reveal the social reality behind this narrowly construed economy.
20. Id.
21. The "market" is complex and because it includes millions of participants, it is unwieldy and difficult to even influence, let alone control. However, unlike water, its very formation and structure is built on past human action, and its operation requires humans to participate, to agree upon its rules, to agree to trade, or at least to acquiesce to its valuations, conditions, etc., functions that may implicate law.
22. This sentence is meant to convey two different ideas. One is that the people do not need to intend to participate in or create a market to do so. In this sense, if they simply trade in goods, or go along with the ways in which society is already structured, they will in fact participate. They will have little choice, generally, if they want to eat, have a home, and buy clothes. In this sense the market can and does operate and reproduce itself without the active intention of individuals or even groups. Further, because it includes so many people, a push here may result in a pull there, nullifying the intentional push first initiated. On the other hand, the "market" does not operate and reproduce without humans and human activity. It is dependent on that activity, and as such can be influenced by it. Further, humans acting in concert with others can and do influence the "market" and decide its boundaries, application, and content.
23. ClassCrits Workshop Call for Participation, supra note 3.
24. Id.
25. The two workshops each consisted of approximately twenty participants drawn from the legal academy. Each participant submitted a three-to-five page "thought-piece" in preparation for the workshop on the topic of law and economic inequality. Many of the essays in this collection represent expanded versions of these "thought-pieces." Not all of those who attended the workshop have essays in this collection. Nevertheless their comments and contributions may be noted in this introduction. The participants were: Frances Ansley, University of Tennessee College of Law, Susan Carle, American University Washington College of Law, Kenneth Casebeer, University of Miami School of Law, Sumi Cho, DePaul University College of Law, Anthony Farley, Boston College Law School, Martha Fineman, Emory Law School, James Gathii, Albany Law School, Angela Harris, U.C. Berkeley School of Law, Laura Kessler, University of Utah, S.J. Quinney College of Law, Martha Mahoney, University of Miami School of Law, Audrey McFarlane, University of Baltimore School of Law, Frank Munger, New York Law School, Jim Pope, Rutgers School of Law, Daria Roithmayr, University of Southern California Law School, Donna Young, Albany Law School, and many University at Buffalo Law School faculty members.
26. A collapse only avoided by huge governmental rescue plans, which infused the world economy with "taxpayer" cash. See David Leonhardt, Perhaps, Time to Play Offense, N.Y. TIMES, Sept. 17, 2008, at A1;
27. Andy Serwer & Allan Sloan, The Price of Greed, TIME, Sept. 29, 2008, at 32.
28. For a discussion on the Critical Legal Studies (CLS) movement, see, e.g., CRITICAL LEGAL STUDIES (Jones Boyle ed., 1992) and
29. Mark Tushnet, Critical Legal Studies: A Political History, 100 YALE L.J. 1515 (1991).
30. See also THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (David Kauris ed., 3d ed. 1998) (providing a good overview of Critical Legal Studies themes).
31. For a discussion of critical feminist theory, see, e.g., Deborah L. Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617 (1990).
32. The literature in this field is vast in part because feminist theory itself is a critical tradition. To begin to get a grasp of field, see generally MARTHA CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY (1999);
33. NANCY LEVIT & ROBERT VERCHICK, FEMINIST LEGAL THEORY: A PRIMER (2006);
34. JOSEPHINE DONOVAN, FEMINIST THEORY: THE INTELLECTUAL TRADITIONS (2000);
35. CAROLE R. MCCANN & SEUNG- KYUNG KIM, FEMINIST THEORY READER: LOCAL AND GLOBAL PERSPECTIVES (2003);
36. PATRICIA HILL COLLINS, BLACK FEMINIST THOUGHT (2000);
37. REINA LEWIS, FEMINIST POSTCOLONIAL THEORY: A READER (2003);
38. ADRIEN K. WING, CRITCAL RACE FEMINISM: A READER (2003);
39. GABRIELA F. ARREDONDO & NORMA KLAHN, CHICANA FEMINISM: A CRITICAL READER (2003).
40. For a discussion of the development of critical race theory, see, e.g., Athena D. Mutua, The Rise, Development and Future Directions of Critical Race Theory, 84 DENV. U. L. REV. 329 (2006).
41. For basic themes and key early works see, e.g., RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION (2001);
42. and CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., 1995).
43. LatCrit literature is readily available at the LatCrit Web site. See Latina and Latino Critical Theory, Inc., http://www.latcrit.org (last visited Nov. 24, 2008) (listing, inter alia, seventeen colloquia and symposia on LatCrit among other work).
