K - Afropessimism - Michigan7 2020 K Lab.docx - A \u2013 Afropessimism[Michigan Critique Lab Framework Simulation Good Simulated legal debates are crucial

K - Afropessimism - Michigan7 2020 K Lab.docx - A u2013...

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Unformatted text preview: A – Afropessimism [Michigan Critique Lab] Framework Simulation Good Simulated legal debates are crucial for social transformation---teaching legal precision is net-better for eliminating oppression even if one-shot legal solutions don’t work the first time Karl Klare, George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law, “Teaching Local 1330—Reflections on Critical Legal Pedagogy,” (‘11). School of Law Faculty Publications. Paper 167. By now it has begun to dawn that one of the subjects of this class session is how lawyers translate their moral intuitions and sense of justice into legal arguments. Most beginning students have found themselves in the situation of wanting to express their moral intuitions in the form of legal arguments but of feeling powerless to do so. A common attitude of Northeastern students is that a lawyer cannot turn moral and political convictions into legal arguments in the context of case-litigation. If you are interested in directly pursuing a moral and/or political agenda, at a minimum you need to take up legislative and policy work, and more likely you need to leave the law altogether and take up grass roots organizing instead. I insist that we keep the focus on litigation for this class period. After the straw poll, I ask the students to simulate the role of Staughton Lynd‟s legal assistants and to assume that the court has just definitively rejected the claims based on contract, promissory estoppel, and the notion of a community property right. However, they should also assume, counter-factually, that Judge Lambros stayed dismissal of the suit for ten days to give plaintiffs one last opportunity to come up with a theory. I charge the students with the task of making a convincing common law argument, supported by respectable legal authority, that the plaintiffs were entitled to substantial relief. Put another way, I ask the students to prove that Judge Lambros was mistaken—that he was legally wrong—when he concluded that there was no basis in existing law to vindicate the workers‟ and community ‟s rights. In some classroom exercises, I permit students to select All students are asked to simulate the role of plaintiffs‟ counsel and to make the best arguments they can—either because they actually believe such arguments and/or because in their simulated role they are fulfilling their ethical duty to provide zealous representation. A recurring, instant reflex is to say: “it‟s simple—the workers‟ human rights the side for which they wish to argue, but I do not allow that in this session. were violated in the Youngstown case.” I remind the class that the challenge I set was to come up with a common law theory. The great appeal of human rights discourse for today‟s students is that it seems to provide a technical basis upon which their fervent moral and political commitments appear to be legally required. “What human rights?” I ask. The usual answers are (1) “they had a right to be treated like human beings” or (2) “surely there is some human right on which they can base their case.” To the first argument I respond: “well, how they are entitled to be treated is exactly what the court is called upon in this case to decide. Counsel may not use a re-statement of the conclusion you wish the court to reach as the legal basis supporting that conclusion.” To the second response I reply: “it would be nice if some recognized human right applied, but we are in the Northern District of Ohio in 1980. Can you cite a pertinent human rights instrument?” (Answer: “no.”) The students then throw other ideas on the table. Someone always proposes that U.S. Steel‟s actions toward the community were “unconscionable.” I point out that unconscionability is a defense to contract enforcement whereas the plaintiffs were seeking to enforce a contract (the alleged promise not to close the plant if it were rendered profitable). In any case, we have assumed that the judge has already ruled that there was no contract. Another suggestion is that plaintiffs go for restitution. A restitution claim arises when plaintiff gives or entrusts something of value to the defendant, and the defendant wrongfully refuses to pay for or return it. But here we are assuming that Judge Lambros has already ruled that the workers did not endow U.S. Steel with any property or value other than their labor power for which they were already compensated under the applicable collective bargaining agreements. If the community provided U.S. Steel with value in the nature of tax breaks or infrastructure development, the effect of Judge Lambros‟ ruling on the property claim is to say that these were not investments by the community but no-strings-attached gifts given in the hope of attracting or retaining the company ‟s business. At this point I usually give a hint by saying, “if we‟ve ruled out contract claims, and we‟ve ruled property claims, what does that leave?” Aha, torts! A student then usually suggests that U.S. Steel committed the tort of intentional infliction of emotional distress (IIED).15 I point out that, even if it were successful, this theory would provide plaintiffs relief only for their emotional injuries, but not their economic or other losses, and most likely would not provide a basis for an injunction to keep the plant open. In any event, IIED is an intentional tort. What, I ask, is the evidence that U.S. Steel intends the plant shutdown to cause distress? The response that “they should know that emotional distress will result” is usually not good enough to make out an intentional tort. An astute student will point out that in some jurisdictions it is enough to prove that the defendant acted with reckless disregard for the likelihood that severe emotional distress would result. I allow that maybe there‟s something to that, but then shift ground by pointing out that a prima facie requirement of IIED is that the distress suffered go beyond what an “ordinary person” may be expected to endure or beyond the bounds of “civilized behavior.”16 Everyone knows that plants close all the time and that the distress accompanying job-loss is a normal feature of American life. A student halfheartedly throws out negligent infliction of emotional distress, to which my reply is: “In what way is U.S. Steel ‟s proposed conduct negligent? The problem we are up against here is precisely that the corporation is acting as a rational profit-maximizer.” A student always proposes