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Unpaid labor

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In Birth Strike, Jenny Brown argues for an analysis of the politics of reproductive rights that is rooted not in religious or moral concerns, but in economics—specifically, the economic power of women’s unpaid labor.

The standard explanation for anti-abortion politics in the United States is that politicians are appealing to conservative “values voters.” It’s easier to argue that when abortion is at issue, but as birth control has come under increasing fire, the explanation that politicians are buckling to grassroots pressure has become less reliable. The U.S. may be a religious country, but 99 percent of sexually active U.S. women have used birth control. According to surveys, even among men and women who oppose abortion, 80 percent support access to contraception. Far from pandering to a religious base, in attacking birth control, politicians are taking a stand that is wildly unpopular.

Planned Parenthood, long under attack for providing abortions, calls this “the glaring contradiction at the heart of the anti-choice movement … The same forces who oppose abortion also vigorously oppose expanding access to the information and services that prevent unintended pregnancy and reduce the need for abortion.”

But it’s only a contradiction if the goal is to reduce abortions. If the goal is to increase childbearing, both abortion and contraception would be targets, along with accurate sex education.

Brown, Birth Strike, page 4

And why would the goal be to increase childbearing? Brown continues:

A higher birth rate does serve an economic goal: An ever-expanding workforce raised with a minimum of public spending and a maximum of women’s unpaid work. Why would employer’s pay for parental leave if they can push us into maternity leave for free? Why would corporations pay taxes for a national childcare system if families can be induced to take that burden upon themselves? But women are refusing—by some measures our birth rate is the lowest it has ever been—so they can only achieve that goal if they further deprive us of reproductive control.

Brown, Birth Strike, page 11

This is one of those analyses that seems so obvious as soon as you see it, and leaves you agog that you couldn’t see it before. Brown provides gobs of data to back up her case here (including many a conservative politician and thinker saying the quiet part loud), but it didn’t take much to convince me. I’ve long been certain that restrictions on reproductive rights were not really about faith, but about controlling women—but I never took the next step and asked why women needed to be controlled. Brown does, and the answer is clear: to wrest as much economic value from them as possible.

Most politicians portray themselves as “pro-family,” but none do it more vigorously than conservative Republicans. This might seem ironic, as it is the most loudly pro-family who try to block increases to the minimum wage, cut Head Start childcare and school lunch programs, slash welfare payments for parents and health care for children, oppose any kind of family leave (even unpaid), and generally make life less livable for children and families.

But it is not just hypocrisy, and it is worth decoding. What “pro-family” really means is families instead of government. Cut government, and put the work on families. And by “families,” they mean women, and women’s unpaid labor.

Brown, Birth Strike, page 34

It’s hard for me not to see my own choices in Brown’s critique. I do not have children; I never wanted to be a mother. As a close friend oft reminds me, at 40 years old, I am among the first generation of women for whom access to contraception and abortion has been a given my whole life. My choice was not an economic one. But I also grew up keenly aware of how hard it is to balance motherhood and work, and I entered the workforce at a time when paid maternity leave was even less generous than it is today. Brown argues that women have been participating in an uncoordinated work slowdown for years now, simply by electing to have fewer children, and that it’s past time to organize into a proper strike. I’ve thought about it, and I can seem to muster only one response to that calling: I’ll see you on the picket line.

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If you want to see this on an even longer timeline I'd recommend https://www.akpress.org/calibanandthewitch.html (and if you'd like a video synopsis by one of my favorite YouTubers: https://youtu.be/tmk47kh7fiE)
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I need to read this book

Elizabeth Warren as a law teacher


Meagan Day, who writes for Jacobin, is criticizing Elizabeth Warren for having the temerity to characterize herself as having been a teacher:

A few comments:

(1) In Warren’s case, the fact that professors teach students is not merely a technical detail: I have encountered many of Warren’s former students in various parts of legal academia and the legal profession, and I’ve been struck by how many of them describe her as the best teacher they had in law school.

The top researchers at American law schools, especially elite law schools — and Warren was one of the leading persons in her fields — often include people who are indifferent or flatly terrible teachers, because in legal academia there are almost no significant professional rewards for outstanding teachers, as opposed to outstanding researchers.

From everything I’ve ever heard about her, it seems Warren always put a tremendous amount of effort into her teaching, because she thought it was an important aspect of her work. A little anecdote about this: I once heard how a certain law professor, who had just joined the faculty of a certain hyper-elite law school located in New Haven, CT, was welcomed to the institution by then-dean Guido Calabresi. After a long talk about his research agenda, the young fresh fellow asked Calabresi about teaching. Calabresi smiled and said, “Teaching is like hitting a home run at the faculty-student softball picnic. Your career here will be judged by what you publish. And if you can hit a home run at the picnic, well that’s nice too.”

In other words, Warren’s attitude toward her teaching was not merely praiseworthy, but counter-cultural, in a way that should be emulated throughout academia. It was the precise opposite of the “folksy” pose that Day assumes it represents.

