The gendered division between productive innovation and inefficient care destroys economic and social sustainability

(Martha, Prof. Emerita@BufflaoLaw, Law and Economics Against Capitalism BUFFALO Legal Studies Research Paper Series Paper No. 2020 – 009 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3815158 )

D. Law and Economics Revives Gendered Separate Spheres The foundational law and economics division between economic productivity and social responsibility is thoroughly entangled with the longstanding ideology of separate gendered spheres (further structured by race, class, sexuality, geography and other status markers). That ideology centers the economy on private production by autonomous interest-maximizing actors, set apart from social “reproduction” associated with hierarchical private relationships of altruism, dependency, and moral authority. Law continually reshapes that separation by designating some labor and interests as components of valuable production deserving public support and authority, while constructing other labor and interests, particularly those associated with feminized domesticity, as non-economic personal qualities, private responsibilities, or costly dependency meriting private sacrifice and submission.61 Even though the efficiency-redistribution binary does not explicitly assign its distinct spheres by gender, it draws on this gendered ideology and history for its narrative force. Nancy Fraser analyzes how unjust and destructive power gets mobilized and masked by defining and enforcing the boundaries of the economy, with those deemed inside entitled to exploit and expend the people, resources, and activities identified as relegated to the outside spheres of social reproduction and nature.62 Similarly, Angela Harris explains that the American political economy “was built on . . . [and] continues to reproduce relations of caste through property, race, kinship in the space marked ’the social.’”63 The exclusion of agricultural and domestic workers from many U.S. labor law protections is one example of how law sets the economy’s boundaries to reinforce social caste. To instead direct the economy toward human flourishing, Harris urges law to challenge how the “social” determines “[t]he lives that matter and don’t, the populations that are and are not ‘native,’ the poor who are and are not deserving.”64 Law and Economics reinforces this systemic, gendered, subordination of the “social” with its core idea that well-being is inevitably dependent on and subordinate to an economy independent of social quality. During the Covid-19 pandemic, political pressures to support the U.S. economy by lifting public health restrictions regardless of human cost followed an ideal of economic well- being that assumes many people will need to sacrifice both their money and their lives to support wealth for a relatively privileged few.65 As Lynn Parramore explains, the anti-social idea of economic welfare maximizes not real societal wealth, but rather the inverse condition of societal “illth,” the term coined by nineteenth century political economist John Ruskin to describe the harmful effects of the emerging system of industrial capitalism.66 From this perspective, rising contemporary economic insecurity among men does not represent a zero-sum loss resulting from women’s gains. Instead, it reflects an anti-social economy designed to hold most people back from their potential for constructing a better world for themselves and others. What the law and economics model fails to recognize is that the social trust built from political and legal systems designed to broadly provide and reward care and protection for diverse individuals, environments, and communities can produce resilience, adaptability, and solidarity vital to long term economic strength.67 Individualized gain-seeking cannot rationally provide meaningful personal security or freedom in the contemporary context of catastrophic global risks from multiple systemic threats of pandemic, climate disruption, economic inequality and instability, social division, and political authoritarianism. By changing the legal subject from the autonomous individual liberal subject to the embodied human who is universally but uniquely born into physical and social dependency and mortality, Martha Fineman draws on feminism to ground economic welfare in responsibility for social quality and equality, making substantive provisioning for universal human vulnerability the central measure of productivity and legitimacy.68 III. Framing Freedom as an Anti-Feminist Economic Value Building on liberal political theory’s focus on individual autonomy, the law and economics master narrative further undercuts feminism with a neoliberal ideal of freedom severed from public moral governance. It responds to liberalism’s conundrum that advancing liberty through democracy and human rights means individuals must submit to the contested substantive judgments of others by positing an efficient market of formally neutral legal rules where individuals freely pursue self-determined gain through consensual transactions. In this view, the private market fosters diversity and personal agency free from collective control, seemingly compatible with feminist resistance to prescribed gender norms. But by grounding legitimate freedom in individualized, private self-interest, this narrative makes systemic gender-based subordination and violence appear to deserve legal deference—or even fundamental legal protection. A. Reducing Liberty to Individual Self-Interest In her intellectual history of neoliberal “rational choice” theory, S.M. Amadae concludes that the ideal of freedom as calculated individual gain-seeking reduces consent to no more than the act of showing up in a system beyond individual control.69 With a gun at your head, the choice to forfeit your money rather than your life is self-interested, but the opposite of meaningful freedom. A deeper understanding of liberty would turn not on the individual freedom to choose, but on the