that plaintiffs should allege that what U.S. Steel did was “against public policy.” First of all, I say, “public policy” is not a cause of action; it is a backdrop against which conduct or contract terms are assessed. Moreover, what public policy was violated in this case? The student will respond by saying “it is against public policy for U.S. Steel to leave the community devastated.” I point out once again that that is the very conclusion for which we are contending—it is circular argument to assert a statement of our intended conclusion as the rationale for that conclusion. This dialogue continues for awhile. One ineffective theory after another is put on the table. Only once or twice in the decades I have taught this exercise have the students gotten close to a viable legal theory. But this is not wasted time—learning occurs in this phase of the exercise. The point conveyed is that while law and morals/politics are inextricably intertwined, they are not the same. For one thing, lawyers have a distinct way of talking about and analyzing problems that is characteristic of the legal culture of a given time and place. So-called “legal reasoning” is actually a repertoire of conventional, culturally approved rhetorical moves and counter-moves deployed by lawyers to create an appearance of the legal necessity of the results for which they contend. In addition, good lawyers actually possess useful, specialized knowledge not generally absorbed by political theorists or movement activists. Legal training sensitizes us to the many complexities that arise whenever general norms and principles are implemented in the form of rules of decision or case applications. Lawyers know, for example, that large stakes may turn on precisely how a right is defined, who has standing to vindicate it, what remedies it provides, how the right is enforced and in what venue(s), and so on. We are not doing our jobs properly if we argue, simply, “what the defendant did was unjust and the plaintiff deserves relief.” No one needs a lawyer to make the “what the defendant did was unjust” argument. As Lynd‟s account shows, the workers of Youngstown did make that argument in If “what the defendant did was unjust” is all we have to offer, lawyers bring no added value to the table. Progressive students sometimes tell themselves that law is basically gobbledygook, but that you can assist movements for their own, eloquent words and through their collective resistance to the shut-downs. social change if you learn how to spout the right gobbledygook. In this view of legal practice, “creativity” consists in identifying an appropriate technicality that helps your client. But in the Youngstown situation, we are way past that naïve view. There is no “technicality” that can win the case. In this setting, a social justice lawyer must use the bits and pieces lying around to generate new legal knowledge and new legal theories. And these new theories must say something more than “my client deserves to win” (although it is fine to commence one‟s research on the basis of that moral intuition). The class is beginning to get frustrated, and around now someone says “well, what do you expect? This is capitalism. There‟s no way the workers were going to win.” The “this-is-capitalism” (“TIC”) statement sometimes comes from the right, sometimes from the left, and usually from both ends of the spectrum but in different ways. The TIC statement precipitates another teachable moment. I begin by saying that we need to tease out exactly what the student means by TIC, as several interpretations are possible. For example, TIC might be a prediction of what contemporary courts are most likely to do. That is, TIC might be equivalent to saying that “it doesn‟t matter what theory you come up with; 999 US judges out of 1,000 would rule for U. S. Steel.”17 I allow that this is probably true, but not very revealing. The workers knew what the odds were before they launched the case. Even if doomed to fail, a legal case may still make a contribution to social justice if the litigation creates a focal point of energy around which a community can mobilize, articulate moral and political claims, educate the wider public, and conduct political consciousness-raising. And if there is political value in pursuing a case, we might as well make good legal arguments. On an alternative reading, the TIC observation is more ambitious than a mere prediction. It might be a claim that a capitalist society requires a legal structure of a certain kind, and that therefore professionally acceptable legal reasoning within capitalist legal regimes cannot produce a theory that interrogates the status quo beyond a certain point. Put another way, some outcomes are so foreign to the bedrock assumptions of private ownership that they cannot be reached by respectable legal reasoning. A good example of an outcome that is incompatible with capitalism, so the argument goes, is a court order interfering with U.S. Steel ‟s decision to leave Youngstown. This reading of the TIC comment embodies the idea that legal discourse is encased within a deeper, extra-legal structure given by requirements of the social order (capitalism), so that within professionally responsible legal argument the best lawyers in the world could not state a winning theory in Local 1330. Ironically, the left and the right in the class often share this belief. I take both conservative and progressive students on about this. I insist that the claim that our law is constrained by a rigid meta-logic of capitalism—which curiously parallels the notion that legal outcomes are tightly constrained by legal reasoning—is just plain wrong. Capitalist societies recognize all sorts of limitations on the rights of property owners. Professor Singer‟s classic article catalogues a multitude of them.18 The claim is not only false, it is a dangerous falsehood. To believe TIC in this sense is to limit in advance our aspirations for what social justice lawyering can accomplish. Now the class begins to sense that I am not just playing law professor and asking rhetorical questions to which there are no answers. The students realize that I actually think that I have a theory up my sleeve that shows that Judge Lambros was wrong on the law. If things are going well, the students begin to feel an emotional stake in the exercise. Many who voted in the straw poll that the plaintiffs deserved to win are anxious to see whether I can pull it off. Other students probably engage emotionally for a different reason—the ones who have been skeptical or derisive of my approach all term hope that my “theory,” when I eventually reveal it, is so implausible that I will fall flat on my face. I begin to feed the students more hints. One year I gave the hint, “What do straying livestock, leaking reservoirs, dynamite blasting, and unsafe products have in common?”