(2) Speaking of the counter culture, it’s difficult to convey how far upstream Warren had to swim to get hired onto the HLS faculty. Legal academia is positively obsessed with elite credentialing: the vast majority of tenure track professors at HLS got their law degrees at either Harvard or Yale, with the academic diversity component being provided by places like Columbia and Stanford. For a Rutgers law school graduate to become a chaired professor at HLS is roughly equivalent to someone who grew up in Bronx public housing to become a member of the Porcellian Club.

In addition, Warren entered legal academia when there were still very few women on law school faculties: In 1978, when she got her first job, most of the elite law schools had hired their first woman faculty member ever within the last decade, and the large majority of tenure track law professors — the men deciding whether to allow Warren to join them — had never had a woman colleague, let alone been taught by a woman when they themselves were law students.

Unlike almost all people who actually use this phrase (Warren herself doesn’t) Warren really did “come from nothing,” at least relative to the typical Ivy League law professor: her family was barely hanging on to the lower middle class for much of her childhood. She was an Okie Sunday School teacher and former waitress who dropped out of college to get married at age 19 to her high school boyfriend — that is, someone who might as well be coming from the Andromeda galaxy in comparison to the backgrounds of almost all her colleagues.

(3) Finally, it’s worth noting that Warren took the exact opposite of the easy path to legal academic success. Warren began her scholarly career writing in the conventional law and economics genre, which in the 1980s was the ideal venue for young law professors who wanted to climb the rungs of academic success, as it combined interdisciplinary cachet with libertarian politics. But Warren soon veered off that path altogether, because her empirical research convinced her that her fundamental ideas about the relationship between law and economics were actually mistaken:

Warren soon became a proponent of on-the-ground research into how people respond to laws. Her work analyzing court records and interviewing judges, lawyers, and debtors, established her as a rising star in the field of bankruptcy law.[25] According to Warren and economists who follow her work, one of her key insights was that rising bankruptcy rates were caused not by profligate consumer spending but by middle-class families’ attempts to buy homes in good school districts.[26] Warren worked in this field alongside colleagues Teresa A. Sullivan and Jay Westbrook, and the trio published their research in the book As We Forgive Our Debtors in 1989. Warren later recalled that she had begun her research believing that most people filing for bankruptcy were either working the system or had been irresponsible in incurring debts, but that she came to the conclusion that such abuse was in fact rare and that the legal framework for bankruptcy was poorly designed, describing the way the research challenged her fundamental beliefs as “worse than disillusionment” and “like being shocked at a deep-down level.”

Suffice it to say that, at least in the legal academy, this sort of conversion experience represents a rare triumph of intellectual scrupulousness over careerist considerations.

Warren, in short, is an authentic example of someone from a humble background actually storming the gates of America’s most elite institutions, because she was so superbly talented at every aspect of her work that she overcame the massive class and gender barriers designed to keep people like her out of those places.

To treat her authenticity as some sort of faux-populist pose is either ignorant or dishonest in the extreme.


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READ: Prepared Testimony Of Ukraine Ambassador Ousted By Trump

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Former U.S. Ambassador to Ukraine Marie Yovanovitch told Congress Friday, according to a prepared testimony obtained by the Washington Post, that she was recalled suddenly from her post in May, after previously being told by the State Department she’d stay there until at least next year.

Yovanovitch is currently being interviewed by House investigators behind closed doors as part of Democrats’ impeachment inquiry. She was removed by President Trump after months over prodding by his personal attorney Rudy Giuliani, who claimed that she was disloyal to Trump and that she was blocking the opening of a Ukraine probe into the Bidens.

In the statement, the ousted ambassador told the House that the State Department faces the prospect of being “irreparably” harmed under the current administration.

Yovanovitch’s prepared statement said that she was suddenly recalled from Kyiv at the end of April 2019, told to return to Washington “on the next plane.”  

Upon her arrival in the United States, according to the statement, Deputy Secretary of State John Sullivan told Yovanovitch that she was the victim of a “concerted campaign” and that the State Department “had been under pressure” from Trump to remove her since summer 2018.

“Although I understand that I served at the pleasure of the President, I was nevertheless incredulous that the U.S. government chose to remove an Ambassador based, as best as I can tell, on unfounded and false claims by people with clearly questionable motives,” Yovanovitch wrote.

The ousted ambassador described herself as targeted by unnamed associates of Rudy Giuliani’s who apparently “believed that their personal financial ambitions were stymied by our anti-corruption policy in Ukraine.”

Though Yovanovitch did not refer to any associates of Giuliani’s by name, Lev Parnas and Igor Fruman reportedly lobbied to change the management of a state-owned Ukrainian oil and gas company part of a drive they were undertaking to engage in potentially lucrative energy deals with the Eastern European nation.

In the statement, Yovanovitch categorically denied a series of accusations that originated with the former general prosecutor of Ukraine Yuriy Lutsenko — an official who faced sharp criticism from Yovanovitch for his failure to fight corruption. 

Lutsenko alleged  — via The Hill opinion contributor John Solomon — that Yovanovitch had given him a “do not prosecute list.” He also claimed that an investigation needed to be conducted into former vice president Joe Biden’s activities in Ukraine with respect to his son Hunter’s position on the board of a Ukrainian gas company.

