Aff valorization of growth buys into a binary division between economic expansion and distribution that relies on gendered tropes

(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 )

II. Framing the Economy in an Anti-Feminist Double Bind Law and economics wields stealth ideological force through a master narrative that denies the economy is inherently comprised of social and political institutions. The many technical variations of this core law and economics orthodoxy share an overarching conceptual frame positing two distinct goals for law: efficiency and distribution, or in another common terminology, “economic welfare” and fairness. That division is often presented metaphorically as the choice between maximizing or dividing the “economic pie.”37 This binary frame emerged not from rigorous, uncontested theory or falsifiable evidence, but rather from historical and instrumental efforts to brand the neoclassical school of economics as distinctly scientific. 38 On its surface, this division appears to reflect common sense: producing more economic resources differs from giving someone a bigger slice of existing resources. But by staging law’s core tension between more total gain for all and more relative gain for some, this fundamental division obscures and skews the core questions of justice. What gain represents an overall increase, rather than a transfer to partial interests? The frame provides a circular answer: law can distinguish rules and procedures that advance overall net benefit by modeling its rules and procedures on a market defined by rules and processes that prioritize efficiency over distribution. A. Efficiency versus Equality as a Hierarchical Dualism The efficiency-equality dualism echoes and amplifies the equality-difference double bind that confronted feminist antidiscrimination law. As Catharine MacKinnon observed, that liberal

legal dualism offers feminists a losing choice: women can be equal to men, or different from men.39 Either way, men are the standard by which women are measured. If law requires formally equal treatment, then it will not protect against harms particularly likely to affect women, especially those women most disadvantaged by systemic discrimination. If law requires special treatment, in recognition of gender differences affecting women’s bodies or social, economic, and historical position, then law will risk reinforcing the stereotypes, stigma, segregation, and marginalization that has long driven and rationalized systemic gender discrimination. In contrast, those who are most privileged by gender, race, class and other status markers tend to get a double benefit. The dualism’s inherently unequal substantive baseline enables those with privileged status to “have it both ways,” getting protection for their particular bodies and interests as a basic condition of equality and neutrality.40 Frances Olsen explained that law is shaped by hierarchical dualisms, such as reason/emotion, objective/subjective, abstract/contextualized, principled/personalized, where one side is implicitly defined as the essential quality, and the other as the exception or supplement lacking that quality.41 The male/female binary permeates and connects these hierarchical legal dualisms, so that the dominant traits are generally associated with normative masculinity. 42 Feminism can resist law’s losing choices by challenging these dualisms. The dominant trait is thoroughly dependent on its purported opposite, masking the normative and political questions of how law should define and shape what counts as equal, normal, rational, formal, and principled

or otherwise superior.43 For example, by challenging employment law’s masculinized ideal of a worker who normally leaves child-bearing and family care to feminized or racialized others, legal requirements for employers to accommodate family leave or breastfeeding can be viewed as normal, basic working conditions rather than special treatment,44 like providing bathroom breaks or chairs. Like sameness-difference division, any real world application of the efficiency-equity binary deploys covert moral and political judgments. Deciding whether women and men are the same or different in any instance requires judging what substantive qualities are relevant, and why. Similarly, deciding whether a particular law or practice is maximizing and dividing the economic pie requires a prior moral judgment about what substantive qualities, and for whom, count as more pie, and why. Moreover, like other formal legal dualisms, the efficiency-distribution distinction inherently casts the two functions in a hierarchical moral order. Efficiency (or economic welfare) is the dominant and defining norm, and equality (redistribution) is the deviation from that norm. By definition, efficiency (or welfare) maximizes productive gain for the whole, while distribution definition transfers gain to some at the expense of others. This assumed division makes efficiency appear essential and primary, while distribution appears discretionary, secondary, and dependent, because we can only distribute resources that are first produced.45 The binary frame’s skewed choice between efficiency and equality puts feminism in a double bind. Feminist law can either promote efficiency, which would make women’s (and others’) well-being depend on the presumed productive value of their individual tastes, talents, and

experiences, in an economy where productivity need not account for unfairness or gender bias. Or, feminist law can promote redistribution to compensate for women’s (or others’) presumed lack of productive value, taking resources away from more economically valuable uses or users, with the result that society will have fewer resources to support those who are less productive. The binary rests on an implicitly biased assumption that the well-being of women (or others marked by nonnormative gender) constitutes a special political interest or moral question of social distribution that is marginal to aggregate economic well-being. In contrast, this framing defines efficiency to provide a double benefit. By first assuming an efficient economy that normally and neutrally maximizes productivity, laws can rationalize extending greater protections and privileges to the existing economy’s winners as a means of maximizing economic well-being overall. With the economic pie maximized, this theory presumes that more resources will be available to alleviate, the harms borne by those with the smallest share of the economic pie. 46