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  • Caselist.RoundClass[18]
  • Caselist.CitesClass[3]

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Caselist.RoundClass[18]

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Caselist.CitesClass[3]

Cites

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	1	+Neoliberalism structures academic freedom in the status quo. It sets limits on what is acceptable behavior to quell dissent and any facult truly radical enough to challenge corporate hegemony are tossed out before they can pose a real threat. Chatterjee and Maira 14
	2	+Chatterjee, Piya, and Sunaina Maira. "The Imperial University: race, war, and the nation-state." The imperial university: Academic repression and scholarly dissent (2014): 1-50.
	3	+Our geopolitical positions—of our immediate workplaces as well as trans- national work circuits—underscore the complex contradictions of our locations within the U.S. academy. These paradoxes of positionality and employment have seeded this project in important ways. We have both taught at the University of California for many years—in addition to other U.S. universities—and have been members of the privileged upper caste of U.S. higher education: the tenured professoriate. We have each used these privileges of class, education, and cultural capital to live and work transna- tionally and have organized around and written about issues of warfare, colo- nialism, occupation, immigration, racism, gender rights, youth culture, and labor politics, within and outside the United States. In fact, we first began working together when we collaborated in 2008 on a collective statement of feminist solidarity with women suffering from the violence of U.S. wars and occupation, during the invasions of Iraq and Afghanistan and the Israeli siege of Gaza.7 Yet our privileges of entry, of inclusion, and of outside-ness are also always marked by the “dangerous complicities” of imperial privi- lege and neoliberal capital, as the chapters by Julia Oparah; Sylvanna Falcón, Sharmila Lodhia, Molly Talcott, and Dana Collins; Vijay Prashad; and Laura Pulido powerfully remind us. Even as we have recognized the institutional privileges and complicities through which we can do this work, we have experienced at various moments and in different ways—as the chapters by Alexis Gumbs, Clarissa Rojas, Thomas Abowd, and Nicholas De Genova suggest—a keen sense of being “outsiders” within—in the university, in aca- demic disciplines, in different nations.8¶ As scholars and teachers located within “critical ethnic studies” and “women and gender studies,” we are also well aware of a certain politics of value, legitimacy, and marginality at play, especially as the dismantling of the public higher education system and attacks on ethnic studies around the nation accelerate. The struggles to build ethnic studies and women/gen- der/sexuality studies as legitimate scholarly endeavors within the academy, emerging from several strands of the civil rights and antiwar movements, are well chronicled and keenly debated. The precarious positions as well as increasing professionalization and policing of these interdisciplinary fields within the current restructuring of the university is a matter of deep con- cern; for example, in the wake of the assault on ethnic studies in Arizona, the dismantling of women’s studies programs, and in a climate of policing and criminalizing immigrant “others” across the nation.¶ The pressure on academics to fund one’s own research—following the dominant grant-writing models of science and technology—is now even more explicit in a time of fiscal crisis and deepening fissures between faculty in the humanities, social sciences, physical sciences, education, and business who occupy very different positions in an increasingly privatized university.9 Prashad reminds us in his chapter of the consequences of the fiscal crisis for college students who bear a massive and growing burden of debt. We recognize these pressures on faculty and students as stemming from neolib- eral capitalism and the university’s capitulation to a global “structural adjust- ment” policy that is now coming “home” to roost in the United States, as astutely argued by Farah Godrej in her analysis linking the neoliberal uni- versity to militarism and violence. The academy has also tried to market the notion of “public scholarship,” transforming activist scholarship into a commodifiable form of knowledge production and dissemination that can affirm the university’s civic engagement—confined by the parameters of per- missible politics, as incisively critiqued by Salaita, Rojas, and Abowd. If we cannot—or choose not to—market our scholarship and pedagogies through these programs of funding and institutionalization, we find our work further devalued within the dominant terms of privatization in the academy. Given that neoliberal market ideologies now underwrite the “value” of our research and intellectual work, what happens to scholars whose writing directly tack- les the questions of U.S. state violence, logics of settler colonialism, and global political and economic dominance?¶ We know from stories about campaigns related to tenure or defamation of scholars, often shared in hallways during conferences and sometimes through e-mail listservs and the media, that there are serious costs to writing and speaking about these matters. For far too many colleagues who confront the most taboo of topics, such as indigenous critiques of genocide and settler colonialism or especially the question of Palestine, the price paid has been extraordinarily high. It has included the denial of promotion to tenure, being de-tenured, not having employment contracts renewed, or never being hired and being blacklisted, as this book poignantly illustrates. Coupled with the loss of livelihood or exile from the U.S. academy, many scholars have been stigmatized, harassed, and penalized in overt and covert ways. There are numerous such cases, sadly way too many to recount here—most famously those of Ward Churchill, Norman Finkelstein, David Graeber, Joel Kovel, Terri Ginsberg, Marc Ellis, Margo Nanlal-Rankoe, Wadie Said, and Sami Al- Arian—but it is generally only the handful that generate public campaigns that receive attention while many others remain unknown, not to mention innumerable cases of students who have been surveilled or harassed, such as Syed Fahad Hashmi from Brooklyn College, while again there are countless other untold stories.10 These are the scandals and open secrets, we argue, that need to be revealed and placed in broader frames of analysis of labor and survival within the U.S. university system.11
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	5	+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
	6	+Brown, Wendy. Undoing the demos: Neoliberalism's stealth revolution. MIT Press, 2015.
	7	+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.
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	9	+This turns the case – the commodification of speech reflects the capitalist illusion of freedom. It makes speech meaningless and kills value to life. Smith ‘14
	10	+R.C. Smith April 24, 2014 “POWER, CAPITAL and THE RISE OF THE MASS SURVEILLANCE STATE: ON THE ABSENCE OF DEMOCRACY, ETHICS, DISENCHANTMENT and CRITICAL THEORY” Heathwood Institute and Press http://www.heathwoodpress.com/power-capital-the-rise-of-the-mass-surveillance-state-on-the-absence-of-democracy-ethics-disenchantment-critical-theory/ JJN from file
	11	+One pressing issue, moreover, is that majority of the popular movements that have emerged in response to the Snowden leaks appear to be reformist in character. As a result, the discourse isn’t so much about fundamental system change; rather it becomes crafted into making mass surveillance less repulsive and more socially acceptable, even marketable. (Consider, for instance, the latest reforms proposed by President Barack Obama). For Adorno, this reformist inclination can be explained in part through an analysis of the logic of the system of capital. We read in Adorno how under modernity – i.e., capitalism – human beings are treated as commodities4 and the political-economy, which is principled on concentrations of power (i.e., ‘contradictory recognition’5), goes over the head of the individual, particularly as ‘coercive society’ aims to ‘shape people’ on behalf of the economic, social and political status quo.6 The system of capital, along with the instrumental use of Enlightenment ideals to promote a rational, efficient system7 have laid a foundation for society wherein the political-economy influences individuals and manufactures consent.8 Accordingly, people are seen as “substitutable entities valued merely for their instrumental uses or ability to command market resources,” and even where “commodification is resisted, the overriding pull of society is toward the status quo and those forms that are valued by society”. 9 As Kate Schick writes: The mind thus shapes itself into socially acceptable, marketable forms and freedom becomes an illusion, made all the more dangerous and difficult to resist because of the appearance of freedom. This is not the fault of Enlightenment ideals as such, but the instrumental use of these ideals in the promotion of a rational, efficient system: ‘The network of the whole is drawn ever tighter, modelled after the act of exchange’ (Adorno 1981: 21).10 Present in the logic of the system of capital itself is not an ‘emancipatory reason’ that aims toward universal guiding principles of an actually egalitarian democracy – i.e., Equality, Egalitarianism, Justice, Rights, etc. Rather, in modern capitalism, with its instrumental reason and positivist logic, such concepts lose their meaning.11 The social narrative no longer accommodates these fundamental principles or judges them to be delusions, because all concepts must be strictly functional in order to be considered “reasonable”.12 In turn, the ideals of a ‘good’ society, for example ideals toward an actual egalitarian democracy, become dependent on the “interests” of the dominant and governing system, which produces and reproduces the epistemic context of its own validity.13
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	13	+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
	14	+ ( Faramarz Farbod , PhD Candidate @ Rutgers, Prof @ Moravian College, Monthly Review, http://mrzine.monthlyreview.org/2015/farbod020615.html, 6-2)
	15	+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.
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	17	+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. Sculos and Walsh 16
	18	+Sculos, Bryant William a¶ Department of Politics and International Relations, Florida International University , and Sean Noah Walsh Department of Political Science and Economics, Capital University. "The Counterrevolutionary Campus: Herbert Marcuse and the Suppression of Student Protest Movements." New Political Science (2016): 1-17.