Yovanovitch denied Lutsenko’s allegations as “completely false,” and added that separate allegations from Trumpworld of “disloyalty” to the President were “equally fictitious.”

Yovanovitch added that she had not been involved in discussions surrounding the Trump administration’s decision to withhold military aid to Kyiv. That, she noted, came after her departure.

“I must share the deep disappointment and dismay I have felt as these events have unfolded,” she wrote.

“Today, we see the State Department attacked and hollowed out from within,” she added. “State Department leadership, with Congress, needs to take action now to defend this great institution, and its thousands of loyal and effective employees.”

Yovanovitch went on to say that, under her tenure, the US Embassy in Kyiv put forth efforts that were “intended, and evidently succeeded, in thwarting corrupt interests in Ukraine, who fought back by selling baseless conspiracy theories to anyone who would listen.”

“Sadly, someone was listening, and our nation is the worse off for that,” she concluded.

Read the full written testimony, via the Post, below:

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Being Gay, In High School and Wearing A Homecoming Crown


On National Coming Out Day, 2007 gay homecoming queen tells her story and salutes 2019 gay homecoming royalty

Deja Foster was openly gay and embraced by classmates when she was crowned homecoming queen at Wooddale High School 12 years ago. Photo provided by Foster.

By Deja Foster

It may have made the news had we done it: I, an openly gay female basketball player at Wooddale High School, and my friend, a popular gay male student, were chosen homecoming queen and king in 2007, and conspired to switch crowns at the ceremony.

That may sound funny, but there was a lot of pain leading up to it. That memory came back to me as I saw news reports about Brandon Allen being named as White Station High School Homecoming Royalty on Sept. 27.

I felt joy when I saw the photo of Brandon, 17, living and walking in his truth, and his mom with a shirt that read, “The world has bigger problems than boys who kiss boys and girls who kiss girls.” Shelby County Schools Supt. Joris Ray and White Station principal Carrye Holland also voiced their support for him. It was beautiful to me.

Brandon Allen was crowned White Station High School Royalty on Sept. 27, as his mother watches. Photo by Emmett Campbell.

My early experience wasn’t quite as affirming.

In 2005, the beginning of my 11th grade year, I transferred to Wooddale High School. I was a glaring baby gay — like noticeably. I wore some too big dickeys with oversized white shirts with collars, my hair braided to the back, and some chucks (Converse sneakers). I was still finding my style. Thank God for growth!

I wasn’t in the closet. My mama had pulled me right on out that thing the year before. When I arrived at Wooddale, I already had a girlfriend who also attended the school. We were a cute little couple and would walk around arm-in-arm after class, maybe catch up between classes, but nothing crazy in the form of PDA (public displays of affection).

But I, along with the other openly gay girls — maybe five or six of us at the school — became the target of rumors that we were a gang. We were accused of being in GTO (Gays Taking Over). This allegedly was a gang dedicated to turn all the straights into gays because that’s how that works, you know?

Yes, I know that sounds dumb. You know that agenda your hotep uncle is always talking about? Yeah, sounds a little like that. Don’t think I ever met a member of GTO by the way, but hey, I digress.

Well, the rumor took root. About a month into the school year, we all were called to the office and informed that we were on overnight suspension and that our parents would have to come to the school the next morning to “clear” the suspension with a meeting of some sort. In this meeting, our principal told our parents that we were all a part of GTO: Gays Taking Over.

I laugh every time I type that. Like, who thought of that?

Some of the parents didn’t know their child was gay. One of the girls even paid a guy at the gas station to pose as her dad, because she was afraid of how her parents would react. We weren’t guilty of what we were being accused of, and there was no evidence to support it.

Deja Foster, wearing 32, was a star athlete at Wooddale High School, where classmates selected her as homecoming queen. Photo provided by Foster.

Well, my mama, Elizabeth Foster, wasn’t having it. I can’t remember what she said word for word, but she essentially said, “I know I’m not at this school missing work because my daughter is gay. Not because she has actually done anything, but because she is gay. That is not right and I don’t appreciate you singling out not just my daughter, but all of our daughters for being gay. You owe them an apology.”

When she said that, other parents started to chime in. The principal tried to justify her concerns, including saying that my girlfriend and I walked arm-in-arm. The justifications fell on deaf ears. The meeting ended with my mom telling her if she got called up to that school again for some more crap like that, it wouldn’t be pretty.

My coming out story

I feel like I always knew I was gay, I just didn’t have the language to express it. I gravitated toward “boyish” things. I never wanted to be the girl when we reenacted things while playing. I enjoyed sports. Hated skirts and dolls. I have always felt more comfortable in boys’ clothes.

As I said before, my mama did not allow me to stay in the closet for very long. I was in there for two, maybe three weeks before she said, “Hey there buddy, want to come out of there?”

I had a girlfriend when I was in the 10th grade, but did not tell my mom. Prior to that, I had a boyfriend, with whom I’d broken up before he went into the military. My mom loved him and so did I. He was a great guy, just not my type.

My two worlds clashed during my sophomore year.

My ex-boyfriend, who was home from overseas, stopped by to see me. I was being a little jackass, for a lack of better words, so the entire time that he was there, I stayed in my room talking on the phone to my girlfriend. We had been “going together” for less than three weeks.