44. See generally, THE LATINO/A CONDITION: A CRITICAL READER (Richard Delgado & Jean Stefancic eds., 1998).
45. NIKKI SULLIVAN, A CRITICAL INTRODUCTION TO QUEER THEORY (2003);
46. JUDITH BUTLER, UNDOING GENDER (2004);
47. MAX H. KIRSCH, QUEER THEORY AND SOCIAL CHANGE (2000);
48. LGBT STUDIES AND QUEER THEORY: NEW CONFLICTS, COLLABORATIONS, and CONTESTED TERRAIN (Karen E. Lovaas, John P. Elia & Gust A. Yep eds., 2006);
49. Laurie Rose Kepros, Queer Theory: Weed or Seed in the Garden of Legal Theory?, 9 LAW & SEXUALITY REV. 279 (2000);
50. Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 3 (1995).
51. Mutua, supra note 14, at 343-45.
52. Id.
53. Critical Legal Studies was in part grounded in a Marxist, or critical Marxist, approach. Thus, though this methodology of revealing hidden choices seems consistent with analyses counseled in Marxism, it was likely drawn from it. See Alan Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (presenting an example of what appears to be a critical Marxist approach in CLS).
54. Martha McCluskey, Thought Piece (undated) (unpublished manuscript submitted to ClassCrits Workshop, Baldy Center for Law & Social Policy) (on file with author).
55. So, for instance, our current continuing dependence on oil may best reflect the interests of oil companies rather than the desires of the American people. See, e.g., John M. Broder & Marjorie Connelly, Public Says Warming Is a Problem, but Remains Split on Response, N.Y. TIMES, Apr. 27, 2007, at A20 (citing a survey that found "broad" support for alternative energy sources such as ethanol or solar power to reduce dependence on oil).
56. This point about the reification of the market is important because such reification of the market obscures the human activity, decision-making and relations that underlie it. In this sense, reification performs a similar move that law does. Law camouflages the ways in which legal decision-makers make political choices even as their decisions are constrained by past human decisions and activity and the reasoning they employ. Additionally this point is important because in obscuring the underlying human relations it obscures the fact, as Sue Ferguson makes clear, that the market is dependent on these underlying relations in many forms and in particular is dependent on the home and communities that reproduce labor daily and inter-generationally. Said differently, the market does not produce the labor on which it depends, rather, it must rely on families and communities to produce this. In this sense conceiving of the economy as including households, communities/civil society, and governments, and the reproduction of them both in their human and institutional forms, rather than being just the "market," makes the concept of the economy holistic and coherent. Further, while a reified market facilitates the privileging of profit making, while obscuring the people that benefit from it along with the decisions that facilitate that profit making, a holistic view of the economy centers the goal of human sustainability. See Ferguson, supra note 5.
57. Id. (discussing the "social reproduction theory" and quoting Armstrong & Armstrong, supra note 5). Ferguson in this article suggests two primary goals and opportunities that social reproduction theory might provide. First, it potentially explains the materialist foundations of patriarchy and sexism. Here she suggests the theory implies that the division of labor arises because communities of women and men share attempts to provide for their sustenance and that of their children, building upon their different biological reproductive capacities. I would argue here, that systems of domination did not need to arise upon these divisions but they often did. Further, these labor divisions are culturally and community organized such that different cultures assign different rules to the sexes. For instance, part of the roles and duties assigned to Masaai women in Kenya is that of thatching roofs, but thatching roofs is decidedly a male role in the nearby ethnic group of the Kenyan Kikuyu.
58. See SAFEGUARDING THE GAINS FOR WOMEN UNDER THE DRAFT CONSTITUTION: TRAINING MANUAL (Fed'n of Women Lawyers (Kenya), Inst. for Educ. and Democracy, Kenya Human Rights Comm'n, & The League of Kenya Women Voters eds., 2003). Second, Ferguson suggests that social reproduction theory, if further developed, might provide an "integrated" material theory of capitalism, patriarchy and racism. She criticizes dual (or multiple) theory analysis of racism, patriarchy, and capitalism, which understands these as separate systems intersecting and shaping one another. Instead she argues that there is one system, complicated, complex, and manifesting sometimes contradictory impulses, but one system all the same. I am not sure that the difference between an integrated theory and a theory of multiple intersecting systems is of great consequence. For instance, I tend to think of law as a semi-autonomous system within a single society and system. For me it is not a great leap to think of patriarchy, racism, and capitalism as separate systems with semi-autonomous dynamics within current societies. There is something to be said, however, for an integrated theory which suggests that, for instance, while patriarchy predates capitalism, capitalism reshaped this dynamic, separating male labor from the home, and rendering the home a place for women's invisible and subordinated labor. In this sense capitalism at its inception is both capitalistic and patriarchal. At the same time, it seems to me that family and kinship relationships lay at the bottom of ethnic communities which later group and regroup often by force to form ethnocentric nation-like formations and that these predate "races." But capitalism, in part creates "races" and racism based upon the coercive economic relations of slavery and colonialism between these previously existing ethnocentric nation-like formations (with different-looking human bodies) at the beginning of capitalism and the Age of Europe. These conditions in part contribute to the development of racism (both materially and culturally) and contribute to the racist, gendered capitalist states that we see today. I believe that scholars such as bell hooks who talk about the "white supremacist capitalist patriarchy" are seeking to convey the idea that there is one system with various and sometimes contradictory aspects.
