1LPE: Mullane, Financialization, and Procedural Pliability

Emily Villano —

Few cases were as difficult for me to initially grasp as Mullane v. Central Hanover Bank & Trust Co. (1950), a common case in first-year civil procedure courses. The appellant was a guardian ad litem, the opinion parsed the differences between jurisdiction in personam and in rem, and I woefully had never taken Latin.

My confusion also stemmed from the case’s many reversals of expectations. Mullane can be thought of as a proto-class-action lawsuit: it involved the aggregation and binding of multiple claimants to the judgment of a court—despite the fact that not everyone actively participated in (or even had awareness of) the lawsuit. Today, class actions are paradigmatic tools for making power accountable to people: such as when consumers band together to sue corporations, or prisoners seek reform of prison conditions.

Yet in Mullane, the original plaintiff was a bank. And rather than resisting the aggregation of claims, the bank sought the Court’s blessing for a procedural mechanism to bind absent parties. Herein lies Mullane’s special fascination: the Supreme Court first relaxed constitutional due process requirements in order to aggregate claims—bending central concepts like “notice” and the “opportunity to be heard”—to feed New York’s growing mid-century financial sector.

The story behind Mullane reveals a great deal about civil procedure: such as its role in shaping our political and economic landscape and its chameleon-like capacity for good and ill. Mullane, therefore, particularly lends itself to an LPE approach. Continue reading

Law, Political Economy and Municipal Finance in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part IV

Angela Harris – 

There’s yet one more way I try to get students to see the mutually entangled systems of capitalism and racism presented by Fant v. Ferguson. In its 2015 report on policing in Ferguson following the killing of Michael Brown, the Civil Rights Division of the United States Justice Department concluded: “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.”

Ferguson’s reliance on law enforcement as a revenue-generating tool, however, is not unique; dependence on municipal fines and fees to fund police and court services was widespread at the time in the northern St Louis suburbs. For example, in Edmondton, where nearly one-fifth of the population lives below the poverty level, ticketing was such an important part of the city budget – comprising almost 35 percent of general revenues – that in April, 2014 the mayor put a note in some police officers’ paychecks observing a ‘marked downturn’ in the number of tickets being written, and reminding them, “the tickets that you write do add to the revenue on which the P.D. budget is established and will directly affect pay adjustments at budget time.”

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Legal Geographies of Racism and Capitalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part III

Angela Harris – 

In my second post on Fant v Ferguson, I highlighted the production of precarity through neoliberal state and market governance, and the crushing burden of this precarity on the poor. But the public-private creation and maintenance of precarity, of course, isn’t new. A third vantage point from which to consider Fant v Ferguson is legal geography: the way that racism and capitalism over time shape create and maintain physical spaces through processes of investment and disinvestment, development and underdevelopment, displacement and settlement. A key way into this story – as Audrey MacFarlane notes – is through the history of racial segregation in housing markets.

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Law and Neoliberalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part II

Angela Harris – 

In my first post on Fant v. Ferguson, I introduced the case as a story about our racialized criminal justice system. The criminal justice story, however, represents only one layer of the onion. Like its fast counterpart, the slow violence experienced by Keilee Fant is embedded in a larger system of structural economic inequality that we call “poverty.” Thomas Harvey, a co-founder of the St Louis public interest law firm ArchCity Defenders, which represented Keilee Fant in the case, has commented, “These aren’t violent criminals. These are people who make the same mistakes you or I do – speeding, not wearing a seatbelt, forgetting to get your car inspected on time. The difference is that they don’t have the money to pay the fines. Or they have kids, or jobs that don’t allow them to take time off for two or three court appearances. When you can’t pay the fines, you get fined for that, too. And when you can’t get to court, you get an arrest warrant.”

The world my students learn about in my first-year Criminal Law course contains references to the spectacles of violent black death we now associate with Ferguson, Missouri. But criminal law classes seldom touch on the mundane world represented in the Fant complaint. As criminal justice scholar Alexandra Natapoff notes, that there are really two criminal justice systems in America. There are about 1 million felony convictions in the United States every year. Meanwhile, there are about ten million misdemeanor convictions, and even more “infractions” – offenses, like traffic tickets, that are technically not crimes at all, and yet are tied to the criminal justice system through fines and fees. The felony system is a familiar, Law and Order world of grand juries, felony charges, and parties represented by counsel. The misdemeanor system produces many of the same bad collateral consequences for people who are convicted, including potential loss of state benefits, loss of employment and housing, loss of eligibility for professional licenses, family disruption, and possible deportation — but without the procedural protections available to felony defendants. Misdemeanants routinely lack access to legal representation. Their cases are handled en masse, not individually. Their claims are speedily dispensed with by plea deals that ignore questions of guilt or innocence. All the while, the individuals – black, brown, and “not quite white” – consigned by poverty to this legal underworld are treated with disdain by overworked prosecutors, judges, and defense counsel, who see them as congenitally dysfunctional “mopes.”