My mom came into my room and was like, “Why did you treat Carl like that?” In the midst of asking the question, she asked who I was talking to on the phone and why was I talking to that person “like I’m a little boy or something?”

I rushed off the phone and instantly answered, “No one!” I later went into the bathroom to get some privacy and I called my girlfriend back. My mom burst in and again asked who was on the phone. I hung up and said no one.

She snatched my phone out of my hand and called the last number dialed. “Who is this?,” she asked in a not-so-pleasant tone. I am not sure what my girlfriend said, but my mom started cursing. Let’s just say that was our last day going together. I did not appreciate her being disrespectful to my mom.

After getting off the phone, my mom came into my room and asked, “Do you like girls?” My response: “I love everybody, Mama.”

She looked me dead in the eye and said I knew what she meant. I told her that I did. I thought she would respond quite fine, and boy was I wrong.

She told me I was sick, and asked whether I wanted to be a man, and whether she had to buy me suits and take me to the barbershop. She made me go to church every day for about a week and a half to pray away that sickness.

I was hurt because I was a good kid, and just like that, I was being damned to hell by my mom. It hurt like hell, and we fought about it for a long time because she raised me to fight for what I believe in, and I knew there was nothing wrong with me. I was going to live my truth whether she liked it or not.

Deja Foster in 12th grade at Wooddale High School. Photo provided by Foster.

She forbade me from wearing boy clothes until I got out of her house, although that was my clothing of choice and she was fine with it prior to her finding out my sexual preference.

Now, while I do not like how that scene played out, my mother did her work. We fought and we eventually got to the point where we were good. She is now my biggest fan and is grateful for who I am through it all. She has apologized.

I am not painting my mother as a monster, but more as a loving mother who got it wrong initially and eventually worked through her homophobia. It’s a problem that plagues many black families today. A lot of parents don’t make it to that second stage.

And in that moment at that meeting with the principal, she was in a state of acceptance and fought for me and my friends.

The path to becoming a homecoming queen

Still, I was fearful and angry. I thought that this would be my life, as a target. It was hard for me to trust the administration after that. I had a nasty taste in my mouth for Wooddale. I was only one month in, really, and I was being demonized for who I was, for living my truth.

Things got better, though. I was a “star athlete” and have an ability to connect with people, so Wooddale turned out to be an affirming space for me.

Only the administration had a problem with my gayness. The students and the teachers embraced me and affirmed me for how I showed up every day.

In 2007, during my senior year, I ran for basketball homecoming queen. My friend, Brian Hall, who also happened to be gay, ran for homecoming king.

I ran because I was fairly popular and I played basketball. I had never done anything like that before, so I was like, “Why not?” He ran because he was very popular, probably the most popular person in our high school! Everyone loved Brian and got along with him. We were pretty close. We spent a lot of time hanging out.

Left: Brian Hall and Deja Foster. Right: Brian, homecoming king , wears a red crown and Deja, far right, wears a glittery crown at Wooddale High School’s basketball homecoming in 2007. Photos provided by Hall.

As we began to launch our campaigns, and I use the word “campaigns” loosely, we started talking about how funny it would be if we switched our crowns if we won. We agreed that we would and started telling our classmates. Well, word spread pretty quickly and we were voted basketball homecoming king and queen.

I can’t remember if it was right before or right after we found out that we had won, but the principal alerted us that she knew our tea; that we were planning on switching our crowns. She said if we did, we would be expelled for the remainder of the school year.

For a minute, I thought about being a rebel and doing it anyway, but we decided that the biggest statement was the fact that a masculine of center gay girl and a flamboyantly gay guy just won homecoming queen and king for simply being themselves. I was confused why we would be expelled for such a petty act, but it is what it is. I didn’t understand it then and I still don’t understand it now.

The reactions were super dope in the Wooddale gym that day. People were cheering us on. And when we went out into the hallway after being announced, folks were waiting on us to switch crowns, but we were like, nah, we didn’t want to get expelled. We didn’t really sweat it though. We were just happy that we won.

Celebrating progress, and being proud of who you are

Unlike Brandon, I didn’t put much thought into what I wore that night. I was hoping I could be presented in my basketball uniform because we had a game that day. My dress was a hand-me-down from someone that my mom knew. It was cute but I wasn’t stoked I had to wear a dress.

But Brandon was a star in his glittering gown. I love the fact that this kid made such a statement for just being who he is.To see the love Brandon’s classmates have for him, so much so that they voted him to Royalty Court, was wonderful. I appreciate the leadership in the school, specifically the principal, Carrye Holland, and how she affirmed Brandon. It absolutely warmed my heart. We need more leadership like it.

I felt proud that this kid gets to be just that, a kid, in whatever way that Brandon wants. Reading his story immediately took me back to my time at Wooddale. So I felt pain because of my experience, but joy because it showed what a difference time could make.

This moment showed us two things; that we have made progress, and that we still have such a long way to go in eliminating homophobia.

The way some adults attacked Brandon on social media angered me, and the justifications made me sick. Homophobia is not OK!

