Summary

• Objects (0 modified, 0 added, 1 removed)
  • Caselist.CitesClass[23]

Details

Caselist.CitesClass[23]

Cites

...	...	@@ -1,53 +1,0 @@
1		-Neoliberalism is a mafia protection racket – it defunds schools of private funding and makes them come to corporations for funding. This logic structures what speech and knowledge are free in the first place. The aff misdiagnoses the problem and lets neoliberalism slip through the cracks. Bagakis 11/15/16
2		-
3		-Gus Bagakis retired philosophy instructor at San Francisco State University and author of "Seeing Through The System: The Invisible Class Struggle in America," October 15, 2016 “Neoliberalism's Decades-Long Attack on Public Universities”
4		-
5		-One aspect of the project of neoliberalism was to reshape the population's understanding of the purpose of public institutions, such as schools and universities, to fit the corporate model. This transformation was part of a larger cultural shift that began in the '70s and '80s, when policy-makers started to see higher education more as a private (rather than public) good.¶ The plan to transform the higher education system to meet the needs of neoliberalism can be most clearly seen in a memo sent by Lewis Powell, a future member of the Supreme Court, to the US Chamber of Commerce in 1971. The memo was a response to some setbacks that befell the business community, ranging from government regulations on the environment to occupational safety and consumer protection laws. The memo presented a framework for the conservative reaction.¶ Powell stated:¶ One of the bewildering paradoxes of our time is the extent to which the enterprise system tolerates, if not participates in, its own destruction.¶ The campuses from which much of the criticism emanates are supported by (i) tax funds generated largely from American business, and (ii) contributions from capital funds controlled or generated by American business. The boards of trustees of our universities overwhelmingly are composed of men and women who are leaders in the system.¶ Further, he argued that¶ ... it is essential that spokesmen for the enterprise system ~-~- at all levels and at every opportunity ~-~- be far more aggressive than in the past ... There should be no hesitation to attack the Naders, the Marcuses and others who openly seek destruction of the system. There should not be the slightest hesitation to press vigorously in all political arenas for support of the enterprise system. Nor should there be reluctance to penalize politically those who oppose it.¶ The Powell memo's plan was to: a) defund public higher education; b) then "save" the universities with ideologically focused corporate funding friendly to "free enterprise;" c) turn universities into corporations; and d) turn the students into consumers who became educated labor products.¶ Neoliberal Plan for Defunding Universities ¶ States provide much of the funds for higher education but need to balance their budgets. So when tax revenues fall, higher education suffers, since it is a lower priority than Medicare, prisons and K-12 education. In addition, large corporations often pay little or no state income tax in states where they have large operations. In a 2011 report, the Center on Budget and Policy Priorities concluded that at least 46 states have imposed cuts in the funding of higher education.¶ The American Legislative Exchange Council (ALEC) ~-~- a nationwide association of state legislators and corporations ~-~- best expressed the neoliberal perspective. It successfully lobbied both the states and the federal government to reduce corporate taxes and, in effect, deprive public universities of the state and federal funds they needed.¶ In an Americans for Tax Fairness fact sheet on corporate tax rates, we can see that:¶ The corporate share of federal tax revenue has dropped by two-thirds in 60 years.¶ General Electric, Boeing, Verizon and 23 other profitable Fortune 500 firms paid no federal income taxes.¶ US corporations dodge $90 billion a year in income taxes.¶ US corporations officially hold $2.1 trillion in profits offshore.¶ Tax avoidance, plus lobbying that reduced corporate taxes, diminished the revenue for social programs, especially education. This reduced funding was coordinated with a public relations campaign claiming that public schools were failing, and that they should be privatized and would be improved if they were turned into profit-making ventures. The project is already running for K-12 education with the charter school movement, and now it's being used in higher education, as federal and state governments have gradually reduced funding.¶ The least discussed reason for reduced state revenue for social programs is our ever-growing defense budget. The Pentagon spends more on war than all 50 states combined spend on health, education, welfare and safety. Even prior to the arrival of neoliberalism, military adventures drained money from the social budget. In 1935, Gen. Smedley Butler wrote a book titled, War Is a Racket, in which he exposed greedy profit-making corporations as instigators of imperialism and war. In 1961, President Eisenhower warned of the military industrial complex as a hidden force in US politics. But the military budget is higher today than at any point since the Eisenhower administration.¶ We now have a new neoliberal-inspired military industrial complex consisting of companies, agencies, militarized policing, hidden budgets, a "deep state," private mercenaries and lobbyists that make Eisenhower's warning mild by comparison. Our budget priorities keep the country on a war footing, and our economy allows for military and homeland departments to be virtually untouchable. The current excuse for funds is "terrorism," but under neoliberalism, the actual purpose is to control the world's resources for American capitalism and to stop other countries from competing with us. As Colonel Wilkerson, echoing general Butler, stated recently: "We've privatized the ultimate public function: war ... In many respects it is now private interests that benefit most from our use of military force." A few universities are beneficiaries of war spending through their research for the war machine, but most are losers due to the financial and educational effects of the loss of funding, while the war machine grows.¶ "Saving" Defunded Universities With Corporate Funding¶ A partial replacement for the loss of public funds comes from corporate and philanthropic "gifts" and industry contracts for universities. Groups of conservative millionaires like the Koch brothers have created institutions to push the corporate agenda. They have infiltrated universities and introduced the neoliberal worldview through think tanks and programs designed to give "assistance" to those institutions that would accept their money and programs. These groups, with the combined help of the corporate controlled press and a sophisticated public relations campaign, eased the transition to the corporatization of universities.¶ Turning Universities Into Corporations¶ A 2014 Institute for Policy Studies report finds that the outcome of treating education as a commodity has led to universities mimicking business models. Presidents, chief executives and a layer of bureaucrats earning excessive salaries were established, while the earnings of the faculty declined, largely because tenured and tenure-track faculty were replaced by adjuncts (part-time faculty) and temporary faculty. Instead of giving primary focus to education, scholarship and research, colleges and universities began marketing themselves as products worth purchasing by the consumer. Science and humanities faculty were encouraged to become entrepreneurs and seek ways to profit directly from their intellectual and technical pursuits.