—but that made it too easy. Usually my hints are more oblique, as in “does anything you learned about accident law ring a bell?” Whatever the form, the students take the hints, and some start cooking with gas. Over the next few minutes, the pieces usually fall into place. The legal theory toward which I have been steering the students is that U.S. Steel is strictly liable in tort for the negative social effects of its decision to disinvest in Youngstown. I contend that that is what the law provided in Ohio in 1980, and therefore a mechanism was available for the District Court to order substantial relief. A basic, albeit contested theme of modern tort law, which all students learn in first year, is that society allows numerous risky and predictably harmful activities to proceed because we deem those activities, on balance, to be worthwhile or necessary. In such cases, the law often imposes liability rules designed to make the activity pay for the injuries or accidents it inevitably causes. For more than a century, tort rules have been fashioned to force actors to take account of all consequences proximately attributable to their actions, so that they will internalize the relevant costs and price their products accordingly. The expectation is that in the ordinary course of business planning, the actor will perform a cost/benefit analysis to make sure that the positive values generated by the activity justify its costs. Here, I remind the students of the famous Learned Hand Carroll Towing formula19 comparing B vs. PL, where B represents the costs of accident avoidance (or of refraining from the activity when avoidance is impossible or too costly); and P x L (probability of the harm multiplied by the gravity of the harm) reflects foreseeable accident costs.20 The tort theory that evolved from this and similar cost/benefit approaches is called “market deterrence.” The notion is that liability rules should be designed to induce the actor who is in the best position to conduct this kind of cost/benefit analysis with respect to a given activity to actually conduct it. Such actors will have incentives to make their products and activities safer and/or to develop safer substitute products and activities.21 Actors will then pass each activity‟s residual accident costs on to consumers by “fractionating” and “spreading” such costs through their pricing decisions. As a result, prices will give consumers an accurate picture of the true social costs of the activity, including its accident costs. Consumers are thus enabled to make rational decisions about whether to continue purchasing the product or activity in light of its accident as well as its production costs. In principle, if a particular actor produces an unduly risky product (in the sense that its accident costs are above “market level”), that actor‟s products will be priced above market, and he/she will be driven out of business.22 Tort rules have long been crafted with an eye toward compelling risky but socially valuable activities or enterprises to internalize their external costs. My examples—to which the students were exposed in first year—are the ancient rule imposing strict liability for crop damage caused by escaping livestock;23 strict liability under the doctrine of Rylands v. Fletcher for the escape of dangerous things brought onto one ‟s property;24 strict liability under Restatement (Second) § 519 for damage caused by “abnormally dangerous activities” such as dynamite blasting;25 and most recently, strict products liability.26 Of course, there are many exceptions to this approach. For example, “unavoidably unsafe” or “Comment k products” are deemed non-defective and therefore do not carry strict liability. And of course the U.S. largely rejected Rylands. Why was that? Because, as was memorably stated in Losee v. Buchanan: “We must have factories, machinery, dams, canals and railroads. They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization.”27 In assuming that entrepreneurial capitalism would be stymied if enterprises were obliged to pay for the harms they cause, the Losee court accepted a strong version of TIC. Time permitting, I touch briefly on the debate about whether the flourishing of the negligence principle in the U.S. subsidized 19th century entrepreneurial capitalism,28 the possible implications of the Coase Theorem for our discussion of Local 1330,29 and the debate about whether it is appropriate for courts to fashion common law rules with an eye toward their distributive as well as efficiency consequences.30 With this as background, I argue that the District Court should have treated capital mobility—investors‟ circulation of capital in search of the highest rate of return—as a risky but socially valuable activity warranting the same legal treatment as straying cattle and dynamite blasting. Capital mobility is socially valuable. It is indispensable for economic growth and flexibility. Capital mobility generates important positive externalities for “winners,” such as economic development and job-creation at the new site of investment. However, capital mobility also predictably causes negative external effects on “bystanders” (the ones economists quaintly label “the losers”). We discussed some of these externalities at the outset of the class—the trauma associated with income interruption and pre-mature retirement, waste or destruction of human capital, multiplier effects on the local economy, and social pathologies and community decline of the kind experienced in Youngstown. The plaintiffs should have argued that capital mobility must internalize its social dislocation costs for reasons of economic efficiency, and that this can be accomplished by making investors strictly liable in tort for the social dislocation costs proximately caused by their capital mobility decisions. An investor considering shifting capital from one use to another will compare their respective rates of return. In theory, the investment with the higher return is socially optimal (as well as more profitable for the individual investor). The higher-return investment enlarges the proverbial pie. But investors must perform accurate comparisons of competing investment opportunities in order for the magic hand of the market to perform its magic. A rational investor bases her analysis primarily on price signals reflecting estimated rates of return on alternative investment options. This comparison will yield an irrational judgment leading to a socially suboptimal investment decisio...
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