I look forward to the day when stories like Brandon’s aren’t national news. He was just doing what was natural to him, and, as he said, he wanted to be recognized for the queen that he is.

Deja Foster

Deja Foster is a client service associate with Fish and Associates, an all female financial planning firm in Memphis. She is pursuing a master’s in financial planning and counseling at the University of Alabama.

Where Do We Go From Here?

CELEBRATE: Friday marks the 31st National Coming Out Day. “One out of every two Americans has someone close to them who is gay or lesbian. For transgender people, that number is only one in 10,” says the Human Rights Campaign.

READ: The HRC’s 2018 LGBTQ Youth Report found that “Only 26 percent say they always feel safe in their school classrooms — and just five percent say all of their teachers and school staff are supportive of LGBTQ people.” Read the report. Find more resources about coming out here.

GET CONNECTED: OUTMemphis is an education and advocacy organization for the LGBTQ community across the Mid-South.

ADVOCATE: GLSEN works to create safe and affirming K-12 school environments for students “regardless of sexual orientation, gender identity, or gender expression.”

This story is brought to you by MLK50: Justice Through Journalism, a nonprofit reporting project on economic justice in Memphis. Support independent journalism by making a tax-deductible donation today. MLK50 is also supported by the Surdna Foundation, the Southern Documentary Project at the Center for the Study of Southern Culture and Community Change.

Got a story idea, a tip or feedback? Leave us a voice mail message at 901–602–6868 or send an email to mlk50@mlk50.com.

Being Gay, In High School and Wearing A Homecoming Crown was originally published in MLK50: Justice Through Journalism on Medium, where people are continuing the conversation by highlighting and responding to this story.

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It Took Decades, But The Anti-New Deal Crusaders Have Triumphed

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The American judiciary has been transformed over the past generation. Until recently, liberals were accustomed to thinking of the Supreme Court as an ally. Under Chief Justice Earl Warren in the 1950s and 1960s, the Court struck down school segregation in Brown v. Board of Education (1954), cemented the doctrine of one person, one vote in Baker v. Carr (1962), established a constitutional right to privacy in Griswold v. Connecticut (1965), along with dozens of other legal and constitutional protections that most Americans take for granted today.

But something happened, starting in the 1970s.

Between 1976 and 1999, almost half of all sitting federal judges attended the Manne Economic Institute for Federal Judges, a “training program” in economic thought. The program was the brainchild of Henry G. Manne, a conservative legal scholar and activist who was one of the founding fathers of the discipline of “law and economics,” which sought to incorporate libertarian free-market ideology into legal theory and practice. The effect of Manne’s program on American jurisprudence was profound; scholars have found that judges who attended the Manne seminars issued more conservative rulings in civil cases and imposed harsher criminal penalties in criminal cases than their non-Manne peers.

The Supreme Court, too, lurched to the right. The “liberal” Supreme Court was very much a product of the mid-twentieth century. Starting in the mid-1970s and accelerating in the 2000s, the Supreme Court issued reactionary opinion after reactionary opinion, restricting labor rights, loosening antitrust regulation, drowning American politics in corporate cash, and even restricting the very right to vote itself. None of this has been accidental.

The American legal system has been profoundly transformed from the top down by right-wing activists and institutions. New legal doctrines have been developed, which operate on assumptions at odds with the New Deal state. Originalism and original intent have been written about at length, in no small part because the late Supreme Court justice Antonin Scalia, one of the right-wing leaders on the Court, was an outspoken proselytizer of originalism. But originalism, aside from Scalia’s endorsement, has been in many respects the junior partner in American jurisprudence’s lurch to the right over the past generation to a legal doctrine that emphasized the logic of the “free market” that was first developed by a group of scholars clustered around the University of Chicago in the 1950s. This group called itself the law and economics movement.

But originalism, aside from Scalia’s endorsement, has been in many respects the junior partner in American jurisprudence’s lurch to the right over the past generation to a legal doctrine that emphasized the logic of the “free market” that was first developed by a group of scholars clustered around the University of Chicago in the 1950s.

Law and economics relied on the financial generosity of right-wing donors and philanthropic foundations in order to survive and flourish; by the 1980s, even some liberals began to tacitly support the law and economics approach as an alternative to left legal analysis. But law and economics as a scholarly approach would have had a much more limited impact if it were not for another product of right-wing philanthropy: the Federalist Society, a club for right-wing law students that would produce reliable ideological cadres to staff positions in the courts and state and federal bureaucracies to help put these ideas into practice.

The result has been a remarkably effective long-term campaign to roll back the hated New Deal state. We now live in the America these movements have created.

Law and economics as a legal theory is predicated on a relatively straightforward idea. Transparently, it’s in the name: Adherents of the law and economics school of thought support using economic theory for legal analysis. This approach isn’t inherently right wing. There are ways to ground legal scholarship on economic theory that are not necessarily predicated on free market fundamentalism — Marxist legal theory (a tradition which has almost no adherents in the United States) stresses that the law in capitalist societies is a tool of economic domination for wealthy elites. Even the basic analytical claim of law and economics — that laws and regulations should be assessed based on their economic efficiency — does not automatically imply a radical deregulatory and pro-monopoly agenda. But that claim was never the purpose of law and economics — from its very beginnings in the 1940s and 1950s, the discipline had a clear political thrust: regulation is bad, markets are good.

