Proculian Meditations

Fellow Servants and the Interests of Capitalism
Freespace's Sandefur writes:

You know how the Supreme Court was all evil in the 19th century because all it cared about was the capitalist class, and it was just a tool for oppressing workers and crippling little babies with cackling glee? And you know how the Court was made up of a bunch of clones of Montgomery Burns, and the leading one of these nasties was Stephen J. Field, who invented, out of whole cloth, the Lochnerian, so-called “right to earn a living,” which doesn’t appear at all in the Constitution and is just a means of keeping down the poor? And you know how tort law was biased in those days against the little guy, but only in the 20s and 30s did the courts change the tort law to protect us against those wicked greedy corporations, by abolishing things like the “fellow servant” rule?

Funny thing here that I learned from G. Edward White’s book on the history of tort law. Apparently in a case called Ross, Justice Field wrote an opinion strongly curtailing the fellow-servant rule, and allowing wide sweep for tort suits by workers against their employers. That case was reversed a few years later in an opinion by Justice Brewer (Field’s nephew). According to White, "Field dissented, attacking Brewer’s opinion because it didn’t protect the working man.

And why did Field dissent? According to White, "Field found the latter line of decisions 'most in accordance with justice and humanity.'"

Wrong! As is now well-established, the fellow-servant rule was not in the interests of the capitalist class. The fellow-servant rule does serve the interests of individual capitalists in individual cases, but in the long run it both degraded the capacities of the labor force and created legitimation problems--a point that even my first year torts students are able to come up with in class discussion. If Justice Field was so concerned about "justice and humanity," why does he side with his capitalist masters in case after case!

Why Not the Ultra Minimal State
Yglesias writes

despite Anarchy, State, and Utopia's prominence in political philosophy circles, one almost never hears a properly Nozickian argument advanced in the public sphere.

The reason for this is fairly clear -- Nozick puts forward the view that we should adopt the minimal state no matter how bad the consequences of doing so will be for society as a whole.

Missed by a mile. Despite the fascination of libertarians with Nozick, his theory is utterly useless as tool for global capitalism. The point of the modern state is to serve its capitalist masters & the ultra-minimal state would simply not be a powerful enough servant. Arguments for capitalism are rampant in the public square, even though the consequences of capitalism are "bad" "for society as a whole," but if Yglesias arguments were correct, arguments for capitalism would disappear. Not!

Why Firms Move Abroad
Idiotblogger Larry Kramer has a detailed series of questions for capitalist John Kerry about why global capitalism continues to colonize the third world. Can Kramer possibly be serious? Does he really believe that Kerry has any intention of restricting the rapaciousness of global capitalism? Could Kramer have any doubts about global capitalism's motives for subjugating cheap labor in the third world? Does Kramer think Kerry will answer his questions? Inquiring minds want to know.

MacLeod on Lenin's Theory of Imperialism and the War
For a breath of fresh air, read this!

No Bullshit Marxism = Bullshit Non-Marxism
Once again, the blogospheric left makes me want to puke. Henry Farrell at Crooked Timber takes up Volokh the Younger's invitation to debase Marxist analysis by cramming it into the straightjacket of neoclassical rational choice theory:

A big chunk of interesting contemporary work in Marxist theory starts from the premise of methodological individualism, and very frequently from the kinds of rational choice microfoundations that economists are attached to. Jon Elster’s work on Marx is an obvious starting point; Adam Przeworski’s Capitalism and Social Democracy looks at exactly the relationship between class identity and collective action that Sasha is interested in, and how it shaped the turn to social democracy in the early decades of this century. I’m also very fond of John Bowman’s Capitalist Collective Action, which examines how capitalists have used trade unions in order to organize themselves collectively. While all Marxists haven’t become methodological individualists, a fair number of them have, and arguably have greatly improved the rigor and clarity of Marxist thinking by so doing.

With friends like Jon Elster, Marxism doesn't need enemies! If the methodological assumptions of neoclassical economics were valid, then class-based analysis would be beside the point. What neither Elster nor Farrell gets is that "rational choice" by the individuals (of methodological individualism) is the intellectual equivalent of a soothing bed-time story for frightened children. There was a time in the 1980s when everyone was excited by so-called "rational choice Marxism" or "no bullshit Marxism" as it was called by the insiders. Twenty years on, it is pretty clear that "no bullshit Marxism" was really "bullshit Non-Marxism."

On a more hopeful note, Volokh the Younger actually appears to be intellectually curious about real Marxism. Perhaps, he might consider the possibility that the blogosphere isn't the place to begin a Marxist reeducation. Sasha, how about Das Kapital?

