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Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.
Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in place of targeted financial industry culpability and penalty. By presenting unequal economic loss as the inevitable result of generally beneficial systems, this flawed logic concludes that the most legitimate response to systemic failure is unequal personal sacrifice, not political mobilization in support of stronger protection from unequal risk and plunder.
This chapter explores how this message weakened the majority report of Financial Crisis Inquiry Commission, despite its voluminous evidence of institutional problems. Further, it shows how this message inverts legal responsibility for devastating corporate wrongdoing, so that sacrifice by innocent victims appears to be more productive and proper than fair and meaningful law enforcement. Finally, I analyze how this troubling message is implicitly advanced in the seemingly progressive intellectual defense of equality by legal scholar Daniel Markovits. Markovits challenges the traditional personal responsibility argument that unequal poverty and insecurity stem from bad individual choices. Yet because he assumes that this inequality generally comes from benign institutions limited by natural scarcity, his reasoning nonetheless tends to suggest that responsible policy requires accepting substantial individual sacrifice by those who lose out. To instead revive the ideal of equality, we must go further to challenge the assumption that political economic structures and institutions regularly producing unequal and severe economic harm deserve submission rather than reform.
law and economics, poverty, equality, inequality, redistribution, regulation, personal responsibility, welfare, economic policy, political economy, corporate crime, financial regulation, vulnerability, anti-subordination, critical legal studies, classcrit
Inequality and Stratification | Law | Law and Economics
This is a draft chapter. The final version is available in Research Handbook on Political Economy and Law edited by Ugo Mattei & John D. Haskell, published in 2016, Edward Elgar Publishing Ltd. https://doi.org/10.4337/9781781005354.00024. The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
Martha T. McCluskey, Personal Responsibility for Systemic Inequality in Research Handbook on Political Economy and Law 227 (Ugo Mattei & John D. Haskell, eds., Edward Elgar 2015)