Law and economics was, from its beginnings down through to today, understood to be a tool by right-wing opponents of socialism, communism, and New Deal liberalism to reverse the hated “collectivist” administrative state. Its wealthy adherents ponied up the dough to subsidize the spreading of its gospel in law and public policy schools across the United States. The John M. Olin Foundation, the William Volker Fund, the various Koch family foundations, even the Charles R. Walgreen Foundation — founded by drug store magnate Charles Walgreen in the early 20th century — have all helped to shape the very foundations of American jurisprudence and public policy. And not for the better.

*  *  *

Private foundations and philanthropic support have been integral to American higher education since the development of private foundations as a philanthropic instrument at the beginning of the 20th century. The Ford Foundation alone awarded nearly $50 million in grants to colleges and universities from 1951 through 1954, although insofar as Ford had an ideological agenda, it was quintessential Cold War liberalism. (The Ford Foundation enjoyed patronage from, among other sources, the Central Intelligence Agency.) Conservatives, too, have been attempting to use donations to influence higher education throughout much of the 20th century. William F. Buckley, Jr. famously advised Yale alumni to use the power of donations to influence curricula in a more pro-God and pro-capitalist direction in his debut 1951 book “God and Man at Yale.” Buckley was not, however, the first to try to harness the power of the purse to influence academic culture in a rightward direction.

Charles Walgreen, the drugstore magnate, forced his niece to withdraw as an undergraduate from the University of Chicago in 1935, on the grounds that the faculty there were exposing her to communism and “free love.” Walgreen’s charge sparked an Illinois state Senate investigation, which descended into a media circus and ended inconclusively. So Walgreen took a different tact. He set up the Charles R. Walgreen Foundation for the Study of American Institutions in June 1937 “to foster greater appreciation of American life and values among University of Chicago students.” The foundation’s support was initially directed towards the political science department and included funding for an endowed professorship, but the position went unfilled for nearly twenty years because the Walgreen Foundation consistently vetoed the department’s candidates on the grounds of political unreliability.

In the mid-1950s, however, the Walgreen Foundation transferred its money over to the Chicago Graduate School of Business, where economics professor George Stigler, a founding member of the libertarian Mont Pelerin Society, leveraged the foundation’s support to build up an aggressive anti-statist economics program. This was the origin of the Chicago school of economics, of which law and economics was a major constitutive component.

One of the earliest and most influential law and economics scholars, John McGee, received support from the Walgreen Foundation; his 1958 article on predatory pricing, published in the debut issue of the Journal of Law and Economics — itself founded by University of Chicago law professor Aaron Director, who was also Milton Friedman’s brother-in-law — was a landmark in the development of law and economics, and betrayed its ideological assumptions. McGee argued, based on a distorted understanding of the business history of the Standard Oil Company, that predatory pricing — the practice of undercutting competitors by charging very low prices in order to drive them out of business — was inherently economically irrational and therefore does not exist as a business practice. (A recent critical review of McGee concluded that he “presents no actual price data to support his sweeping conclusions” and that his article suffers from a “general lack of empiricism.”) McGee’s article, despite its flaws, was eventually cited by the Supreme Court in 1986 in Matsushita v. Zenith, a landmark antitrust case that limited the standards in which antitrust law could be applied. The investment of the Walgreen Foundation had finally born fruit.

The Walgreen Foundation was hardly the only source of funding for free-market academic entrepreneurs. The William Volker Fund, under the management of Kansas City businessman Harold Luhnow, began its own aggressive strategy of giving to anti-statist and anti-regulation advocates. The Volker Fund financed the American academic positions of Austrian economists Ludwig von Mises and Friedrich Hayek at New York University and the University of Chicago, respectively, and provided generous financing to the Foundation for Economic Freedom, one of the first libertarian think tanks. Volker also provided funding for the Mount Pelerin Society and the Intercollegiate Studies Institute, the latter of which was founded as a conservative and libertarian network for college students. The Volker Fund eventually collapsed in ignominy in the mid-1960s, when an increasingly right-wing Luhnow reorganized the foundation into the Center for American Studies and appointed as staffers R.J. Rushdoony, a Calvinist theologian who helped develop Christian reconstructionism, a particularly right-wing variant of evangelical Christianity that emphasizes the creation of a theocratic state, as well as David Leslie Hoggan, an outright Holocaust denier. The Center for American Studies folded by the end of 1964, but the Volker Fund’s model of financing promising free-market scholars and funding institution-building in American higher education would be influential for subsequent generations of right-wing philanthropists.

John M. Olin was a pivotal figure in consolidating this trend in right-wing philanthropy. Olin made his fortune as an arms manufacturer — ironically, for someone who would finance efforts to roll back the New Deal state, Olin’s own financial success was cemented by the government’s massive arms orders during World War II. The John M. Olin Foundation, established in 1953, was designed from its beginning to promote its founder’s political vision — unlike most other philanthropic foundations, which are chartered in theory for perpetuity, the Olin Foundation was configured to spend all of its financial assets within a generation of Olin’s death. (The foundation, true to its mission, shut its doors in 2005).