59. See BELL HOOKS, KILLING RAGE: ENDING RACISM 78 (1995).
60. Ferguson, supra note 5.
61. Richard Delgado, Crossroads and Blind Alleys: A Critical Examination of Recent Writings About Race, Crossroad, Directions, and a New Critical Race Theory, 82 TEX. L. REV. 121, 123 (2003).
62. See infra Part III on intersectionality.
63. Here the idea is that law may or may not initially formulate a statement encouraging blindness as the appropriate frame, but once blindness is framed, the law generally through a neutral, sameness standard influences and continues to shape the blindness frame. So for example, the color blindness frame, in the modern era, may well have arisen from society and garnered support from a reading of Martin Luther King's reference to the aspiration that his kids might one day be judged by the content of their characters rather than the color of their skin. But law has worked to cement that frame and further define it in a way that allows courts and legislatures to ignore the ways in which society has structured racial privilege and subordination in very observable ways, such as in residential and, as a result, school segregation. Take for instance, the majority's decision in Parents Involved in Community Schs. v. Seattle Sch. Dist. #1, 127 S. Ct. 2738, 2768-69 (2007), in which the Court carefully parses the distinction between de jure and de facto discrimination as a basis for rejecting the use of race as a remedy of past discrimination and thereby ignores the fact that current school segregation is built on the continuation of past residential segregation, as detailed in Justice Breyer's dissent. Note that this careful parsing of de jure and de facto segregation is not matched by the equally careful parsing of the distinctions between "odious" and "benign" discrimination.
64. Although I refer to this group as "affluent" or "wealthy," my focus is really on those who control the wealth of the nation through, as Michael Zweig notes, controlling the few thousand largest corporations. Michael Zweig, Introduction: The Challenge of Working Class Studies, in WHAT'S CLASS GOT TO DO WITH IT?: AMERICAN SOCIETY IN THE TWENTY- FIRST CENTURY 1, 5 (Michael Zweig ed., 2004). He makes a distinction between the rich and those who control industry and finance, explaining that when Vice President Cheney invited a select group to help him formulate the U.S. energy policy he did not invite "rich" people but those who controlled far more than their personal wealth. People were invited because they controlled industries and such people only account for about two percent of the U.S. labor force.
65. Athena D. Mutua, Theorizing Progressive Black Masculinities, in PROGRESSIVE BLACK MASCULINITIES 16 (Athena D. Mutua ed., 2006). As Hannah Arendt notes: Power corresponds to the human ability not just to act but to act in concert. Power is never the property of an individual; it belongs to a group and remains in existence only so long as the group keeps together. When we say of somebody that he is "in power" we actually refer to his being empowered by a certain number of people to act in their name. The moment the group, from which the power originated to begin with ⋯ disappears, "his power" also vanished. HANNAH ARENDT, ON VIOLENCE 44 (1970).
66. See Tracy E. Higgins, Job Segregation, Gender Blindness, and Employee Agency, 55 ME. L. REV. 241 (2003);
67. Michael R. Evans, The Case for All-Female Health Clubs: Creating a Compensatory Purpose Exception to State Public Accommodation Laws, 11 YALE J.L. & FEMINISM 307, 323-29 (1999);
68. Lucinda M. Finley, Sex-Blind, Separate But Equal, or Anti-Subordination?: The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089 (1996).
69. See, e.g., Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873) (holding that Illinois had properly exercised power to bar married women from the practice of law).
70. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987), at ch. 2 (Difference and Dominance: On Sex Discrimination) (discussing the sameness and difference approaches to sex equality law, which, she argues, reinforces the male norm and male dominance, and rarely addresses the most serious problems that confront women. She advocates for a dominance approach.).
71. Presumably both women and men require birth control when they are sexually active but do not want to have children. But because society is structured in a way that assigns childcare to women, women are perceived as needing birth control and men are not. Also many insurance companies provide coverage for Viagra, a medicine for men with erectile dysfunction, but do not provide coverage to women to control their ability to give birth.
