Market morality sanitizes violence and inequality

(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 )

By framing individual liberty as private power separated from collective morality, the law and economics binary positions legal feminism as a threat to liberty. The idea that equality threatens freedom is a central precept of neoliberalism, melding the purported moral detachment of economic libertarians with the moral fundamentalism of social conservatives.87 That view ignores how legal rules governing the seemingly free market are “permeated with coercive restrictions on individual liberty,” as legal realist Robert Hale famously explained, so that state power routinely and inherently produces market inequalities that are neither natural, consensual, nor necessarily productive.88 The legal division between rational self-interested choice and collective morality is steeped in conventional gender ideologies. The popular culture references to “political correctness” and the “feminist thought police” or even “feminazis” represent feminist moral governance as an especially suspect public intrusion into an imagined pre-existing realm of private individual freedom. Similarly, the term “Nanny State,”89 disparages systems of care and protection as illegitimate disruptions of a more normal, natural, and independent masculine (and racialized and classed) authority. 90 The moral assumptions and practical effects of feminist ideals and strategies should not be immune from careful scrutiny and critique. Yet criticisms of feminist aspirations for moral governance are suspect if assumed to represent tough-minded rationality freed from social and moral commitments. Feminist theorist Susan Fraiman links the stance of strenuous detachment from care and protection to a romantic vision of coolness and independence “epitomized by the modern adolescent boy in his anxious, self-conscious and theatricalized will to separate from the mother” imagined as controlling, moralistic, sentimental, and not sexy.91 Underneath its surface anti-moralism, the law and economics narrative of legal deference to individual self-interest maximizing promotes a moralistic message that people should be individually responsible for advancing their own interests without substantive protection and support from government and law. 92 This naturalizes and moralizes the substantive legal rights and privileges that empower existing market winners, justifying their success not merely as superior self-serving power, but also as productive contributions to a valuable societal “pie.” In that narrative, feminist challenges to harmful private practices, such as date rape or the failure to accommodate workers’ family responsibilities, represent unproductive evasion of the risks and costs of personal choices or even immoral domination of more productive and self-sufficient others. Recent Supreme Court doctrine embraces this vision of liberty as narrow self-interest. A new constitutional paradigm advances what Robin West terms the right to exit.93 Promoted by the Federalist Society, this paradigm grounds individual liberty in an idealized free market, where people are governed not by public values and democratic processes, but by individualized selfinterest in a competition for private control and consumption of scarce resources free from collective obligations. West identifies this paradigm as the basis for newly proposed or established fundamental rights to opt out of public obligations, such as the constitutional right to bear arms for individualized violent self-help, the right to opt out of public health insurance, both at the individual and state level, and workers’ right to opt out of contributing to their workplace union. 94 West explains that these new constitutional rights to individualized self-interest particularly undermine civil rights movements’ efforts to expand democracy and equality through what she terms “rights to enter” systems of public power and protection.95 In particular, First Amendment freedoms have been reconfigured as a constitutional right to refuse civil rights requirements such as employers’ statutory obligation to cover contraceptives in their workers’ health insurance policies.96 Feminism challenges the core law and economics premise of a value-neutral yet value perfecting formal sphere of individual freedom set against a social and political sphere of suspect substantive power. A feminist vision that integrates social and economic well-being can help resist the masculinized, anti-social ideas of freedom, rationality, and productivity that have fueled twenty-first century crises in finance, climate, democracy, public health, and inequality. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being