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The Olin Foundation spread its money widely. It financed a series of unsuccessful efforts by Manne, one of the early law and economics pioneers, to set up a dedicated conservative law school at several different universities in the 1960s and 1970s. But Olin also gave money to set up law and economics centers within the country’s top law schools — Stanford, Yale, Harvard, and the University of Chicago, among others. This was what Olin executive director James Piereson called the “beachhead strategy.” The idea was to embed law and economics programs into larger elite schools under the theory that the influence of these small programs would trickle down through the rest of the academy — after all, most law professors in the United States were (and are) trained at only a handful of elite programs.

Law and economics was, from its beginnings down through to today, understood to be a tool by right-wing opponents of socialism, communism, and New Deal liberalism to reverse the hated “collectivist” administrative state.

The Olin Foundation’s successful bid to establish a law and economics at Harvard Law School in the mid-1980s is particularly revealing of the dynamics that led to the strategy’s success, because the creation of the John M. Olin Center for Law, Economics, and Business at Harvard Law could not have happened without the support of non-conservative faculty. Liberal and moderate faculty at Harvard Law in effect allied with the Olin Foundation against a potentially resurgent campus left. In 1985, the Olin Foundation, with the support of moderate faculty members at the law school — including anti-trust scholar Phillip Areeda, a former Eisenhower and Ford administration official, and James Vorenberg, the dean of the school and a former clerk for Supreme Court Justice Felix Frankfurter — endowed $1 million for the new center. The goal, hashed out in meetings with Areeda, was to use the center to restrain the power of the left-leaning critical legal studies field, an approach with a growing number of adherents at Harvard that emphasized that the law is a tool that underwrites power structures in society. Harvard Law did not become a particularly right-wing law school as a result of the Olin beachhead (and for that matter most of the law school’s more controversial and political unorthodox faculty, like Alan Dershowitz, never identified with law and economics), but after the creation of the center law and economics appointments among the faculty began to outpace those of critical legal studies. The program’s success at Harvard — and on other law school campuses — was as much a product of an alliance of convenience between conservatives at Olin and liberals and moderates in the academy.

Of course, the success of law and economics in setting up an institutional presence through its beachhead strategy at the nation’s top law schools is not, on its own, enough to account for the dramatic rightward shift in American jurisprudence over the past generation. In order to actually enact policy, it’s not enough just to have an intellectual superstructure; you also have to have cadres of ideologically reliable activists in the courts and in the government to turn policy into practice. Enter the Federalist Society.

*  *  *

The Federalist Society was founded as a debating club by a group of conservative Yale law students in 1982. The organization, from its very beginning, has claimed merely to be interested in “fair, serious, and open debate” about “ideas.” (“We do not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service,” according to its website.) But this is rather misleading: the Federalist Society has been explicitly ideological and interested in enacting a very specific agenda since its very beginning. As documents recently unearthed by Amanda Hollis-Brusky and Calvin TerBeek have shown, the Federalist Society was explicitly dedicated to reversing the perceived liberal domination of American jurisprudence and, more importantly, rolling back the New Deal state. A January 1984 grant proposal from the Federalist Society’s executive director, Eugene Meyer, explicitly stated that the objective of the Federalist Society was “to build an effective national conservative lawyers organization” that would reverse the trend toward liberal lawyers and that would “continue to fill key positions in the modern instrumentalities of the welfare state.”

This mission attracted funding from a number of right-wing and right-leaning foundations, including the Olin Foundation, the Lynne and Harry Bradley Foundation, the Scaife family foundations, and the Smith Richardson Foundation. Seed funding from these philanthropies made the Federalist Society a sustainable project. Today, the Federalist Society can rely on support from wealthy alumni, but in the early 1980s it was essentially reliant on right-wing foundation funding for its survival. This was an efficient investment for conservative philanthropy. The Federalist Society raised around $100,000 in its first year from six different conservative foundations — a mere drop i n the pot when in came to their respective grant budgets, but one that would reap dividends in the near future.

Support from right-wing philanthropic networks opened up doors for the growing Federalist Society. The group played a key role in the power struggle between law and economics and critical legal studies — a largely left-wing form of legal analysis that emphasizes that the legal system reflects the power dynamics of society at large — at Harvard Law School. Federalist Society-affiliated writers blasted critical legal studies as a field in articles and op-eds in the mid-1980s — right at the same time as the Olin Foundation was establishing its center on the Harvard Law campus. The Society also cultivated allies in Washington, D.C. The Reagan administration was keen to staff federal appointments with ideologically reliable personnel, and the Federalist Society within a few years had set up a Washington, D.C. chapter, not just for law students, but for practicing lawyers.

The key to the Federalist Society’s political influence has been how it functions as a key conduit in the conservative career pipeline. Advancing through that ideological pipeline can open up opportunities to gain influential positions even in non-partisan institutions. (A similar conduit exists in the media, and helps to explain the charmed career of conservative writers like Bret Stephens.) The power of this pipeline is sharply evident today. All five of the serving right-leaning Supreme Court justices — Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, and Samuel Alito — are currently or have been affiliated with the Federalist Society. Five-sixths of the judges President Donald Trump has appointed to federal appeals courts are also current or former Federalist Society members. And this network has expanded exponentially; there are some 70,000 active Federalist Society members as of 2019.