Stephen Reinhardt
Former labor lawyer and now Ninth Circuit Judge Stephen Reinhardt has been interviewed by Howard Bashman:

Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp followers in academia, have deliberately distorted the jurisprudence of judges who treat the Constitution as a living, breathing dinstrument. These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question. Most, if not all, judges do their very best to follow the law as they understand it, to respect precedent, and to use the traditional tools of adjudication. The disagreements frequently result from differing views of what the Constitution mandates, of the proper role of the federal judiciary in a democratic society, or even of what legal principles apply to the construction of statutes. For example, when examining the purposes and objectives of a congressional enactment, one side may consider whether an interpretation that leads to unfairness and injustice is consistent with what Congress intended. The other may not care so much about what Congress may have had in mind, but instead may view the statutory question through a far narrower and more rigid set of legal rules. Usually, however, both sides are applying what they sincerely believe to be the proper jurisprudential principles. Each side may believe the other is misguided. Neither should accuse the other, however, of being dishonest or of refusing to follow the law.

Bullshit! There is not a single judge on the federal bench who isn't willing to be dishonest if that is necessary to serve the interests of the capitalist class. Some judges, like Reinhardt, are dishonest in the service of capitalism with a "gentle mask," and others, like Kozinski, are dishonest in the service of greed unbound. The whole point of the judiciary in a capitalist society is to mask relations of power in the thin veneer of the rule of law. By the way, did you notice that Reinhardt said that neither the left not the right should "accuse the other" "of being dishonest." Reinhardt DID NOT SAY that neither side WAS DISHONEST--just that no one should expose the SHAM!

Nathan Hale Society
Dupes and running dogs will surely want to attend the meetings of the Nathan Hale Society--what could be more fun that figuring out what national security policy best serves the interests of the capitalist class?

Sickening Apology for Billionaires
Aren't you glad that there is a law professor who will take even the most morally degenerate positions imaginable? You can find the embarassing drivel here.

Balkin Gets It Right
Dialectically sophisticated Jack Balkin has a post on Bush's budget that ends with the right punch line: "President Bush he appears to stand for budgetary restraint and for making tough decisions about government expenditures when in reality he is running enormous deficits and lining the pockets of his wealthiest supporters." And what class do Bush's wealthiest supporters come from?

The Dead End of Ideology Critique
The master defender of capitalism of our age was John Rawls. Rawls convinced everyone, on the left and the right, that the defining issue of political philosophy is "the justice of the basic structure." Hence, just basic structure = soul crushing inequality is legitimate. One of the reasons that I admire Jerry Cohen (despite the bizarre Christian twist to his recent work) is that he doesn't buy into this crap. It is therefore especially disheartening, even tragic, when those who purport to represent the left continue to pursue the dead end of ideology critique. An extreme form of this pathology can be found in a recent exchange on the Leiter Reports. Ben Hellie from Cornell writes:

'People do not like injustice. The knowledge that injustice is being done to others offends their sense of morality; the knowledge that injustice is being done to them makes them angry and resentful. Both these emotions contribute to a desire to use the political system in order to counter injustice. So it is very helpful for the right wing to achieve its goal if the existence of injustice, and the unjust effects of the policies it endorses, can be concealed.'

As if exposing injustice could somehow magically transform the economic base. Hellie's exchange with the overt defenders of capitalism is yet another example of artificial negativity. Don't go there!

Pathetic Capitalist Foolishness
You can get here. And seriously, does Arnold Williams really think that multi-billion dollar media conglomorates pose any serious threat to capitalism?

State Capitalism Is Not Marxism
I cannot help but feel sorry for harm at ne quid nemis, who comments that proculian mediations are "the exact same stock of meaningless pablum we were constantly bombarded with in pre-Decembrian Romania." But of course, Romania was not even close to a Marxist society. Whether you call it "state capitalism" or a return to the "asiatic mode of production" or perhaps just fascism with a Stalinist twist, it is pretty obvious that Marxism had nothing to do with Romania.

Insta Opiate of the Masses
If you want the cyber equivalent of the old-time religion, you can find it here.

!!!!!!!!!!
Volokh the Elder's post suggests that this blog is "great parody" that doesnt have "as many" exclamation points Volokh would "have expected." Volokh the Younger says, "I have heard stuff just as bad coming out of very strident libertarians." Here's the sad part, the state of politics in the capitalist (so-called) democracies is now so degraded that anyone who points to the fundamental importance of class struggle can be dismissed as a joke or as the intellectual equivalent of a single-celled organism (aka "strident libertarian").

How to Steal an Election
How can anyone believe that multi-billion dollar capitalist institutions like the New York Times or the Washington Post do anything other than legitimate capitalism. Of course, they are great at focusing on stories that divert attention from class struggle. The New York Times reports:

Concerned citizens have been warning that new electronic voting technology being rolled out nationwide can be used to steal elections. Now there is proof. When the State of Maryland hired a computer security firm to test its new machines, these paid hackers had little trouble casting multiple votes and taking over the machines' vote-recording mechanisms. The Maryland study shows convincingly that more security is needed for electronic voting, starting with voter-verified paper trails.

