Matt Bruenig hopes to launch the next Leftist policy du jour with his new paper proposing a sovereign wealth fund. But unlike Medicare For All or a Federal Job Guarantee, the American Solidarity Fund would be beholden to, rather than fundamentally challenge, the current economic paradigm.
Regardless of your impression of his contentious online presence, Matt Bruenig has managed to carve out a space for himself as the voice of pragmatism and empiricism on the U.S. Left. That sort of irreverence for accepted tenets appears from the start of his new paper, “Social Wealth Fund For America,” with an excoriation of the starry eyed nostalgia for the so-called Golden Years of Capitalism. This kind of frank evaluation is something I try to practice myself. I would guess that straightforward approach is a large part of Bruenig’s appeal and why so many were interested in what his paper on a sovereign wealth fund had to say.
I have emerged from bar study to write a quick post inspired by a bit of legislative news my boyfriend sent me. This dispatch from hell world, called the Unmasking Antifa Act, may at first seem an incredibly alarming setback after the J20 victory. But while the bluster of this Act may turn into something truly horrifying deep in the recesses of the House Judiciary Committee (I highly doubt it given all the other contentious issues), at this point it is a bit of a chuckle in an otherwise dismal news cycle. The reason is pretty straightforward: it is mindbogglingly unconstitutional. Totally unconstitutional. So incredibly unconstitutional that even in the age of President Swiss Cheese Brain it is impossible to take seriously. Let’s dive in.
A child associated with an armed force or armed group refers to any person below 18 years of age who is, or who has been, recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, spies or for sexual purposes. Paris Principles on the Involvement of Children in Armed Conflict 2007.
The United States, in its long-running tradition of only following the international laws it agrees with, is not a signatory to the Paris Principles on the Involvement of Children in Armed Conflict. This is what immediately came to my mind when the recent shooter of Marjory Stoneman Douglas High School was identified as Nikolas Cruz, an expelled student who had been in his school’s JROTC program, even being awarded medals for it. It was in my head again when his social media began to be uncovered and verified by surviving students, particularly an Instagram account where he is often pictured wearing different Army hats.
There is a lot to get into with this subject so I have decided to split things into more and smaller segments so that they are readable. So this first post will just focus on the Commerce Clause. I have noticed in my discussions on this subject that my fears of right wing legal challenge to single payer are most often dismissed by a simple evocation of the Commerce Clause. Unfortunately there is reason to believe that single payer’s constitutionality under the Commerce Clause is not so straightforward given recent decisions and the direction of the courts.
The Beginning of the Debate of What Commerce Means
NYC DSA Medicare For All logo, designed by Stephanie Monohan
In my last post, I gave a straightforward but ambitious directive: “The Left needs to shake its discomfort with wielding power and build the intellectual and political synthesis to gain power.” While I did not mention it in the post (which focused instead on net neutrality), I was inspired by a hopeful shift being enacted by the Democratic Socialists of America’s (DSA) Medicare for All campaign. Those who worked on the Affordable Care Act may remember how power rarely if ever entered into the conversation. The power of health insurance corporations and powerlessness of the people were assumed, and instead the discourse focused on how to navigate these dynamics rather than disrupt or eliminate them.
While there are some who want to return to these paltry discussions, Medicare for All could be a crucial first step for the Left towards taking power. That is why I and many others have poured so much time into it, from door-to-door canvassing to work with medical debt. There’s a great groundswell of volunteers. But that is just part one of my aforementioned directive. Medicare for All will not be won solely by the Left deciding that it should take power. We also need to create the intellectual and political synthesis to make it happen. To be clear, this is not needed to fulfill the mandates of Medicare for All’s critics. They have already shown they have no qualms criticizing strawmen rather than any policy put forth by the campaign. Rather, it is needed to make sure that when we pass Medicare for All that it is an unencumbered single payer system, that it withstands constitutional challenge, and that it does not foreclose the path towards fully socialized medicine.
A lot has been written on how corporations and the ultra rich shape politics. But there is a whole other set of puppet masters in modern U.S. politics: the legal academia.
The beginning of the most fraught debate on government regulation in 2017 happened 14 years earlier when a young law school professor named Tim Wu wrote that net neutrality would “preserv[e] a Darwinian competition among every conceivable use of the Internet so that the [sic] only the best survive.” Not exactly a rallying cry against the free market, and while the issue was hotly debated among legal academics, its first attempt to become law in the United States failed miserably. Net neutrality would not be manifested in the law until 2010 with the passage of boletín 4915 in Chile.
Federal Communications Commission Chair Julius Genachowski, with a Democratic executive branch, decided to follow Chile’s lead despite the threat of Congress pushing back and enacted the FCC Open Internet Order on December 21st, 2010. This order was not net neutrality, at least in the eyes of the policy’s advocates, but it enraged the Republican Party. And on April Fool’s Day, Joshua D. Wright published a post titled “Welcome To Net Neutrality” on a blog called “Truth on the Market.”
At the end of every seven years you shall grant a remission of debts. “This is the manner of remission: every creditor shall release what he has loaned to his neighbor; he shall not exact it of his neighbor and his brother, because the LORD’S remission has been proclaimed. -Deuteronomy 15:1-2
Debt is often portrayed like this, insurmountable garbage or an overwhelming flood. But for debt buyers, it is a valuable commodity.
