On Reuniting Legal Realism with Moral Pragmatism

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Luke Herrine 

anderson book cover

In 1987 Robert Gordon recounted finding among those “in the center or left of American liberalism…this paralysis, founded in their sense that legal and social realities are frozen, that we have reached the end of history and that the possibility of fundamental change is now forever closed to us.” Gordon’s experience is not unique, of course. The critical project of “unfreezing legal reality” to make it more pliable for egalitarian restructuring has had to confront not only the legal system’s own defense mechanisms but a set of discourses that make it hard to think outside the current system.

As many members of this blog have noted, neoclassical economics has been the most powerful such discourse, but moral philosophy—even that produced by egalitarians—has been similarly unforgiving. Most debates in Anglo-American moral and political philosophy have taken place in the realm of the ideal. Political morality amounts to articulating the constitution reasonable persons would agree to ideal conditions. Legal reasoning requires “rational reconstruction” of existing institutions to understand their moral structure. Egalitarianism is about figuring out how to set up idealized (read: using neoclassical assumptions) insurance markets to correct for inequalities of luck while maintaining room for agency. The idealizations of the debates tend to vacillate between being so unlike our actual world as to be difficult to make sense of or so like our actual world as to “freeze” it by moralizing existing institutions. They may help clear up some of our ideas, but they do not give us much to work with in the project of dismantling oppressive institutions and building democratic ones in their place.

Many critical legal theorists sought alternatives in deconstructive theories, which more often than not were so totalizing that they left little sense that one anybody (except perhaps judges) could do anything productive to reshape society.

Elizabeth Anderson has been the foremost advocate of a pragmatic alternative that treats moral theory like realists treat law: as a going concern. Following a venerable American tradition starting with Peirce, James, and Dewey, she understands moral debate as happening in media res, between socially and historically situated actors attempting to make sense of their attitudes about the world in the process of acting on it. Concepts like “freedom”, “equality”, and “exploitation” evolve out of historically embedded attempts to express attitudes about certain institutional arrangement; they necessarily evolve as arrangements change and as we reflect on what we really ought to care about regarding them. Moral philosophy is merely an extension of everyday reflective and discursive practices, and, if it strays too far from those practices, it results in concepts and arguments that have little or confused relevance to the real world. The process of deciding on ends is not separated from the evaluation of available means in any given context, and both are tied to our evolving understandings of how the world works. It is a process of ongoing recalibration.

Continue reading

Contextualizing Contract Law: An LPE 101 Reading List

Luke Herrine—

Contract is, of course, part of the core legal infrastructure that makes markets possible. But it is more than that. As an ideal type, it is at the core of all individualist social, moral, and political theories that seek to account for human sociality while avoiding social structure. Contract represents the ideal of being able to choose how to calibrate others’ demands with one’s own life plan. It presents the possibility of a social obligation that is not imposed upon one from the outside—by family or tradition or etiquette or the state. The rational choice theories that form the basis for neoliberal economic thought do not just understand chosen obligation as an ideal or a possibility: it is how they model all social institutions, even highly complex ones. No wonder “social contract” has been such an enduring model of the legitimate exercise of state power in the liberal tradition.

Theories based on the contractual ideal have proven especially useful for justifications of capitalist ordering. When the law has taken such theories too seriously, it has found it easy to endorse and even mandate all sorts of market-mediated exploitation as necessary to a free society. Lochner and its ilk were supposed to protect freedom of contract, after all.

The contractual ideal and the promissory morality that comes with it is part of our culture, and not just our legal culture. Even those of us who have been on the business end of exploitative contracts—for debt, for labor, for rent, for whatever else–have a hard time shaking the notion that we are obligated to do what we said we would (even if we didn’t know what we “said we would” via the fine print): that we chose, and therefore have responsibility for, the rules imposed upon us.

Thinking about—and teaching—contract from an LPE perspective requires denaturalizing with this tendency of thought and the forms of moral, political, and legal justification that have grown out of it. And doing that requires dealing with contracts not as the shadows of an ideal Form but as institutions shaped by socio-legal context. It requires dealing with the law of contract not as a self-contained and coherent body of judge-made doctrine but as an overlapping set of rules that deal with different contractual forms in different contexts. And it requires highlighting how the decontextualized contractual ideal can serve ideological functions when used as a map for this complex terrain.

Continue reading

Student Debt Cancellation: It’s Actually Good

Luke Herrine-

Whenever talk of student debt cancellation, or even of a “student debt crisis,” gets too loud, there is a bevy of pundits ready to tut-tut. Don’t you so-called progressives know that most student debt is held by young professionals? That the young professionals with the biggest debt loads are unlikely to default on their debt because they have leveraged their education into high-paying jobs (or at least have well-off family who can pitch in)? And so don’t you see that cancelling student debt would mostly just be a subsidy to already comfortable people? And you call yourself progressive? Shame! Go think about what you’ve done. Let the professionals take care of the policymaking.

Now that the Levy Institute has published a report on the likely macroeconomic effects of student debt cancellation and some left politicians have taken up the idea, David Leonhardt at the New York Times saw fit to rehearse the arguments he and others have made multiple times before (apparently not having read the arguments against his position in that selfsame report). Here’s why he’s wrong again.

Continue reading

Neoliberalism and Higher Education Finance: Breaking out of the Ideology

Luke Herrine —

My earlier post on for-profit colleges discussed a special instance the limits that a neoliberal lens places on a progressive vision for higher education. In this post I discuss the more general phenomenon and an alternative approach to thinking about higher education. In doing so, I draw from a nascent project that Frank Pasquale and I have been working on.

In DC policy circles one rarely hears the value of higher education discussed in any terms aside from preparing students for future employment. Whether college is “worth it” is understood as an investment proposition, and colleges are understood as offering an investment good packaged with short-term consumption benefits (parties and the like).

This is the influence of a neoliberal frame. As several of the authors of this blog have explained, neoliberalism refers to an overlapping set of techniques for justifying social ordering via markets. Common among many of these techniques is the assumption that all social ordering is actually market ordering. Once one understands the underlying market dynamics, one understands that the proper approach is to work with them rather than against them.

Continue reading

Neoliberalism and Higher Education Finance: The For-Profit Case Study

Luke Herrine —

Betsy Devos’s Department of Education spent the summer finalizing its plans to defang Obama-era regulations strengthening consumer protection regulations of for-profit colleges. Undoing these regulations will keep federal funds flowing to companies that line investors’ pockets by imposing a lifetime of indebtedness onto working-class individuals under false pretenses. The ongoing challenges to their delay and repeal (one of which just won in district court!) are thus crucial.Image result for college

But that does not mean that we should celebrate the regulations themselves as victories for progressivism. They are a prime example of the limits that neoliberalism has imposed upon the progressive imagination. From a law and political economy perspective, it is clear that for-profit colleges have become a wealth extraction strategy in which financiers create a revenue stream by using the societal promise of class mobility as a lure to lead structurally disadvantaged individuals into unpayable debt. Shifting from a neoliberal to an LPE lens makes it clear that eliminating for-profit colleges is the first step to a truly progressive vision for the role of higher education in society.

Continue reading