¶ Mark Yudof, former president of the University of California, conceded that the university needed to stop viewing itself as a public institution and consider itself a "hybrid" university, bridging the divide between private and public institutions. In a time of scarce resources, privatization has emerged as a potential replacement for the historic model of community support of public universities. The danger is that when corporations fund universities, they get influence over studies and analysis produced by universities, as well as influence over the perspectives and career paths of large numbers of students. They also get use of vast resources for private gain and tax breaks associated with making donations.¶ Students as Consumers and Educated Labor Products¶ Fifty years ago, students often pursued their favorite high school subjects in college, assuming that the degree itself would guarantee a job. Not so today, as living expenses and tuition have risen. Students and their families paying the bill see themselves more as consumers of a commodity rather than engaging in a learning process. Because there is no guarantee of a good job after graduation, universities increasingly connect learning with the skills needed for the hard-to-enter job force. Education more and more becomes job training, and students become educated labor products.¶ By ensuring the need for outside sources of funding, neoliberalism set the context that led to the growth of tuition. When the federal government opened its student loan service to profit-making corporations, profit dominated. The privatized loan industry, through predatory lending schemes, offered loans to all students ~-~- even to those who sometimes could not afford them. Their profit motive, combined with the laws passed by a highly lobbied Congress, eventually made the $1.3 trillion student debt the worst kind of debt for students, but the best for banks and debt collectors. Currently, all involved in the student loan industry make money from student debt: banks, private investors and even the federal government. This action has led to the rise of for-profit colleges whose goal was often to exploit the poor who couldn't afford to enter higher education in the first place. And finally, as Kenneth Saltman pointed out, "Shifting the costs of higher education onto students represents a kind of debt spending by youth to fund the military and corporations."¶ Resisting Neoliberalism¶ Even though neoliberalism is in decline due to the 2008 depression and weak recovery, its values and accomplishments have staying power. By using rhetoric like "individual freedom," "liberty," "personal responsibility," "privatization" and the "free market," it was able to undo much of the New Deal and restore corporate power, and in the case of higher education, be responsible for the rise in tuitions and decline in educational quality.¶ The neoliberal plan for public universities is to defund, then refund with strings attached, corporatize them into profit-makers, and turn the students into educated labor products that would fit into the economy. Its effects are most clearly expressed by Grover Norquist's quote about government: "I don't want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub." Neoliberalism doesn't want to abolish universities; it simply wants to turn them into profitable corporations that will maintain and promote the neoliberal version of capitalism.
6		-
7		-
8		-Free speech is an illusion propagated by corporatists – their model of rights assumes an equal playing field analogous to free market economists view of capital. The promotion of free speech perpetuates the idea that speech is a commodity, which strengthens neoliberalism’s hold on the academy. Brown 15
9		-Brown, Wendy. Undoing the demos: Neoliberalism's stealth revolution. MIT Press, 2015.
10		-At times, kennedy raises the pitch in Citizens United to depict limits on corporate funding of PAC ads as “an outright ban on speech”;19 at other times, he casts them merely as inappropriate government inter- vention and bureaucratic weightiness.20 But beneath all the hyperbole about government’s chilling of corporate speech is a crucial rhetorical move: the figuring of speech as analogous to capital in “the political marketplace.” on the one hand, government intervention is featured throughout the opinion as harmful to the marketplace of ideas that speech generates.21 Government restrictions damage freedom of speech just as they damage all freedoms. on the other hand, the unfettered accumulation and circulation of speech is cast as an unqual- ified good, essential to “the right of citizens to inquire...hear... speak...and use information to reach consensus itself a precondi- tion to enlightened self-government and a necessary means to protect it.”22 not merely corporate rights, then, but democracy as a whole is at stake in the move to deregulate speech. Importantly, however, democ- racy is here conceived as a marketplace whose goods—ideas, opinions, and ultimately, votes—are generated by speech, just as the economic market features goods generated by capital. In other words, at the very moment that Justice kennedy deems disproportionate wealth irrele- vant to the equal rights exercised in this marketplace and the utili- tarian maximization these rights generate, speech itself acquires the status of capital, and a premium is placed on its unrestricted sources and unimpeded flow.¶ What is significant about rendering speech as capital? economiza- tion of the political occurs not through the mere application of market principles to nonmarket fields, but through the conversion of political processes, subjects, categories, and principles to economic ones. This is the conversion that occurs on every page of the kennedy opinion. If everything in the world is a market, and neoliberal markets con- sist only of competing capitals large and small, and speech is the capital of the electoral market, then speech will necessarily share cap- ital’s attributes: it appreciates through calculated investment, and it advances the position of its bearer or owner. Put the other way around, once speech is rendered as the capital of the electoral marketplace, it is appropriately unrestricted and unregulated, fungible across actors and venues, and existing solely for the advancement or enhancement of its bearer’s interests. The classic associations of political speech with freedom, conscience, deliberation, and persuasion are nowhere in sight.¶ How, precisely, is speech capital in the kennedy opinion? How does it come to be figured in economic terms where its regulation or restriction appears as bad for its particular marketplace and where its monopolization by corporations appears as that which is good for all? The transmogrification of speech into capital occurs on a number of levels in kennedy’s account. First, speech is like capital in its tendency to proliferate and circu- late, to push past barriers, to circumvent laws and other restrictions, indeed, to spite efforts at intervention or suppression.23 speech is thus rendered as a force both natural and good, one that can be wrongly impeded and encumbered, but never quashed.