72. Equal Employment Opportunity Commission v. Sears Roebuck & Co., 628 F. Supp. 1264 (N.D. Ill. 1986) (hiring and promotion policy was not discriminatory because women were not as interested in the higher-paid commission sales positions due to competitive environment and because evening hours would conflict with family obligations).
73. See, e.g., Scott Coltrane, Theorizing Masculinities in Contemporary Social Science, in THEORIZING M ASCULINITIES 39, 42 (Harry Brod & Michael Kaufman eds., 1994) (discussing, among other things, the development of Masculinities Studies based in part on feminist thinking).
74. Mutua, supra note 14, at 334.
75. Mutua, supra note 14, at 334, 359.
76. See also Neil Gotanda, A Critique of "Our Constitution is Colorblind," 44 STAN. L. REV. 1 (1991);
77. DELGADO & STEPANCIC, supra note 14, at 21-22;
78. MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR BLIND SOCIETY (2003);
79. EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES (2006).
80. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 201-02 (1995) (holding that racial classifications must be reviewed under the "strict scrutiny" standard, whether imposed by federal, state, or local government and noting that "[A]ll governmental action based on race-a group classification long recognized as in most circumstances irrelevant and therefore prohibited-should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed.").
81. But see Grutter v. Bollinger, 539 U.S. 306, 331 (2003) (noting that "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause ⋯ that strict scrutiny must take 'relevant differences' into account ⋯ that [n]ot every decision influenced by race is equally objectionable," and thus allowing race to be taken into consideration as a factor in admissions for the purposes of diversity in the higher education context).
82. Mutua, supra note 14 at 335-36.
83. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1768-69 (1993) (colorblind theory disconnects notions of race from historical practice and meaning).
84. See generally THOMAS M. SHAPIRO, THE HIDDEN COST OF BEING AFRICAN-A MERICAN: HOW WEALTH PERPETUATES INEQUALITY 9 (2004) (noting that despite presumed successes of civil rights movement and trend toward color-blindness, "Similar achievements by people of similar abilities often do not yield comparable results.").
85. See, e.g., Wygant v. Jackson Bd. of Educ, 476 U.S. 267 (1986) (race-based layoff clause in collective bargaining agreement violated Equal Protection Clause).
86. Mutua, supra note 14, at 334. In fact I argue Supreme Court decisions that operate in this way were meant to protect white people by claiming they were innocent (lacking intent) at the expense of justice for black individuals.
87. See id. Finley makes a similar claim. Finley, supra note 30.
88. See Daria Eoithmayr, Policy, Politics & Praxis: Deconstructing the Distinction Between Bias and Merit, 85 CAL. L. REV. 1450, 1452 (1997) ("[M]erit standards disproportionately exclude people of color and women because the standards historically have been developed by members of dominant groups in ways that end up favoring them.").
89. These resources might include such things as a good education, a healthy educational and living environment, and resume-building opportunities.
90. Except that some whites do not have access to these resources because of their class; they are poor.
91. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (in which the Supreme Court struck down a city plan that required city contracts to subcontract thirty percent of the contract's value to businesses owned by minorities. The plan was based upon findings that there was racial discrimination in the industry, that minorities received less than one percent of public contracting even though they constituted almost fifty percent of the population, that there were almost no minority contractors in city and state associations, and that a congressional study had found that past discrimination had stifled minority participation in the construction industry nationally.) Individualistic colorblindness apparently dictated that this history be ignored, or that it was irrelevant, or that, in any event, it could not be remedied.
92. See, e.g., McCleskey v. Kemp, 481 U.S. 279 (1987) (involving a Georgia sentencing system in which the Supreme Court rejected the use of the statistical reports to document discriminatory effect in the absence of proof of intentional discrimination).
93. See, e.g., Richard Delgado & Jean Stefancic, Introduction, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR xvii-xviii (Richard Delgado & Jean Stefancic, 1997) on the development of critical white studies.
94. See, e.g., Karl Klare, The Horizons of Transformative Labour & Employment Law, in LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES & POSSIBILITIES 3, 3-29 (Karl Klare et al. eds., 2002).