As if elections make a difference! When all of the candidates reflect the interests of the ruling capitalist class, who cares which thief steals the election? Elections in the Capitalist World are stolen long before the polls open!

Sheep's Clothing
Eugene Volokh cunningly posts criticisms of right-wing nutcases like Irving Kristol on the issues that don't threaten the fundamental interests of the ruling class. Do not be deceived. The so-called "reasonable right" is actually the "dangerous right." So-called "libertarians" exist because it is in the interests of the ruling class to detach social issues like gay rights from the only issue that really counts, class struggle.

More Artificial Negativity
Nothing burns me more than the apparently endless capacity of the academic left for distraction. A prime example is the trivial controversy over creation science and evolution in the public schools. Every drop of ink (or keystroke) wasted on this issue functions to distract attention from the three issues that really count. What are those three issues? Class, class, and class.

Class Cohesion
Isn't the Cheney/Scalia duck hunting trip just more of the same? These interconnectons among members of the ruling class are nothing new. Calling for Scalia's recusal is worse than a band aid. Such palliative measures serve only to legitimate a system that is fundamentally corrupt beyond redemption. (Running Dog Howard Bashman has more links.)

Corporate Tools and Capitalist Bloodsuckers
The so-called democratic primary season of 2004 was already over before it began. Consider this story:

Howard Dean, the erstwhile "Internet candidate," urgently needs to explain to his core Nethead constituency why Joe "Nethead" Trippi is out and Roy "Bellhead" Neel is in. Neel was president of the US Telecom Association (USTA) in the late 1990s when it was the voice of the Big Baby Bells calling for an end to FCC enforcement of the 1996 Telecom Act's competitive provisions. In a USTA op-ed in 2000 (no longer on the USTA Website, but cached here) Neel said,

America’s local phone companies are poised to compete head-on for consumers if only the FCC reduced or eliminated outdated regulations.

The outdated regulations he spoke of in 2000 were the pro-competitive provisions of the 1996 Act. He believes that the FCC is, "requiring [the telcos] to give away their networks, facilities and equipment." What he meant was that he wants TELRIC eliminated. (TELRIC is an FCC pricing formula for unbundled network elements that is already so slanted that CLECs find it almost impossible to compete.)

I cannot believe the naivite of Dean supporters who actually believe that the Dean phenomenon is anything other than "artificial negativity," sucking energy out of truly radical alternatives. And speaking of alternatives to Dean, we have John Kerry--the patrician with family wealth over half a billion dollars. Link courtesy of capitalist dupe Larry Lessig.

The Superstar of Rent-a-Constitution
Randy Barnett, the crypto-anarchist, pseudo-libertarian, is on a book tour! Isn't that precious? And Glenn Reynolds is calling him the "Constitutional Law Equivalent of a Rock Star!" The commodification of the legal academy is reaching new heights!

Spitzer, Corporate Hack in Reformist Disguise
Ultra-right wing New York Attorney General Eliot Spitzer is on the big-money dole. Did we really need Business Week to tell us this:

New York Attorney General Eliot Spitzer's crusade to clean up Wall Street has helped raise his profile in advance of a possible run for governor. According to recent New York state election filings, his campaign organization, Spitzer 2006, has almost $3.6 million in cash. That's more than double what his likely rival, current Governor George Pataki, has on hand. The money is coming from a veritable who's who of the real-estate, hedge-fund, and legal communities. But an examination by BusinessWeek found that a number of donations are from law firms representing clients caught up in Spitzer's probe of the mutual-fund industry.

Work Ethic?
New age neanderthal Judge Alex Kozinski has been whining about the possibility the Ninth Circuit's shameful memo dispos may become citable under a proposed amendment to the Federal Rules of Appellate Procedure! As far as I can tell, Kozinski's argument boils down to this: if memo dispos are citable, Ninth Circuit judges will actually have to read the stuff the staff clerks prepare in San Francisco. Horrors!

Where is the real left?
What passes for the left in the intellectual blogosphere makes me sick! Just take a look at what's posted on Crooked Timber. Not a shred of serious discussion of class. Lot's of "let's be reasonable" catering to imperialism and warmongering. Even so-called Marxists like Leiter are obsessed with academic status. I don't know where the real left is, but I can't find it the blogosphere.

Nuts at San Diego
Is it just me? Or am I right that the Univeristy of San Diego has hired a bunch of right wing nuts. Don't take my word for it, just read this.

Originalism? You've got to be joking.
I've seen several posts in the blogosphere lately about originalism. Huh? You've got to be joking. Does anyone really think this crap still sells. It went out with Ed Meese. Originalism is just a rhetorical cover for the radical right's stealth campaign to roll the constituton back to 1789. Property qualifications for voting. Slavery. No serious intellectual can take this stuff seriously!

About Me
I'm an untenured law professor at someplace that likes to think of itself as a "Top Ten" law school. At work, I can't afford to say what I think. So I will say it here!