¶ second, persons are not merely producers, but consumers of speech, and government interference is a menace—wrong in prin- ciple and harmful in effect—at both ends. The marketplace of ideas, kennedy repeats tirelessly, is what decides the value of speech claims. every citizen must judge the content of speech for himself or herself; it cannot be a matter for government determination, just as govern- ment should not usurp other consumer choices.24 In this discussion, kennedy makes no mention of shared deliberation or judgment in politics or of voices that are unfunded and relatively powerless. He is focused on the wrong of government “commanding where a per- son may get his or her information or what distrusted source he or she may not hear, using censorship to control thought.”25 If speech generates goods consumed according to individual choice, govern- ment distorts this market by “banning the political speech of millions of associations of citizens” (that is, corporations) and by paternal- istically limiting what consumers may know or consider. Again, if speech is the capital of the political marketplace, then we are polit- ically free when it circulates freely. And it circulates freely only when corporations are not restricted in what speech they may fund or promulgate.¶ Third, kennedy casts speech not as a medium for expression or dialogue, but rather as innovative and productive, just as capital is. There is “a creative dynamic inherent in the concept of free expres- sion” that intersects in a lively way with “rapid changes in technol- ogy” to generate the public good.26 This aspect of speech, kennedy argues, specifically “counsels against upholding a law that restricts political speech in certain media or by certain speakers.”27 Again, the dynamism, innovativeness, and generativity of speech, like that of all capital, is dampened by government intervention.¶ Fourth, and perhaps most important in establishing speech as the capital of the electoral marketplace, kennedy sets the power of speech and the power of government in direct and zero-sum-game opposition to one another. Repeatedly across the lengthy opinion for the majority, he identifies speech with freedom and government with control, cen- sorship, paternalism, and repression.28 When free speech and govern- ment meet, it is to contest one another: the right of speech enshrined in the First Amendment, he argues, is “premised on mistrust of gov- ernmental power” and is “an essential mechanism of democracy because it is the means to hold officials accountable to the people.”29 Here are other variations on this theme in the opinion:¶ The First Amendment was certainly not understood by the framers to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech.30¶ When Government seeks to use its full power, including criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.... The First Amendment confirms the freedom to think for ourselves.31 This reading of the First Amendment and of the purpose of political speech positions government and speech as warring forces parallel to those of government and capital in a neoliberal economy.
11		-
12		-
13		-
14		-
15		-Our critique independently outweighs the case - neoliberalism causes extinction and massive social inequalities – the affs single issue legalistic solution is the exact kind of politics neolib wants us to engage in so the root cause to go unquestioned. Farbod 15
16		- ( Faramarz Farbod , PhD Candidate @ Rutgers, Prof @ Moravian College, Monthly Review, http://mrzine.monthlyreview.org/2015/farbod020615.html, 6-2)
17		-Global capitalism is the 800-pound gorilla. The twin ecological and economic crises, militarism, the rise of the surveillance state, and a dysfunctional political system can all be traced to its normal operations. We need a transformative politics from below that can challenge the fundamentals of capitalism instead of today's politics that is content to treat its symptoms. The problems we face are linked to each other and to the way a capitalist society operates. We must make an effort to understand its real character. The fundamental question of our time is whether we can go beyond a system that is ravaging the Earth and secure a future with dignity for life and respect for the planet. What has capitalism done to us lately? The best science tells us that this is a do-or-die moment. We are now in the midst of the 6th mass extinction in the planetary history with 150 to 200 species going extinct every day, a pace 1,000 times greater than the 'natural' extinction rate.1 The Earth has been warming rapidly since the 1970s with the 10 warmest years on record all occurring since 1998.2 The planet has already warmed by 0.85 degree Celsius since the industrial revolution 150 years ago. An increase of 2° Celsius is the limit of what the planet can take before major catastrophic consequences. Limiting global warming to 2°C requires reducing global emissions by 6 per year. However, global carbon emissions from fossil fuels increased by about 1.5 times between 1990 and 2008.3 Capitalism has also led to explosive social inequalities. The global economic landscape is littered with rising concentration of wealth, debt, distress, and immiseration caused by the austerity-pushing elites. Take the US. The richest 20 persons have as much wealth as the bottom 150 million.4 Since 1973, the hourly wages of workers have lagged behind worker productivity rates by more than 800.5 It now takes the average family 47 years to make what a hedge fund manager makes in one hour.6 Just about a quarter of children under the age of 5 live in poverty.7 A majority of public school students are low-income.8 85 of workers feel stress on the job.9 Soon the only thing left of the American Dream will be a culture of hustling to survive. Take the global society. The world's billionaires control $7 trillion, a sum 77 times the debt owed by Greece to the European banks.10 The richest 80 possess more than the combined wealth of the bottom 50 of the global population (3.5 billion people).11 By 2016 the richest 1 will own a greater share of the global wealth than the rest of us combined.12 The top 200 global corporations wield twice the economic power of the bottom 80 of the global population.13 Instead of a global society capitalism is creating a global apartheid. What's the nature of the beast? Firstly, the "egotistical calculation" of commerce wins the day every time. Capital seeks maximum profitability as a matter of first priority. Evermore "accumulation of capital" is the system's bill of health; it is slowdowns or reversals that usher in crises and set off panic. Cancer-like hunger for endless growth is in the system's DNA and is what has set it on a tragic collision course with Nature, a finite category. Secondly, capitalism treats human labor as a cost. It therefore opposes labor capturing a fair share of the total economic value that it creates. Since labor stands for the majority and capital for a tiny minority, it follows that classism and class warfare are built into its DNA, which explains why the "middle class" is shrinking and its gains are never secure. Thirdly, private interests determine massive investments and make key decisions at the point of production guided by maximization of profits. That's why in the US the truck freight replaced the railroad freight, chemicals were used extensively in agriculture, public transport was gutted in favor of private cars, and big cars replaced small ones. What should political action aim for today? The political class has no good ideas about how to address the crises. One may even wonder whether it has a serious understanding of the system, or at least of ways to ameliorate its consequences. The range of solutions offered tends to be of a technical, legislative, or regulatory nature, promising at best temporary management of the deepening crises. The trajectory of the system, at any rate, precludes a return to its post-WWII regulatory phase. It's left to us as a society to think about what the real character of the system is, where we are going, and how we are going to deal with the trajectory of the system ~-~- and act accordingly. The critical task ahead is to build a transformative politics capable of steering the system away from its destructive path. Given the system's DNA, such a politics from below must include efforts to challenge the system's fundamentals, namely, its private mode of decision-making about investments and about what and how to produce. Furthermore, it behooves us to heed the late environmentalist Barry Commoner's insistence on the efficacy of a strategy of prevention over a failed one of control or capture of pollutants. At a lecture in 1991, Commoner remarked: "Environmental pollution is an incurable disease; it can only be prevented"; and he proceeded to refer to "a law," namely: "if you don't put a pollutant in the environment it won't be there." What is nearly certain now is that without democratic control of wealth and social governance of the means of production, we will all be condemned to the labor of Sisyphus. Only we won't have to suffer for all eternity, as the degradation of life-enhancing natural and social systems will soon reach a point of no return.
18		-
19		-The alternative is a relentless class-based politics that works against the university’s economic underpinnings – only engaging in a critique that focuses on the economic forces at play in public universities can we resolve capitalism. Oparah 14
20		-Oparah, Julia. Professor and Chair of Ethnic Studies at Mills College and a founding member of Black Women Birthing Justice "Challenging Complicity: The Neoliberal University and the Prison–Industrial Complex." The Imperial University: Academic Repression and Scholarly Dissent (2014).
21		-¶ In my earlier work on the academic-prison-industrial complex, I suggested that activist scholars were producing and disseminating countercarceral knowledge by bringing academic research into alignment with the needs of social movements and interrogating and reorganizing relationships between prisoners and researchers in the free world.50 Given the history of epistemic and physical violence and exploitation of research subjects by the academy, such a reorganizing of relationships and accountabilities is clearly urgently needed. Yet no matter how radical and participatory our scholarship is, we ultimately fail to dismantle the academic-military-prison-industrial com- plex (academic-MPIC) if we address it only through the production of more knowledge. Since knowledge is a commodity, marketed through books, arti- cles, and conferences as well as patents and government contracts, the pro- duction of “better,” more progressive or countercarceral knowledge can also be co-opted and put to work by the academic-MPIC.¶ An abolitionist lens provides a helpful framework here. Antiprison schol- ars and activists have embraced the concept of abolition in order to draw attention to the unfinished liberation legislated by the Thirteenth Amend- ment, which abolished slavery “except as a punishment for a crime.”51 Aboli- tionists do not seek primarily to reform prisons or to improve conditions for prisoners; instead they argue that only by abolishing imprisonment will we free up the resources and imagine the possibility of more effective and less violent strategies to deal with the social problems signaled by harmful acts. While early abolitionists referred to themselves as prison abolitionists, more recently there has been a shift to prison-industrial complex abolitionism to expand the analysis of the movement to incorporate other carceral spaces— from immigrant detention centers to psychiatric hospitals—and to empha- size the role of other actors, including the police and courts, politicians, corporations, the media, and the military, in sustaining mass incarceration.52¶ How does an abolitionist lens assist us in assessing responses to the academic-MPIC? First, it draws our attention to the economic basis of the academic-MPIC and pushes us to attack the materiality of the militari- zation and prisonization of academia rather than limiting our interventions to the realm of ideas. This means that we must challenge the corporatization of our universities and colleges and question what influences and account- abilities are being introduced by our increasing collaboration with neoliberal global capital. It also means that we must dismantle those complicities and liberate the academy from its role as handmaiden to neoliberal globaliza- tion, militarism, and empire. In practice, this means interrogating our uni- versities’ and colleges’ investment decisions, demanding they divest from the military, security, and prison industries; distance themselves from military occupations in Southwest Asia and the Middle East; and invest instead in community-led sustainable economic development. It means facing allega- tions of disloyalty to our employers or alma maters as we blow the whistle on unethical investments and the creeping encroachment of corporate fund- ing, practices, and priorities. It means standing up for a vision of the liberal arts that neither slavishly serves the interests of the new global order nor returns to its elitist origins but instead is deeply embedded in progressive movements and richly informed by collaborations with insurgent and activ- ist spaces. And it means facing the challenges that arise when our divest- ment from empire has real impact on the bottom line of our university and college budgets.
22		-
23		-The role of the judge is to be a critical analyst testing whether the underlying assumptions of the AFF are valid. This is a question of the whether the AFF scholarship is good – not the passage of the plan.
24		-
25		-Neoliberalism operates through a narrow vision of politics that sustains itself through the illusion of pragmatism. We should refuse their demand for a plan. Blalock, JD, 2015
26		-(Corinne, “NEOLIBERALISM AND THE CRISIS OF LEGAL THEORY”, Duke University, LAW AND CONTEMPORARY PROBLEMS Vol. 77:71) MG from file
27		-RECOVERING LEGAL THEORY’S RELEVANCE? The lens of neoliberalism not only allows one to see how these narratives fit together to reveal a larger rationality but also to understand why the solutions they propose fail to challenge or even escape that rationality. I address the three most prominent prescriptions being offered by critical legal scholars today: (1) a pragmatic turn to politics, (2) a return to more explicit normative and moral claims, and (3) acceptance in recognition that the decline is merely an ebb in the regular cycles of theory. A. Prescription: More Politics The most common prescription for recovering legal theory’s vibrancy is a greater participation in politics—scholars should eschew descriptive projects, especially those that might be used to bolster the conservative argument on an issue or in a case, as well as those critiques that appear purely academic, in favor of projects intended to influence the courts in progressive ways.134 One can certainly understand why this is a tempting prescription in light of the success of explicitly conservative legal theory and methods135 and concern that left-leaning legal academics have not taken up this charge.136 However, this demand for political engagement has unintended consequences: It legitimizes the current frameworks. As the Roberts Court further embraces neoliberal principles, persuading the Court means functioning within neoliberal logic and is therefore counterproductive for the revitalization of critical legal theory. Moreover, this political prescription tends to produce a reified notion of what counts as politics, limiting the political as well as intellectual potential of theoretical projects. For example, in the wake of the of the Court’s incremental move toward recognition of same-sex marriage in United States v. Windsor, 137 many progressive legal scholars have written on the subject hoping to nudge the Court toward full recognition. But in light of Nancy Fraser’s work, one should ask just what kind of recognition that would be—whether it would displace materialist claims or reify forms of identity.138 Full recognition of same-sex marriage is a destination toward which the Court is already heading and an area where the public discourse has largely already arrived. Emphasizing this area also participates in the ideology of erasure, leading many to believe that the current Court is making progressive interventions because it is progressive on identity and cultural issues, even though Windsor was handed down in a term in which the Court retrenched on significant materialist issues and embodied a number of blatantly neoliberal positions.139 Even if not writing for the Court, a legal scholar’s attempt to be useful to those in the profession who share her political goals risks constraining the legal profession and its own professional and disciplinary norms.140 In this way, the focus on concrete political effects helps foster legal thought’s “considerable capacity for resisting self-reflection and analysis,”141 which has only become more pronounced in the face of the neoliberalization of the academy as instrumental knowledge is increasingly privileged. When attempting to counter hegemony, what one needs to do is disrupt the legible—to expand the contours of what is considered political—not to accept the narrowly circumscribed zone of politics neoliberalism demarcates. Therefore, it is crucial not to judge critical legal scholarship according to whether its political impact is immediate or even known, and thus a turn to politics is not the remedy for legal theory’s marginalization. B. Prescription: More Normativity Some scholars recognize the danger of embracing a reified notion of politics that unwittingly reaffirms the status quo, and instead champion assertions of substantive morality to counteract the cold logics of pragmatism and efficiency.142 This proposed solution advocates a return to more substantive ideals of justice and equality. Although it may be true that change will ultimately require wresting these liberal and democratic ideals from neoliberalism and refilling their hollowed-out forms, this approach entails a number of pitfalls. The first is simply the inevitable question regarding moral claims: Whose morality is to be asserted? This question has created crisis on the left before, even producing some of the schisms among the crits recounted above. Neoliberalism does not have to contend with this issue—it foregrounds its formal nature and holds itself out as not needing to create a universal morality or set of values. More importantly, it claims to provide a structure in which one can keep one’s own substantive morals. Therefore, neoliberalism’s logic cannot be countered by moral claims without first disrupting its illusion of amorality. The ineffectiveness of the progressive critique of law and economics, based in claims of distributive justice and moral imperative, provides a clear example of how the neoliberal discourse can capture normative claims. The work of Martha McCluskey, one of the few legal scholars writing about neoliberalism in the domestic context over the last ten years, highlights the extent to which the “distributive justice” critique, which argues against the privileging of efficiency over equality and redistribution, fails to challenge the underlying logic.143 McCluskey illustrates how critics of law and economics who critique the approach’s inattention to redistribution have already ceded the central point, by arguing within the conventional views that “efficiency is about expanding the societal pie and redistribution is about dividing it.”144 “Neoliberalism’s disadvantage is not, as most critics worry, its inattention to redistribution, but to the contrary, its very obsession with redistribution as a distinctly seductive yet treacherous policy separate from efficiency.”145 In order to challenge this rationality, she explains, one cannot “misconstrue neoliberalism as a project to promote individual freedom and value-neutral economics at the expense of social responsibility and community morality.”146 One must instead recognize that neoliberalism has redefined social responsibility and community morality. Therefore, one must refuse the false dichotomy between the economic and cultural spheres (a division that allows the neoliberal discourse to displace cultural concerns to a moment after the economic concerns have been dealt with). Merely asserting the falsity of this separation is not sufficient. Neoliberalism has real effects in the world that strengthen its ideological claims.147 Therefore, it is not a struggle that can take place solely on the terrain of discourse or ideology. Like neoliberalism generally, law and economics does not hold itself out as infallible or as an embodiment of social ideals, but instead as the best society can do. It functions precisely on the logic that there is no alternative. Like Hayek’s theory, “law and economics is full of stories about how liberal rights and regulation designed to advance equality victimize the all-powerful market, undermining its promised rewards.”148 In light of this, it is a mistake to see neoliberalism as disavowing moral principles in favor of economic ones; it instead folds them into one another: “The Law and Economics movement is rooted in the moral ideal of the market as the social realization of individual liberty and popular democracy.”149 Neoliberalism’s approach presents itself not only as efficient, but also as just. Legal scholars need to recognize neoliberalism’s focus on the market is not only a form of morality, but also a powerful one. They cannot assume that in a battle of moralities the substantive communitarian ideal will win.150 Furthermore, the neoliberal framework, through its reconfiguration of the subject as an entrepreneur, justifies material inequalities—in contrast to liberalism’s mere blindness to them. Consequently, merely asserting the existence of material inequalities does not immediately undermine neoliberalism’s claims. Far from the engaged citizen who actively produces the polis in liberal theory, the neoliberal subject is a rational, calculating, and independent entity “whose moral autonomy is measured by her capacity for ‘self-care’—the ability to provide for her own needs and service her own ambitions.”151 The subject’s morality is not in relation to principles or ideals, but is “a matter of rational deliberation about costs, benefits, and consequences.”152 If efficiency is the morality of our time, the poor are cast not only as “undeserving” but also as morally bankrupt. Therefore, efficiency replaces not only political morality, but also all other forms of value. Therefore, critics are right that other forms of value have been crowded out; but the logic is deeper than they seem to realize. It goes beyond the scope of what is being done in the legal academy. It is a logic that organizes our time and therefore must be countered