A personal goal of mine in writing this blog was to do a somewhat extensive application of all of Marx’s Capital to U.S. law. That goal did not quite materialize as I got caught up in various things, but I recently started an amazing reading group through DSA’s Socialist Feminist Working Group for women and nonbinary people to read through Capital Vol. 1. Since I will be putting time into not only re-reading it but also discussing and learning from my nonbinary and sister comrades, I figure might as well apply that knowledge to the law.
So those who have read Capital know that Marx starts things off with his analysis of what a commodity is and why the nature of commodities leads to commodity fetishism. He famously (or perhaps infamously) uses the example of linen and coats for commodities. He did not pick these commodities at random: coats are a commodity that has near-universal familiarity and linen is one of its components (at least in the 19th century). They also have a clear utility: coats keep us warm and linen can be used to make clothes like coats. And they have a clear root in production through private labor: coats are tailored and linen is weaved. But this first chapter of Capital Vol. 1 is supposed to cover all commodities because of how Marx comes to his definition of the money-form.
Marx begins by describing the two values contained in commodities: use-value, the utility of a commodity in its consumption or use, and exchange value. Exchange value is derived by the relative value between two commodities, with Marx giving the example of 20 yards of linen=1 coat. Marx notes that every commodity has an extensive number of relative values, essentially as many as there are commodities in the marketplace. He explains that these other relative values are needed to really understand the value of a commodity. If, for example, whatever market fluctuations cause the exchange value of linen and coats to go up in the exact same proportion, their relative value will remain the same: 20 yards of linen=1 coat. Throw in a third commodity however and you can understand that the exchange value has gone up, i.e. 20 yards of linen=1 coat= 1 lb. of coffee > 20 yards of linen=1 coat=2 lb. of coffee.
As such, one can craft what Marx calls the general form of value by setting one commodity against all others – “the joint contribution of the whole world of commodities.” And per this relationship, society can come up with a commodity to serve as a universal equivalent. That commodity was gold. And this relationship of “direct and universal exchangeability” made gold into money. Gold’s existence as money then made its relative value towards other commodities the price form.
Now commodity fetishism is the part of this first chapter of Capital Vol. 1 that draws a lot of attention because of how present it still feels in our day-to-day lives. The deduction of money conversely seems a bit archaic: after all, we now have a fiat currency in the United States that does not rely on the gold standard. Is modern money still a commodity? Many would argue that is not: as the economist Georg Friedrich Knapp said, money is a “creature of law” rather than a commodity. It is important to recognize however, as Marxist economist Michael Roberts points out, that Marx is not writing about money throughout existence but rather money in a capitalist-commodity economy.
Roberts also notes that the state being able to create money “out of thin-air” as is done with a fiat currency is not the same thing as creating its value. He uses the example of the Great Recession to indicate that when the value of a national currency collapses that commodities’ demand increases to hoard value.
Note the spike in mid-2007 and then drop in mid-2012.
And I would argue a recent scourge of consumer protection law is also demonstrative of money’s role as a commodity and the importance of rooting the price form in relational values of exchange: the practice of buying consumer debts.
Debt buying regularly comes up in the context of so-called “zombie debt.” This “zombie debt” is debt which has been paid off but the account winds up accidentally getting bundled with a bunch of open debt accounts and sold to debt buyers. Many creditors (and we’re talking big names here like Bank of America and Discover) deal with this problem by indemnifying themselves contractually from any liability, placing the responsibility of weeding out already-paid accounts onto the debt buyers. The debt buyers in turn have little to no incentive to weed out these accounts because (1) there is literally no court in the US where default judgments are not obtained in the majority of consumer debt proceedings, and (2) the main statute protecting consumers, the Fair Debt Collection Practices Act (FDCPA), limits penalties for individual actions to $1,000. That’s less than practically any of the judgments that debt buyers stand to win from filing suit, so it is simply a matter of profit margin.
But how come companies are allowed to buy debt in the first place? People appearing in court, sued by a company they have never heard of like Portfolio Recovery or Calvary SPV, often wonder why they are dealing with some strange company rather than their original creditor. After all, the origin of our ideas of debt are mostly from Judeo-Christian concepts of morality, like the common seven year statute of limitations that can be traced back to Deuteronomy. As in prior to capitalism being the dominant economic paradigm, when the impetus of paying debts came from fearing judgment and sin. It is hard to get across to people in debt from a wide array of backgrounds that this moral system has little to no bearing on their legal proceedings. The judge probably will not, and the plaintiff will certainly not, care if someone has always “done the right thing” or made one mistake. Moral culpability is irrelevant: what matters is contractual obligation.
Debt, and its more appealing twin Credit, developed to allow for the expansion of capitalism for reasons that will be covered further into Capital Vol. 1. For the time being, it just needs to be understood that debt is a contractual money obligation by one party, the debtor, to another party, the creditor. Like any other contract, the rights it instills can generally be assigned to another party. U.C.C. 15-317. But assignment only provides a legal vehicle for the purchase of debt: what is the economic motivation? And more precisely, is debt a commodity despite being nothing other than a money obligation?