The Federalist Society’s vice president, Leonard Leo, has built his public reputation as the maker of right-wing legal careers. The Washington Post dubbed him a “judge whisperer,” who pushed for the nomination of both Gorsuch and Kavanaugh to the Supreme Court and served a similar function in promoting the careers of less well-known Republican staffers. (He was reportedly an advocate for, among others, Matthew Whittaker, the former acting attorney general who ran the Department of Justice for three months after Jeff Session’s resignation in 2018.)

The political winds are indeed shifting. Leftists and even liberals are putting forth serious proposals to pack the Supreme Court, an echo of Franklin Roosevelt’s aggressive stance against a reactionary court in the 1930s.

By helping to reshape the federal courts and the Department of Justice, the Federalist Society has had an outsized impact on American law and public policy. Federalist Society alumni on the Supreme Court alone helped make possible the installation of President George W. Bush in 2000 thanks to Bush v. Gore; ushered in a flood of corporate money into state and federal politics thanks to Citizens United v. FEC; sought to cripple unions by stripped away agency fees with Janus v. AFSCME; and even rescinded key provisions of the Voting Rights Act with Shelby County v. Holder. This power was built over a generation, and was made possible through the funding the Federalist Society received from its financial angels in right-wing philanthropic foundations in the 1980s.

*  *  *

Still, there is cause, for those on the left, for hope. Right-wing philanthropy may have made the Federalist Society possible and popularized law and economics as a discipline, but it ironically also helped to nurture the careers of one of its greatest political opponents in the early 21st century.

Elizabeth Warren was a young law professor at the University of Houston in 1981 — only a few years out from her J.D. at Rutgers Law School — when she was invited to attend a glitzy and well-funded law and economics seminar at the University of Miami. The organizer of the seminar was none other than Henry Manne, who received support from the Olin Foundation for his attempts to organize a dedicated conservative law school. (Manne would eventually become dean of the George Mason University Law School, which has since been renamed for Antonin Scalia.) Warren was greatly influenced by the seminar — she even met her current husband there — and came away a firm believer that the market was a more efficient distributor of resources than the government. She sided regularly with industry on regulatory questions in her legal scholarship. Warren was a true believer.

Irving Kristol, the doyen of the neoconservatives in the 1970s and 1980s, quipped that he was actually a liberal who had been mugged by reality. Elizabeth Warren could be accurately described as a law and economics scholar who had been mugged by evidence. Law and economics has notoriously promoted the use of specious thought-experiments in its scholarship — Richard Posner, a leading law and economics practitioner, famously wrote a largely evidence-free article in the late 1970s proposing that new parents be allowed to buy and sell unwanted children on a free market as opposed to state adoption agencies — and John McGee’s 1958 article on predatory pricing, later cited by the Supreme Court, heavily distorted the evidence of Standard Oil price undercutting in the early 20th century in order to justify its conclusion that such a practice does not, in fact, exist in business.

Warren, on the other hand, was driven by evidence. While conducting research on bankruptcy law in the mid-1980s, Warren and a team of researchers compiled stories from thousands of bankruptcy cases filed in the Western District of Texas. Rather than find stories of irresponsible debtors trying to cheat their creditors, she and her colleagues found patterns of predatory lending that undercut one of the basic intellectual claims of law and economics: that individual persons are best understood as rational economic actors. The emperor, Warren discovered, has no clothes.

American conservatism was built by left-wing apostates. James Burnham and Frank Meyer, founding editors of National Review, were both former Marxists. Aaron Director, the founder of the Journal of Law and Economics at the University of Chicago, was also a former radical — he taught labor history at Portland Labor College and courted controversy by inviting Communist Party members to speak at the school. Warren has come full circle: a left-wing apostate of the right-wing apostates, with an understanding of just how important administrative and legal power is when making political change. And she could be the next president of the United States.

The political winds are indeed shifting. Leftists and even liberals are putting forth serious proposals to pack the Supreme Court, an echo of Franklin Roosevelt’s aggressive stance against a reactionary court in the 1930s. A former law and economics prodigy is now running for president on a left-liberal platform. If the history of law and economics and the Federalist Society have proven anything, it’s that there is no permanent settlement in American public policy.

David Austin Walsh is a PhD candidate in the history department at Princeton University.

Image at top: TPM Illustration / Getty Images


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RT @flaplette: my $5000 oscilloscope can't connect to the network because a wifi-enabled lightbulb stole its fixed IP address. the future…

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my $5000 oscilloscope can't connect to the network because a wifi-enabled lightbulb stole its fixed IP address.

the future is fucking stupid

Retweeted by internetofshit on Monday, October 7th, 2019 1:46pm

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9 days ago
Sounds like you use DHCP but set a static up in the scope instead of the router via MAC address. Bush league.
Bend, Oregon
9 days ago
Are you suggesting that these tech-savvy consumers are not technically savvy?
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