differently. More normativity is not the answer to legal theory’s marginalization because neoliberalism’s logic can accommodate even radically contradictory moralities under its claims of moral pluralism. Ethical claims of justice and community may need to be made, but one must first recognize that countering hegemony is harder than merely articulating an alternative; hegemony must be disrupted first. Disrupting neoliberalism’s logic thus entails not only recognizing that neoliberalism has a morality, but also taking that morality seriously. C. Prescription: Acceptance The final response of legal theorists to their field’s marginalization is to dismiss it as merely the regular ebb and flow of theory’s prominence.153 Putting it in terms of Thomas Kuhn’s theory of paradigm shifts, the contemporary moment is just the “normal science” of the paradigm brought about by the crits’ revolutionary moment in the 1970s and 1980s.154 The vitality, this narrative contends, will return when a competing paradigm emerges. There are several problems with this perspective on the decline. First, it entails an error in logic insofar as it takes an external perspective. Legal theory does not inevitably rise and fall but only according to the work being produced; or, to put it another way, this descriptive account of theory’s ebb can be a selffulfilling prophecy insofar as it decreases scholars’ motivation to pursue and receptivity toward theoretical projects. Second, legal scholars cannot be content with normal science when it has the kinds of consequences for democracy and economic inequality that neoliberal hegemony does. The Court is currently entrenching these principles at an unprecedented rate in areas of free speech, equal protection, and antitrust to name a few.155 At first, such acceptance appears to be what Janet Halley is advocating in “taking a break from feminism,”156 but upon closer inspection it is not. Halley is cautioning against the left’s nostalgia—concluding that operating under the banner of feminism and a preoccupation with “reviving” feminism looks backward instead of forward.157 Critical legal scholarship instead needs to be “self-critical” and to recognize that “how we make and apply legal theory arises out of the circumstances in which we recognize problems and articulate solutions.”158 Theory must arise from engagement with the current circumstances. Acceptance cannot be the solution; legal theory must produce the momentum to move forward. VII CONCLUSION: WHERE WE GO FROM HERE The way forward cannot entail a return to reified notions of theory any more than by a return to reified notions of politics. Critical legal scholars should not attempt to revitalize previous critical movements but, instead, reinvigorate the practice of critique within the legal academy. A. Why Critique Naming neoliberalism is necessary in order to counteract it. Without explicit identification, there can be no truly oppositional position. It also makes legible connections that would otherwise go unseen, as was the case with scholars writing about the decline. But there must also be a step beyond naming: critique. Critique means taking neoliberal rationality seriously. The approach must not be dismissive, merely pointing out neoliberalism’s inconsistencies, but instead must recognize that neoliberal rationality is inherently appealing. One cannot merely indict efficiency as contrary to more substantive values, but one also must recognize that efficiency is inextricably tied to beliefs about liberty, dignity, and individual choice, as well as corresponding beliefs about the capacities and limits of the state to effectuate change. No one is arguing that neoliberalism is the best of all possible worlds; in fact, its power comes precisely from abandoning such a claim. In recognizing its hegemonic status, legal scholars can understand the critical task as being more than just demystification. Neoliberal does not paper over inequalities after all; it justifies them. Ultimately, critique should function as a means of opening the conversation in ways that go beyond the picture of law painted by the Roberts Court—to refuse to allow the legal academy to be merely mimetic of a Court that is clearly embracing a neoliberal vision. Critique provides a means of thinking about law as not limited by what the markets can tolerate; it is the means through which one can discover a form of resistance that goes beyond nostalgia for the liberal welfare state. And finally, critique is simply a means of asserting that things can be different than they are in a world that constantly insists that there is no alternative.
28		-
29		-
30		-
31		-
32		-
33		-Case
34		-
35		-The marketplace of ideas is terrible – government influence creates a chilling effect, it acts as a palliative for broader reform, and shuts dissent into endless debate instead of action – the aff opens a procedural can of worms that makes change impossible. Inbger 84
36		-Stanley Ingber, THE MARKETPLACE OF IDEAS: A LEGITIMIZING MYTH, Duke Law Review, February 1984 EE
37		-The clear and present danger test presupposes that market imperfections sometimes give speakers an unacceptable level of advantage in influencing others. Because information opposing the speaker's viewpoint cannot be transmitted instantaneously to all market participants, the real market substantially departs from the theoretical one.80 Therefore, emergency situations are exempted from first amendment coverage. As long as sufficient time remains for the marketplace's process of deliberation to persist, however, and as long as lawless action is not imminent, no emergency exists and all speech must be protected. Yet the goal of free speech is not merely to have citizens enjoy participating in an effete truth-seeking process. Instead, citizens seek truth through free speech precisely to influence choice and behavior. Recognizing that beliefs are important primarily because those who hold them are likely to act accordingly, Holmes conceded that "every idea is an incitement. '81 Ironically, however, Holmes's "clear and present danger" formula allows government officials to prohibit expression precisely when such speech threatens to incite action.82 An interpretation of the first amendment that permits the state to cut off expression as soon as it comes close to being effective essentially limits the amendment's protection to encompass only abstract or innocuous communication. 83 Consequently, speech is constitutionally protected under the clear and present danger test as long as it is either ineffective84 or insignificant. 85 In either instance the test creates an establishment bias. Other factors peculiar to the clear and present danger test accentuate this bias. The test is both ad hoc and vague. Speakers receive no warning whether their contemplated speech extends beyond the parameters of constitutional protection. The test is totally contextual, giving little guidance to either the speaker or the official censor who must predict the impact of the expression. 6 For the speaker, this lack of notice fosters continuous uncertainty and thus may chill a risk-averse speaker who desires to minimize his personal legal peril.87 Such a person may censor himself by intentionally avoiding those messages he perceives as approaching the fringe of official acceptability. The official, in turn, must decide when the expression is clearly dangerous and when insufficient time exists for a full and fair hearing of responsive expression that would allow good counsel to defeat bad.88 The censor's evaluation involves a two-tiered decision. First, the official must evaluate the speech ideologically to determine whether it is good or evil, because if the speech is good the lack of sufficient time for response is irrelevant. 89 But under the market model, only the marketplace can accurately separate good from evil; therefore, no criteria can exist to determine whether speech is sufficiently evil to warrant exclusion from the market. Second, the official must calculate the seriousness of the speech's evil, because the market requires greater response time for more serious evils. This requirement forces the official to differentiate without any guidelines between evil counsel that is about to lead an insufficiently educated public astray, and good counsel that merely has convinced an adequately informed public of its "rightness." Under a test with such elasticity, speakers who proclaim any radical political doctrine may expect to receive little or no protection because they will always appear as a threat to the nation and, thus, embody the most serious of all possible evils. 90 The establishment bias is again obvious. The clear and present danger test also encourages prolonging debate indefinitely. According to Brandeis, expression may not be prohibited so long as debate remains ongoing. 91 Thus, only the process of truth-seeking is fully protected; decisions and actions predicated upon truths once discovered are protected not at all.92 Brandeis's approach to the marketplace of ideas accordingly encourages prolonged discussion and, therefore, the delay of decisions that might lead to actions contrary to society's generally accepted "truths." There is, however, little value in the discovery of truth that cannot be used as a basis of choice and behavior. Brandeis's focus on procedural aspects of the market rather than on the substantive actions it triggers also fosters delay in implementing any ideas that challenge the status quo perspective. Disputes over the best solutions for societal problems are converted into disputes over proper marketplace processes. For example, rather than focusing on whether the military draft should be reinstated, the debate may well center on whether antidraft groups should be allowed to stage a massive demonstration in a business district. Such procedural concerns divert attention from the substantive issue so that the status quo is more easily preserved. Through this process of transforming substantive conflicts into procedural debates, challengers to the status quo may be placated with a procedural victory while their overt threat is defused.93 This shift in focus helps to insulate society from the trauma of having to reconsider its accepted values while at the same time it allows the protesting individual and his supporters to believe that they have a fair opportunity to win popular support for their position.94 If freedom of expression only gives protection as long as decisions are not yet made, actions are not yet taken, and debate is still in progress, then there is little threat to established norms
38		-
39		-Arguing minorities should engage in a dialogue with aggressors is rooted in paternalism, ineffective, and puts the oppressed further at risk. Delgado 94.
40		-Richard Delgado. David H. Yun. “Pressure Valves and Bloodied Chickens: AN Analysis of Paternalistic Objections to Hate Speech Regulation”. California Law Review. July 1994. AGM
41		-Defenders of the First Amendment sometimes argue that minorities should talk back to the aggressor. .FNSS Nat Hentoff, for example, writes that antiracism rules teach black people to depend on whites for protection, while talking back clears the air, emphasizes selfireliance, and strengthens one’s self-image as an active agent in charge of one’s own destiny. FN86 The "talking back" solution to campus racism draws force from the First Amendment principle of "more speech,” according to which additional dialogue is always a preferred response to speech that some find troubling. FN 87 '884 Proponents of this approach oppose hate speech rules, then, not so much because they limit speech, but because they believe that it is good for minorities to learn to speak out. A few go on to offer another reason: that a minority who speaks out will be able to educate the speaker who has uttered a racially hurtful remark. FN88 Racism, they hold, is the product of ignorance and fear. If a victim of racist hate speech takes the time to explain matters, he or she may succeed in altering the speaker’s perception so that the speaker will no longer utter racist remarks. FN89 How valid is this argument? Like many paternalistic arguments, it is offered blandly, virtually as an article of faith. In the nature of paternalism, those who make the argument are in a position of power, and therefore believe themselves able to make things so merely by asserting them as true. FN90 They rarely offer empirical proof of their claims, because none is needed. The social world is as they say because it is their world: they created it that way. FN91 In reality, those who hurl racial epithets do so because they feel empowered to do so. FN92 Indeed, their principal objective is to reassert and reinscribe that power. One who talks back is perceived as issuing a direct challenge to that power. The action is seen as outrageous, as calling for a forceful response. Often racist remarks are delivered in several-on-one situations, in which responding in kind is foolhardy. FN93 Many highly publicized cases of racial homicide began in just this fashion. A group began badgering a black person. The black person talked back, and paid with his life. FN94 Other racist remarks are delivered in a cowardly fashion, by means of graffiti scrawled on a campus wall late at night or on a poster placed outside of a black student’s dormitory door. FNQS in these situations, more speech is, of course, impossible. 885 Racist speech is rarely a mistake, rarely something that could be corrected or countered by discussion. What would be the answer to ”Nigger, go back to Africa. You don’t belong at the University“? "Sir, you misconceive the situation. Prevailing ethics and constitutional interpretation hold that I, an African American, am an individual of equal dignity and entitled to attend this university in the same manner as others. Now that I have informed you of this, I am sure you will modify your remarks in the future”? FN96 The idea that talking back is safe for the victim or potentially educative for the racist simply does not correspond with reality. it ignores the power dimension to racist remarks, forces minorities to run very real risks, and treats a hateful attempt to force the victim outside the human community as an invitation for discussion.
42		-
43		-There are institutional checks to their claims. O’Loughlin 15
44		-Bridget O’Loughlin, Campaign Coordinator of the No Hate Speech Movement for the Council of Europe, Where should the limits to freedom of speech be set?, 04/06/2015, debateingeurope.eu EE
45		-I think this is an extremely pertinent question, and it’s certainly one that many people have been grappling with for some time now… Clearly, you have to be very, very careful because repressive governments have been known to use issues like hate speech to shut down social media and websites without just cause… This is something we need to guard against, and is why we need to look to instruments like the European Convention on Human Rights, and the way it’s been interpreted by the European Court of Human Rights, which has a lot of jurisprudence, a lot of case law, on the limits to freedom of speech in terms of hate speech, or incitement to criminal action or racism, etc. As soon as you’re speaking or writing in the public domain – be that speaking on a soap box in the street corner, or writing an article in a newspaper, or writing a blog which is sent out to millions of people on the internet – you’re in a public area and there have to be some limits on what you are or are not allowed to say… But, clearly, we also have to protect freedom of speech and not let this fight against hate speech be used as an excuse, which I think it is sometimes, to limit freedom of expression.