95. See, e.g., ANGELA P. HARRIS & EMMA COLEMAN JORDAN, ECONOMIC JUSTICE: RACE, GENDER, IDENTITY AND ECONOMICS (2006);
96. ANGELA P. HARRIS & EMMA COLEMAN JORDAN, A WOMAN'S PLACE IS IN THE MARKETPLACE: GENDER AND ECONOMICS (2006).
97. See infra discussion accompanying notes 89-103.
98. See, e.g., Thomas Ross, The Rhetoric of Poverty: Their Immorality, Our Helplessness, 79 GEO. L.J. 1499 (1991).
99. While there are differences between gender and color structures, people often feel that there are significant differences between these and class differences. First, class is not an "immutable" trait. While the idea of assigning immutability to race and gender constructs is problematic because features of these constructs change, class is clearly mutable and people can move from one economic status to another. I do not address these here. My central point is that the factors that shape and determine race, gender, or class are often ignored.
100. By "relevant" I mean to question whether financial power, standing, or ability should be taken into account. Obviously these observations are general. For instance, the way we organize the tax code takes into account economic differences. However, as I attempt to demonstrate in my discussion of the 2008 presidential election, even the organization of the tax code has been challenged by our dominant ideology. I thank Stuart Lazar for reminding me of this.
101. See Erik Olin Wright, Foundations of a Neo-Marxist Class Analysis, in APPROACHES TO CLASS ANALYSIS 4, 4-21 (Erik Olin Wright ed., 2005) (discussing the different classes in America and in some ways describing the working class in these terms).
102. See Michael Kimmel, Toward a Pedagogy of the Oppressor, in PROGRESSIVE BLACK MASCULINITIES, supra note 29, at 63, 68 (discussing how the wealthy often downplay their wealth and appear and act like the middle class while the poor or working class dress toward their aspiration of middle or upper class-ness).
103. So for example, some have accused President Obama of engaging in class warfare in his campaign pledge to lower taxes for the middle class and implicitly to raise taxes for the wealthy-those making over $250,000 in income. But acts such as banks advocating for Congress to tighten the rules governing the declaration of bankruptcy for everyday people (or workers) are rarely seen as acts of class warfare.
104. But see Elizabeth Warren, Vanishing Middle Class, in ENDING POVERTY IN AMERICA: HOW TO RESTORE THE AMERICAN DREAM 38 (John Edwards, Marion Crain & Arne L. Kallberg eds., 2007).
105. Mutua, supra note 14, at 386-87.
106. In popular culture, the financial sector was referred to as Wall Street while the problems of average Americans were referred to as problems of Main Street. The point here is that help to the affluent always seems forthcoming because their welfare is viewed as vital to the country while the welfare of average Americans-the working class perhaps-is at best secondary. Thus help to them is viewed as debatable and ultimately destructive to the system. Similar insights are garnered from an analysis of the assumption of "trickle-down economic theory. See sources supra note 11.
107. See generally Ross, supra note 52.
108. San Antonio v. Rodriguez, 411 U.S. 1 (1973) (holding that a Texas local property tax system that financed public schools and resulted in fewer educational resources for children residing in districts with lower property values did not violate the equal protection clause).
109. See Donald Judges, Bayonets for the Wounded: Constitutional Paradigms and Disadvantaged Neighborhoods, 19 HASTINGS CONST. L.Q. 599, 604-05 (1992) (describing the Rodriguez case as the "Dred Scott decision for the underclass");
110. JONATHAN KOZOL, SAVAGE INEQUALITIES 223-229 (1991) (describing the children attending the San Antonio schools featured in the Rodriguez case as still poor and continuing to attend separate and unequal schools twenty-three years after the decision). In future work, I hope to write a socio-legal historical narrative about the development and operation of class blindness. The narrative would center Supreme Court cases and explore the Court's role over time in the development of the rights of the corporation, the limits on workers' rights and the treatment of the poor.
111. The middle class is not so much hidden as it is normative. In fact the middle class is very visible. What is hidden is what it includes and the ways in which those classes that are included might be in conflict. And finally, if the middle class is the norm and normal, what in the world is wrong with the poor?
112. Here Cheney's connections with Halliburton and Blackwater come to mind, as do President Bush's connection with oil.
113. The government rescue package (put forth with the overwhelming support of Democrats) with its minimum control over executive pay seemed to be further evidence of this class' influence. See sources supra note 11.
114. Martha T. McCluskey, The Substantive Politics of Formal Corporate Power, 53 BUFF. L. REV. 1453 (2006).
115. See also Martha T. McCluskey, Thinking with Wolves: Left Legal Theory After the Right's Rise, 54 BUFF. L. REV. 1191, 1212-28 (2007).
116. Martha T. McCluskey, Constitutionalizing Class Inequality: Due Process in State Farm, 56 BUFF. L. REV. 1037 (2008).
117. State Farm Mut. Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003). State Farm challenged the imposition of punitive damages awarded to insurance policy holders for State Farm's systematic violations of their contractual rights. The Supreme Court overturned the award, limiting it.