From this perspective, the misdemeanor criminal justice system is one element in a sprawling system of surveillance, punitive discipline, and control that makes the lives of poor people profoundly unfree. Poor people live their lives under the control of government programs that all too often start with the assumption that they are lazy, immoral, and in need of guidance and punishment. Our “welfare” system and our foster care system, for example, are built around the assumption that people receiving government assistance are likely to commit fraud. As sociologists like Kaaryn Gustafson have shown, welfare bureaucracies are so focused on punitive action that they incentivize the very fraud they punish. They are also institutionally invested in restructuring the family lives of poor people, whether the goal is to make them get married, stop them from having so many children, or keep them from having abortions – as Julie Nice and others have demonstrated.

Within this second frame, Fant v. Ferguson is a story about “neoliberalism” – an overused but still helpful word that calls attention to the shrinking social welfare state, the transmission of financial risk from government institutions to households, and the widely-held assumption that market governance is superior to democratic governance in nearly every sector of public life.

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Criminal Justice and Slow Violence in Keilee Fant v. City of Ferguson, Missouri

Ed note: This post is the first in a four-part series on Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri by Angela Harris. Look out for the subsequent posts in the weeks to come!

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri
Part I: Criminal Justice and Slow Violence in Keilee Fant v. City of Ferguson, Missouri

Angela Harris – 

More than ten years ago now, Emma Coleman Jordan of Georgetown Law Center called me on the phone and invited me to join her in what she laughingly called an act of “academic imperialism.” She wanted us to collaborate in assembling a casebook – the first in the United States legal education market, we believed – on “economic justice.”

The target of our imperialism was a bifurcation within legal education. Emma and I, at Georgetown and Berkeley respectively, saw two distinct groups of students in our classes. Social justice students took courses on critical race theory, constitutional equal protection, and civil rights, while business-minded students focused courses related to economics, like securities regulation, international trade law, business associations, tax, and banking.

One effect of this divide was that our politically progressive students tended to have little understanding of how markets and market-related institutions work. Instead, they found themselves limited to a moral language under which, for example, corporations could be denounced as “evil” but corporate power and its workings remained opaque. A second, more subtle effect of this divide was to impoverish our teaching about structural inequality. The infamous “public-private split” in legal doctrine reinforces the popular belief that market power represents freedom while government embodies coercion. A similar split, insidious in a different way, limits anti-discrimination law to individual and interpersonal relations: the “intent requirement” in constitutional and statutory law protects institutional and structural subordination. At the same time, business law courses and “law and economics” seminars seldom engage with race, gender, or other forms of subordination – save for a day or two on “corporate social responsibility.” Our imperial project, then, sought to pull down the walls, disrupting both the citadel of law and economics and the cloister of critical race theory.

Though we didn’t succeed at building an empire with our book, we did develop an approach to teaching law and political economy that LPE teachers and scholars can use today. In a series of four posts, I’ll outline that approach using Keilee Fant v. City of Ferguson, Missouri, a class action filed in federal court in the Eastern District of Missouri in 2015. In my Economic Justice classes, I use the case to teach students about ways in which structural inequality in the United States is produced by both racial domination and capitalist exploitation, and what this inequality looks like in the age of “neoliberalism.” I also use it to teach students about how legal doctrine shields this structural inequality from effective challenge, giving them a perspective on the intellectual apartheid of legal doctrine and legal education. In this first post, I explain how I use the complaint in Fant to frame a discussion of law, political economy, and the “slow violence” of the criminal justice system. Subsequent posts will discuss how I use the case to teach students to connect racial and economic inequality to the concepts of neoliberalism, legal geographies, and municipal finance. Each post presents a different way to advance the LPE project in the classroom.  Continue reading

Colorblindness and Liberal Racial Paternalism in Bailey v. Alabama

Noah Zatz – 

Anyone familiar with Bailey v. Alabama understands that it was a case about racial domination in the Jim Crow South. Lonzo Bailey was a Black agricultural laborer who quit his job with a white farmer. For that, a white legal system convicted him of a crime. The prosecution was characteristic of an effort throughout the post-Civil War South to reestablish the brutal exploitation of Black labor in the aftermath of chattel slavery’s formal abolition. The Supreme Court Justices who sided with Bailey surely knew this, too.  And yet they went out of their way to deny it.

This willful, absurd denial makes Bailey an excellent vehicle for critical engagement with colorblindness rhetoric, including the limits of formally race-neutral legal doctrine as a means to address racial inequality. In particular, we can see in Bailey a particular and pernicious dynamic by which, constrained by colorblindness, liberal efforts to remedy racial injustice turn to a form of racial paternalism (terminology I adapt from a forthcoming essay by historian Nathan Connolly). Rather than treating state intervention as correcting the exploitation of systemic racial imbalances of power, racial paternalism treats legal protection as an exceptional intervention on behalf of the incompetent, often relying on the same racial stereotypes that underwrite the exploitative practice at issue.

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Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

Noah Zatz –

vote communist

“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading