Monthly Archives: June 2016

Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism

Samuel Moyn, A Powerless Companion: Human Rights in the Age of Neoliberalism, 77 L. and Contemporary Problems 147 (2014).

Lately I’ve been hoping that the sense of impending doom I feel at the lengthening list of things-that-are-worse-than-they-used-to-be might be at least somewhat mitigated if I could only identify the way(s) in which that list could be boiled down to one – okay, maybe two or even three – big thing(s). Neoliberalism lurks as a strong contender, hence a search for articles I like – lots – that trace this approach, whether at the macro, mezzo, or micro level. There are many such articles, but what I’ve chosen to highlight here is from Vol. 77 of Law and Contemporary Problems, a special edition on law and neoliberalism. Guest Editors Jedediah Purdy and David Singh Grewal explain, with charming delicacy, in their introductory essay, “….the term ‘neoliberalism’ may be unfamiliar to some American legal audiences…[but] it is a common part of the scholarly lexicons of many disciplines and is widely used elsewhere in the world, notably in Latin America and Europe.” (Assuming they are right, here is an attempt at Neoliberalism in a Nutshell:  In contrast to the more social-liberal approaches many Western governments followed just after World War II, neoliberalism emphasises the withdrawal of the state in favour of laissez-faire, market based organization, with characteristic policies aimed at privatization, deregulation, and elimination of social benefits regimes). Purdy and Grewal go on, step by step, to build the case for legal scholars in the US to pay some attention to neoliberalism as a phenomenon and a zone of scholarship.

The piece I’m talking about here is Samuel Moyn’s A Powerless Companion: Human Rights in the Age of Neoliberalism (it occurs to me that the title might not help you understand why I thought this would assist my sense of impending doom). In this piece, Moyn considers three themes – global capitalism, the human rights paradigm, and rising economic inequality. He describes the simultaneous burgeoning of the first two in the 1970’s, and the relatively more recent availability of empirical data that document the third – all noted by numerous other scholars – before arguing that the “crucial connection” between human rights and neoliberalism “is a missed connection: precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to—or even allowed for recognizing— neoliberalism’s obliteration of the ceiling on inequality.” (P. 151.) He positions his insights as in between Marxist and mainstream, concluding in part that there is no point berating human rights for this failure to engage – rather, human rights should be encouraged to keep out of this zone, lest it be seen as a collaborator. (Id.) Continue reading "Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism"

How to Win (at Least) Time in the Information Power Game

Finn Brunton & Helen Nissenbaum, Obfuscation: A User’s Guide for Privacy and Protest (MIT Press 2015).

This book is about using data noise to make your personal information less easily digestible by privacy-consuming systems.

This book is a necessary book because it presents hopeful tactics and strategies for privacy defense at a time when—in spite of half a century of debates about (electronic) privacy laws, regulations and court decisions, best practices and privacy enhancing technologies—we seem to be living in a state of privacy resignation. Continue reading "How to Win (at Least) Time in the Information Power Game"

The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line). Continue reading "The Definition of Suspicion in an Era of Modern Policing"

The Irrepressible Myth of SCOTUS

Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities. Continue reading "The Irrepressible Myth of SCOTUS"