118. See generally McCluskey, supra note 66.
119. See McCluskey, supra note 66, at 1037.
120. McCluskey Thought Piece, supra note 20. Specifically McCluskey argues that this theory justifies and whitewashes economic inequality and subordination and it does so by employing what she called a master narrative. This narrative juxtaposed "economics" or "efficiency" (meant to mean a growing economic pie) or some other economic concept against some policy meant to bring about equality, justice, or fairness. The narrative then delivered a three-part message meant to diminish and discredit efforts geared toward bringing about justice, equality, or fairness.
121. See McCluskey, supra note 20.
122. Id.
123. Id.
124. Mutua, supra note 14, at 379.
125. Id.
126. Delgado, supra note 25, at 123 (reviewing DERRICK BELL, ETHICAL AMBITION: LIVING A LIFE OF MEANING AND WORTH (2002)).
127. Delgado discusses many of Bell's earlier works in this piece, including DERRICK BELL, RACE, RACISM, and AMERICAN LAW (4th ed. 2000)
128. and Derrick Bell, Racial Realism, 24 CONN. L. REV. 363 (1992).
129. I have also suggested that a critical class analysis might have something important to say about the modern social economic processes which over the last several years have shaped segmented joblessness and stagnating wages for the overwhelming majority of the population, which has occurred in the face of increasing productivity, a growing economy, staggering profits, and incomprehensible executive pay as mediated by the corporation and justified by an array of people institutionally and otherwise placed. Mutua, supra note 14, at 389.
130. Mutua, supra note 14, at 389.
131. I thank Martha McCluskey for this insight.
132. Martha R. Mahoney, Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases, 76 S. CAL. L. REV. 799, 845 (2003).
133. Fineman, supra note 20. Her position was in some ways pragmatic in that equality is universal and individualistic and in this way mirrors American law's protection of individual groups. But equality, she also argued, did not divide groups into opposing sides even if the reality reflected opposing sides with unequal power.
134. Id. Fineman notes: In ⋯ exploring equality in the context of balancing against other values, I think we must begin the hard work of constructing in and for the American context a viable and credible alternative concept of equality, moving beyond a formal to a more substantive fore. The project here is to shift the frame from autonomy back onto a focus on equality. This framing process is not only descriptive, it is normative; a way to give a different meaning to a series of issues and help redefine them in a more progressive manner. If the frame were equality rather than autonomy, then perhaps our first question would not be how we can define equality in terms that are consistent with the dictates of autonomy (the individual perspective). Instead, we might pursue how society must ensure autonomy as a basic guarantee, a foundation necessary for and consistent with our primary commitment to equality (an inclusive perspective).
135. Id.
136. Id. Fineman's thoughts in many ways make clearer the areas on which all the participants appeared to agree. First, Fineman's use of the terms "equality," "discrimination," even "autonomy," targeted a group of lawyers whose central strength was likely to be in exposing the way in which law shapes, structures, and legitimizes, in economic terms, the current or alternative patterns of production and allocation of resources. Second, given that economic inequality is brought about through the way in which society organizes the production and allocation of material resources, the group was interested in both context and choice. That is, the participants were interested in a substantive structural view of economics and economic inequality that would expose collective structures, coercion, and interests, in addition to intention and choice. Third, they were interested in the role economic privilege and power plays in economic inequality both in determining certain patterns (of production and allocation) and in blocking alternatives.
137. Athena D. Mutua, Restoring Justice to Civil Rights Movement Activists?: New Historiography and the "Long Civil Rights Era" (2008), available at http://works.bepress.com/Athena-Mutua/l (suggesting that liberalism encompasses these three ideas: political democracy, individualism, and a commitment to a market economy).
138. Wright, supra note 55, at 6.
139. Erik Olin Wright, in providing a stripped down overview of Marxist normative commitments, explains three theses. These are in unqualified form: 1) Radical Egalitarian thesis: Human flourishing would be broadly enhanced by a radically egalitarian distribution of the material conditions of life ⋯. 2) Historical possibility thesis: Under conditions of a highly productive economy, it becomes materially possible to organize society in such a way that there is a sustainable radically egalitarian distribution of the material conditions of life ⋯. 3) Anti-capitalism thesis: Capitalism blocks the possibility of achieving a radically egalitarian distribution of the material conditions of life. Wright, supra note 55, at 6-7. He then notes the standard response to these theses; He says: Against the radical Egalitarianism thesis two sorts of arguments are frequently raised; First, even if it is true that equality promotes human flourishing, the redistribution of resources needed for material equality is unjust since it deprives some people of material advantages which they have rightfully acquired; and second, far from creating conditions for a flourishing of human potential, radical material equality would generate passivity, laziness, and uniformity.
140. Id. at 8 n.6.
141. I thank Makau Mutua for this insight. Said differently, this sentiment rejects the idea that actions of the economically powerful are pre-determined even if they are pre-disposed to act in certain ways.
142. See generally Mutua, supra note 14.
143. It was eventually decided that the very next gathering would be a conference that took an interdisciplinary approach and which would invite scholars across a range of fields to participate. Some folks were particularly interested in involving progressive economists. And the group committed to drawing on the wealth of material out there on class.
144. Frances Ansley, Thought Piece (undated) (unpublished manuscript submitted to ClassCrits Workshop, Baldy Center for Law & Social Policy) (on file with author).
145. Frank Munger, Thought Piece (undated) (unpublished manuscript submitted to ClassCrits Workshop, Baldy Center for Law & Social Policy) (on file with author).
146. For instance, although labor law can be, and often is, discussed in terms of employer/employee relations without any significant reference to or theories about class relations, the labor law scholar's present emphasized relational class arguments that in part structure labor relations. See Kenneth Casebeer, Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami, 56 BUFF. L. REV. 1061 (2008);
147. James Pope, Class Conflicts of Law I: Unilateral Worker Law making versus Unilateral Employer Lawmaking in the U.S. Workplace, 56 BUFF. L. EEV. 1097 (2008). Others engaged Marxian/Weberian relational understanding of class analysis more directly;
148. see, e.g., Anthony Farley, The Colorline as Capitalist Accumulation, 56 BUFF. L. REV. 955 (2008); while others drew from a variety of other class theorists such as Bourdieu;
149. see, e.g., Lucille Jewel, Bourdieu and American Legal Education: How Law Schools Reproduce Social Stratification and Class Hierarchy, 56 BUFF. L. REV. 1157 (2008);
150. Martha Mahoney, supra note 75.
151. See Mahoney, supra note 75, at 799.
152. Id.
153. Munger, supra note 88. This is so even though it is readily believed that the economy, and particularly the global economy, implicates the interconnectedness, relatedness and dependence of one country to another, demand for oil in China relates to and impacts the supply, demand, and price of oil in the United States-or the wealth of one is related to and dependent on the poverty of others, albeit in a complex and shifting sort of way.
154. Id.
155. Id. (emphasis added).
156. Wright, Foundations of a Neo-Marxist Class Analysis, supra note 55, at 23-28 (discussing the similarities and differences between Marxist and Weberian class analyses).
157. Id.
158. This is my interpretation of Wright.
159. Rights and powers over material resources relate to the relative control an individual or group has over that resource. See Wright, supra note 55, at 26-30.
160. See id.
161. Id. at 22.
162. Id. at 26-30. At the same time those with the rights and powers to control material resources and to yield such resources productive or profitable-the owners of capital-have an objective interest in ensuring that some portion of the population remains vulnerable to some level of material deprivation in order to ensure those so vulnerable will provide the labor they need to render the resources they control productive. In other words, they hope to ensure that there are people available to work. In addition, they have an interest in accumulating as much of the material resources as possible-the more they have, the more they can put to productive use for profit. At the same time, the more they accumulate the more they may be able to further deprive additional others of those same resources. In doing, so they make larger pools of people vulnerable and in need of work. These are elite class interests.
163. See, e.g., JONATHAN R. MACEY, GEOFFREY P. MILLER, RICHARD S. CARNELL, BANKING LAW AND REGULATION (2001) (providing a historical overview of banking law and discussing the debate between Alexander Hamilton and Thomas Jefferson over the establishment of a national bank and noting that Jefferson feared the concentration of economic power and viewed all corporations as problematic).
164. See also NOBLE E. CUNNINGHAM, THOMAS JEFFERSON VERSUS ALEXANDER HAMILTON: CONFRONTATIONS THAT SHAPED A NATION (2000).
165. These are not the only class relations that exist in a society like the United States. For example, there exist huge pools of vulnerable people who do not have work. While their relations with other classes are structured around their exclusion from controlling material resources, they have little power to bargain over work, although they can disrupt work and the society as a whole through, for instance, riots. At the same time, the production of goods and services is not the only way to make a profit; one can be a lender of money, a lender of resources, which will allow for profit making. Financiers, a part of the capitalist class, are particularly important in modern society. And then, there are still others, workers with specialized skills and managers and consumption patterns around education, for instance, that yield these positions. These are all part of the complex class structures, among others, that currently exist and around which sets of complex rules and laws have emerged both producing and structuring these relations. Wright, supra note 55, at 26-30.