46		-
47		-The slippery slope argument is non-sense, history and basic logic are on our side. Muravchik 10
48		-Joshua Muravchik has been recognized by the Wall Street Journal as “maybe the most cogent and careful of the neoconservative writers on foreign policy.” He is a fellow at the Foreign Policy Institute of the Johns Hopkins University School for Advanced International Studies and formerly a resident scholar at the American Enterprise Institute. He has published more than three hundred articles on politics and international affairs, Free Speech and the Myth of the Slippery Slope, World Affairs Journal, October 15, 2010 EE
49		-Moreover, a wealth of political history suggests that the slippery slope is a phantom. Almost all European countries ban “hate speech” and many ban Holocaust-denial. This goes against the American grain, but those countries have not sacrificed any other freedoms as a result. Or consider West Germany. The Americans and Germans who framed the Basic Law of the Bonn Republic worked in the terrible shadow of Hitler’s destruction of the Weimar Republic, Germany’s only prior democratic experiment. They were also in uncomfortable proximity to Soviet-run East Germany. So they banned both the Nazi and Communist Parties on the grounds that they were totalitarian movements, aiming to destroy democracy itself. Far from turning into a slippery slope, under this system freedom took hold in Germany at long last and apparently forever. What about America’s experience? The ambit of tolerated speech has grown relentlessly wider. In the realm of obscenity standards, we have gone from Lady Chatterly, to bare breasts, to full frontal, to pictorial gynecology. If there is any slippery slope, it seems to be tilted in the opposite direction from the one invoked by conventional wisdom. Were the court to uphold some constraints on speech, that would merely put us back to some earlier point in the unfolding of American free speech standards. When we were at that point, whatever and whenever it was, we did not slide downward to dictatorship but forward to where we stand today. Where is the danger? I can think of no example in which rights disappeared down a slippery slope. Yes, the Communists used “salami tactics” in subjugating Eastern Europe, but the progressive loss of freedom was scarcely unforeseen. The Kremlin was bent on imposing its model of totalitarianism one way or another on the countries its troops occupied; the salami slices merely made the going smoother. The slippery slope peril is a myth, much like the libertarian bogeyman that the welfare state will lead to dictatorship. In practice, European and other countries have infringed economic freedom without any loss of political freedoms. And they have also constrained speech in ways that most Americans (including me) wouldn’t do but with no further loss of freedom. A sovereign, self-governing people is capable of drawing lines. To argue by imagery and analogy, as does the conventional wisdom apotheosized by the Times, rather than by logic and history, is, you might say, to step onto a slippery slope at the bottom of which lies lots of freedom of thought but very little thinking.
50		-
51		-Vagueness cuts both ways - arbitrary and vague obscenity determinations mean the government can call whatever it wants non-constitutionally protected. Ingber.
52		-Stanley Ingber, THE MARKETPLACE OF IDEAS: A LEGITIMIZING MYTH, Duke Law Review, February 1984 EE
53		-Obscenity. In a society allegedly seeking the true or best style of living, all pertinent ideas deserve due consideration. "All ideas having even the slightest redeeming social importance. . . have... full protection ..... 101 The Supreme Court, however, in the 1957 decision in Roth v. United States,10 2 viewed obscenity as not deserving societal attention because the Court considered obscenity to be "utterly without redeeming social importance."'10 3 Consequently, according to Roth, the government does not engage in content discrimination if it bans obscene material because obscenity is outside the Constitution's protection.: 4 Yet the "redeeming social value" standard is inherently problematic. To whom must the communication be "redeeming"?105 Surely the obscene material has social value to people who willingly pay money to obtain it.t06 The Court can discount this tautology only by insisting that literature has social value within the marketplace of ideas if it advocates a way of life, and not if it merely entertains those already committed to such a life style. 10 7 In essence, the Court believes that equating the free exchange of political ideas "with commercial exploitation of obscene material demeans the grand conception of the First Amendment."' 0 8 The Supreme Court's opinion in Paris Adult Theatre I v. Slaton 1 0 9 exposed the flaws in this distinction. In Paris Adult Theatre, the Court held that material could be obscene even though it is exhibited only to consenting adults. The interests the state protects through this prohibition include "the quality of life,. . . the tone of commerce. . . and, possibly, the public safety itself."' 10 States accordingly have the "power to make a morally neutral judgment" that public exhibition of obscene materials, or commerce in the obscene, tends to "injure the community as a whole" by polluting the "public environment.""' The Court stressed most vehemently that to grant access to obscene material "is to affect the world about the rest of us." 2 Thus, although the Court has often said that speech is protected precisely because of its role in "the bringing about of political and social changes,"' " 3 it refused to protect obscene material in Paris Adult Theatre predominantly because such material advocates a kind of society the Court finds objectionable. The Court's defense of government regulation of obscenity is based simply on "unprovable assumptions" about what is good for the people. 114 The Court justifies relying on such unprovable assumptions by comparing them to the assumptions routinely made regarding "good" materials. The Court suggests that because society accepts on faith alone the uplifting quality of good literature and other art forms, so too, states may accept the corresponding assumption that obscenity corrupts and debases. 1I5 But the Court's comparison is misplaced, for the state does not and could not compel its adult citizens to read, watch, or listen to such good works."16 Official determination of what social change is unacceptable and should not be contemplated is just as antithetical to an open search for truth as is official determination of truth itself.

EntryDate

...	...	@@ -1,1 +1,0 @@
1		-2017-02-11 17:02:05.0

Judge

...	...	@@ -1,1 +1,0 @@
1		-Katya Brooun

Opponent

...	...	@@ -1,1 +1,0 @@
1		-Gig Harbor AH

ParentRound

...	...	@@ -1,1 +1,0 @@
1		-23

Round

...	...	@@ -1,1 +1,0 @@
1		-1

Team

...	...	@@ -1,1 +1,0 @@
1		-Harvard Westlake Gross Neg

Title

...	...	@@ -1,1 +1,0 @@
1		-Stanford R1 NC

Tournament

...	...	@@ -1,1 +1,0 @@
1		-Stanford R1 NC