	19	+¶ The recognition of repressive tolerance as a tool of counterrevolution calls for a careful¶ examination of leftist strategy. For example, so-called ‘microaggressions’, or ‘trigger warnings’,¶ should be taken seriously.65 However, we should and need to ask ourselves: in a world of¶ pervasive macroaggressions and trigger-pulling in a world of wretched poverty, torture and¶ disappeared dissidents—if these concerns should take center stage. We ought to reflect and¶ ask if identity concerns are more important than class or economic concerns. Marcuse would¶ surely argue that class remains a crucial component alongside other dimensions of identity¶ and oppression (for example, race, gender, sexuality, sexual orientation, religion et cetera).¶ He would demand that we act locally but organize globally, and that we refuse the lure of¶ divisive identity politics, without eschewing the central importance of criticizing racialized,¶ gendered dimensions to capitalist oppressions. We must principally and aggressively resist¶ the demand that we tolerate the expressions or enactments of these oppressions under the¶ guise of liberal toleration. In response to this revolting, nauseating, murderous demand, we¶ must revolt in all the ways we can, and that is precisely what #BlackLivesMatter, the Black¶ Liberation Collective (a nascent, more radical national student organization, distinct but¶ related to BLM and includes many of the campus protesters from around the United States),¶ and the broader student movements are aiming and struggling for (even if right now what¶ they are struggling for is precisely that focused vision).¶ The claim that free speech is under assault is often deployed as a tool of repressive toleration¶ by the Right. Perhaps we need some more hashtags: #BlackVoicesMatter or¶ #BlackProtestsMatter (though the label ‘black’ here, as it is with BLM, is meant to be inclusive,¶ not exclusive. There are numbers of white and non-black allies of the organization, as can¶ be seen in any cursory examination of these various protests. This is explicitly laid out in the¶ official platform of the BLM organization. This is the case for BDS as well; it is not about identity so much as it is about defending the humanity of all).66 We need more than just¶ hashtags though. Much more. We have seen the foundations of more. BLM’s platform does¶ not, however, include any mention of capitalism or economic exploitation, despite the fact¶ that the leadership of the organization has spoken out against racialized capitalism.67 The¶ Black Liberation Collective already includes a critique of capitalism alongside other forms¶ of oppression in their platform.68 These are the early and precarious stages of a potentially¶ emergent cohesive Left for the twenty-first century. Through Marcuse’s critical gaze, we can¶ observe what these students and activists have already realized, what is truly intolerable:¶ the demand that we all tolerate the intolerable. Today, the path to liberating tolerance¶ requires the refusal to accept such silencing.¶ Importantly, we must not limit ourselves to merely critiquing existing oppressions, or just¶ suggest principled radical reforms that could move us towards an emancipated, just (global)¶ society. As many on the Left have attempted, though sadly without much wider recognition,¶ we need to start building these alternative futures in the counterrevolutionary present wherever¶ and whenever possible. This means first building racially, sexually and gender inclusive¶ communicative and organizational bridges between both nascent and longer established¶ social movements and class-based organizations, including the too often forgotten Left¶ political parties.69 Liberating tolerance could tear open avenues for the development of the¶ ‘new sensibility’ Marcuse heralds in his late work. We see this as crucial for the possibility of¶ a new society, a free, just, and rational society antipodal and antithetical to the unfree, unjust,¶ and irrational confines of neoliberal capitalism. College campuses have, since Marcuse’s time¶ been a potentially key environment for the cultivation of this ‘new sensibility’—a sensibility,¶ a mentality, oriented towards care, compassion, love, justice, cooperation and indeed active¶ disgust at their inverses.70 BLM and BDS and other less well-known organized movements¶ offer us a new hope and opportunity to revitalize a youthful emancipatory disposition with¶ sustainability.¶ Liberating tolerance against repressive tolerance has the potential to open up the material¶ and ideological space for precisely these developments, against every wish of the counterrevolutionary¶ forces that militate against progress through the silencing of the exuberant¶ dissent we are witnessing across college campuses in the United States and around the¶ world. We write in support of these students and their rejection of white supremacy, racial¶ injustice (on campus and beyond), police brutality as standard practice, especially against¶ minorities, and their calls for an egalitarian educational experience, including the extension¶ of that experience for all people in the United States and around the world. Beyond Herbert¶ Marcuse’s words, we have his emancipatory democratic impetus—we hope to have embodied¶ that impetus here and shown it to be more relevant than ever.
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	21	+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.
	22	+
	23	+First, 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
	24	+(Corinne, “NEOLIBERALISM AND THE CRISIS OF LEGAL THEORY”, Duke University, LAW AND CONTEMPORARY PROBLEMS Vol. 77:71) MG from file
	25	+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.

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	1	+2016-12-17 23:15:24.72

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	1	+Harvard Westlake Morganbesser Neg

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	1	+NovDec - Cap K

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	1	+CPS