166. Mahoney, supra note 75, at 829. Here Mahoney argues that law dresses many of the class cases up as race cases. On agency she notes: "The lack of a language of class, the status/stratification concept of inequality, and the dynamics of racial privilege and subordination are all important to the ways Americans understand themselves and each other."
167. Id at 829. "Class" is generally invisible in American legal discourse. The term is used constantly ("class action," "classification") in reference to issues other than social and economic inequality and power. When used in law with regard to economic inequality, the term usually refers to gradational rather than relational concepts. Legal discussions of structural inequality seldom use the term "class," instead discussing "race," "poverty," "employee," or 'labor," none of which adequately replaces the concept of class. In different ways, each of these terms addresses some questions of power, but none directly addresses the relationships of power between social groups. Since law more easily recognizes race and gender rather than class issues, the need to shape legally cognizable claims has also tended to diminish consciousness of and arguments about class. Recent proposals to use "class" instead of race as the basis for affirmative action have not explored the meaning of class in any relational sense and in reality concern more or less elaborated status-based criteria.
168. Id. at 842-43.
169. Id. (citing E.P. THOMPSON, MAKING HISTORY: WRITINGS ON HISTORY AND CULTURE 222 (1994). Kenneth Casebeer agrees, in part, noting that because in part "of the need to legitimate particular social relations, from fashions to family life, many cultural assumptions and instrumental social actions contribute to class distinctions." Kenneth Casebeer, Thought Piece (undated) (unpublished manuscript submitted to ClassCrits Workshop, Baldy Center for Law & Social Policy) (on file with author).
170. Here I am positing that sexuality is more closely related to gender than to racism or class oppression, drawing on Harry Brod & Michael Kaufman, Introduction, in THEORIZING MASCULINITIES, supra note 36, at 5.
171. See also Mutua, supra note 29, at 12-16 (on the sex gender system and masculine socialization).
172. For instance, the black middle class (from an income status perspective) is significantly less wealthy than not only the white middle class, but generally have less wealth than the white working class. See, e.g., MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 8 (1995) (describing a difference in financial assets of $25,794 when a black household has the same educational and occupational attributes as the average white household);
173. see generally DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993).
174. Again, much is written about the way in which law often operates in a manner that supports patriarchy and diminishes the needs, bodies, lives, and opportunities of women. However, not only are all men privileged by gender relations, but elite men are vastly disproportionately privileged by this system. This is so because they control productive material resources and can rely on systems that undervalue women's labor in the workplace and therefore render them a cheaper labor pool. Further, the mass reproduction of human capital and labor on which elite organized production is dependant can be had without being responsive to or in any significant way responsible for supporting that reproduction and production. So while all men benefit, elite men (and sometimes women) with access and power over productive resources benefit the most.
175. William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 16 (1999).
176. Id.
177. And even then there are only really two such statuses worth discussing, the middle class (really status) and the underclass, both of which are racialized; the middle class is white and the underclass is black or Latino. See Mahoney, supra note 75, at 829.
178. Martha Mahoney notes: The process of "making class" involves agency and cultural and economic relationships. In "making class," therefore, white privilege is crucially important. If class is "a happening," not "a thing," then the very "happening" of class is shaped by both conscious and unconscious white choices. Since whiteness is also an interaction between the material world and our experience of it, class interest is one of the most important ways in which shared identity can affect the experience of self, identity, and interest for white working people. In other words, strong working class identity can help whites be less defined by their positioned perspective or by attachment to privilege. Conversely, attachment to privilege diminishes solidaristic identification. Both privilege and positioned perception shape "men's ideas and values ⋯ actions, choices, and beliefs" by distributing benefits and by justifying them. Whiteness can therefore facilitate the sense of "middle class" status expressed by many American workers. Race is part of the construction of class-as-status in America, and status-consciousness is part of what defeats the development of solidaristic consciousness.
179. Id.
180. Id.
181. The question here, as with the points that follow, is that both things may be true and in contradiction to some extent. Poor whites likely reap some marginal benefit from racism. At the same time they might reap some benefit, the bet is more, from class solidarity where they might, with others, effect change in the economy.
182. Here one might question why an anti-racist or pro-feminist position might be necessary given the potential development of worker's identities. As a practical matter, it is not clear a worker identity will hold where there is strident racism and sexism. As a theoretical matter, blacks and whites, for example, are not socially situated in the same position, such that racial solidarity among blacks might serve the larger multiracial group in a way that white solidarity does not given the history of race relations in the U.S.