moral qualities of the collective conditions and processes governing our options. Neither economics nor individualized choice can enable law to impartially settle the questions of justice necessary for meaningful freedom. What conditions, for whom, constitute consent free from force and fraud? What individual gains from imposing harm on others should be protected as legitimate private rights or excused as personal, social, or local discretion or indiscretion? Government inevitably distributes the power to use force by how law defines, punishes, monetizes, and immunizes acts of violence.70 Contrary to the law and economics presumption of markets free of force, the recent #MeToo movement against sexual assault illustrates how the strong arm and insidious shadow of physical force is common, not marginal, to the everyday economic lives of many women, a factor to bargain with in the process of securing opportunities for education, work, housing and health care.71 The Black Lives Matter movement similarly shows that deadly public and private violence, tied to militarized policing, mass incarceration, and racial disenfranchisement, routinely looms over ordinary private activity to reinforce an economy of vastly unequal personal freedom and opportunity. Both of these movements are examples of how laws governing physical force are thoroughly gendered in ways that intersect with race, class, sexuality, nationality, and other status markers.72 The law and economics binary frame helps naturalize and legalize this unequal protection by identifying violence as a social or psychological problem or background fact outside an economic realm of self-interested rationality. Steeped in this view, the Supreme Court invalidated federal damage remedies for private gender-motivated violence despite voluminous evidence of its economic harm, claiming that “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”73 Philosopher Kate Manne analyzes misogynist violence as a “law enforcement” system aimed at defining and defending an economy structured to support an unequal masculine entitlement to gain from women’s service, sexual or otherwise, as a non-mutual social duty.74 Even though most men don’t assault women, privileged men can nonetheless gain from a system that makes it reasonable or legitimate to advance their own interests by commanding women’s attention, bodies, and labor without mutual obligation or accountability. Feminist legal scholar Robin West explains that sexual harassment continues to be normalized and excused in a legal and cultural context that covertly discounts and discredits women’s freedom to control access to their bodies.75 While tort law in theory assumes that bodies generally are not up for grabs, in practice it makes sexual harassment hard to remedy by assuming some bodies are naturally or normally welcoming or tolerant of intrusion, so that being grabbed by privileged men tends not to be a cognizable injury.76 The idea that law protects individual freedom by insulating private self-interest from moral accountability reinforces gendered and unequal entitlements. Feminist legal scholar Anita Bernstein analyzes how seemingly formal laws pervasively distribute freedom through status- based stereotypes identifying some people’s self-interested agency as presumptively unruly, deserving public and private constraint, while others’ self-interested agency is presumptively productive, deserving legal discretion and deference despite harmful impact on others.77 As Bernstein explains, “If femaleness or blackness makes a person crazy or angry, then the absence of these traits makes him rational, or his behaviors reasonable and comprehensible.”78 West explains that the law and economics goal of maximizing self-interest free from moral governance effectively justifies laws privileging the interests of those wielding the most private power, regardless of inequality, societal costs, or constraining effects on others.79 According to the welfare-maximizing criterion, “might is innocent” as long it appears free from overt collective moral control, because self-interested action by economic winners is by definition productive, rather than malicious, sadistic, irrational or dangerous.80 Furthermore, by identifying liberty with maximizing private interests, the law and economics orthodoxy justifies interpreting and adapting law to further privilege and protect those who can use private power to constrain others’ self- interest. If a firm can increase profits by giving its workers the choice to lose their job or accept working conditions posing a substantial risk to health or life,81 then that choice can appear to advance personal liberty more than stricter government enforcement of workplace health and safety rules. Indeed, this view of liberty as private interest-maximizing strips law of the moral authority to challenge those presumed to be the natural and normal winners,82 so that unequal power to engage in arbitrary lawlessness is compatible with justice.83 By legitimizing the self-interested power to harm others as deference to individual freedom, the law and economics binary undermines individual liberty overall, while reinforcing longstanding subordination based on gender, race, class, and other identities marked as morally suspect. For example, feminist legal theorists June Carbone, Naomi Cahn, and Nancy Levit explain the consequences of replacing the idea that corporate success requires cooperative teamwork and long term institutional commitments with the theory that efficient corporations should reward amoral individualized self-interest maximizing.84 That management model has led to corporate “masculinities contests” that select leaders who are especially ruthless, narcissistic, and unprincipled.85 The result is an economy where competitive pressures steer businesses toward normalizing unproductive and unlawful practices, including sexual harassment and discrimination, wage theft, and fraud,86 thereby eroding individual freedom and agency as well as societal well- being.