While abstracted to an extraordinary degree not even imaginable in Marx’s worst nightmares, debt is very much a commodity under modern capitalism. One element that reveals the debt’s commodity form is the difference between its use value and exchange value. Debt buyers do not purchase debts for the money owed on it. Instead, evaluating several factors (age, type of consumer transaction, attempts at collection), a price is formulated in relation to the necessary labor time needed to produce its value. This necessary labor time consists of administration, compliance, and legal collection. As such the exchange value winds up being pennies on the dollar or even less: it is literally a full-time job to track down people in debt and collect from them while complying with all the appropriate government regulations. And it should be noted that the use value of these debts is not the money owed either: debt buyers are well aware that most of these debts will settle for less than the principal and some (if people like me do their job right) may get discontinued altogether.
The example of purchasing debt shows the power of money as a concept, and particularly the price form. In any other exchange system, it would be difficult if not impossible to calculate the exchange value of a debt as a commodity with such ruthless efficiency. For starters the debt would not be for money but rather for commodities: to use an example we all can hopefully relate to, let’s say Rosa owes Lucy three tacos. Lucy decides she does not actually want the three tacos but wants to come out with something, so she tries to sell this debt to Margaret since she knows Margaret makes amazing pizza. Even assuming there was a generally recognized rate of exchange of one taco for one slice of pizza, why would Margaret risk purchasing this taco debt that she’ll then have to collect on when she could just go to someone with tacos and trade? It’s an intentionally silly example but hopefully it illustrates how complicated these relationships can be without a universal equivalent.
And of course the debt buying process is particularly interesting when we consider the debate of whether money is a commodity. Like money, debt as a contractual obligation is a “creature of law.” The obligations are not natural things but social relations. And most importantly how they relate to people (through their use value, or the collection of the debt) is different from how they relate to other commodities. The minute a price (the exchange value between money and a commodity) is placed on a debt, it relates to the entire world of commodities despite itself being an odd shadow of the very universal equivalent of money that allows this relation.
I am going to apologize ahead of time because this post will lack the normal snarky jokes and clever quips because I am neither in the mood nor have the time since there is a lot to cover. Also to save on space I won’t be addressing issues that are important but better addressed by others elsewhere like who is considered a “terrorist” by the mainstream media nor will I be debunking the mind-blowingly dumb claims like that suppressors wouldn’t help someone maximize their killing spree. As briefly but thoroughly as possible I want to establish two things: first, that the current gun control laws are useless bourgeois nonsense and that most of the proposals for gun control are also useless bourgeois nonsense, and second, legal changes both immediately achievable and long term that will end the public health crisis that is periodic mass murder by use of firearms in the United States.
But let’s all be clear that Michael Fifer looks like a worm-colored prune.
The Problem
So probably everyone reading this is familiar with the Second Amendment and its “right to bear arms.” That right in practice is a gradient – the “core” of the right is the possession of handguns (since they are the most common weapon for self-defense) and furthest from the “core” of the right are theoretically things like machine guns and grenade launchers (we will get to that theoretically in a second). This was outlined in a series of cases, most importantly a case called McDonald v. City of Chicago. What the petty feckless racists who have turned “Chicago” into a Nazi rallying cry tend to forget is Chicago tried very hard to fight its problem with violence through a law that effectively banned the possession of handguns. That law was struck down by the Supreme Court in an opinion by Justice Alito. Justice Alito held that:
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.
So cities and states cannot ban handguns. What can they do and what has been done? New York passed a law called the Secure Ammunition and Firearms Enforcement Act (SAFE Act) and it was put to the test in a case called New York State Rifle & Pistol Ass’n v. Cuomo. This law defined a semiautomatic firearm as a prohibited “assault weapon” if it contained any one of these “military-style” features: a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher. “This statutory definition encompasses,” the court noted, “and thereby bans, the semiautomatic weapon used by the mass-shooter at Sandy Hook.” And the court upheld the law’s constitutionality, stating that while semiautomatics are popular that they’re not on the same level as handguns were in McDonald. The court held that when it came to the particulars of the right to bear arms that the legislature was better equipped than the judiciary, and they noted just how much evidence there was that semiautomatic firearms should be strictly regulated.
Semiautomatics create more wounds, more serious wounds, and more victims on average. They’re disproportionately used in violent crime and especially mass shootings. And they’re the weapon most used to kill police officers.
But now we will start to see where liberal gun control falls apart. Because this was not a ban on semiautomatics, but rather semiautomatics with certain “military-style” features. As one of my DSA comrades noted, that kind of regulation is more about aesthetic than killing capacity:
This firearm is banned because it is very SWAT-looking.But this one is okay because of the classic wooden stock vintage feel.
One of the most commonly mocked gun laws is the National Firearm Act, and in particular the 1968 amendments. The law classifies certain types of firearms for special regulation: machine guns, short-barreled rifles, short-barreled shotguns, silencers, and destructive devices. Weapons dealers and enthusiasts figure out ways to avoid their weapons falling into these classifications, often by having something defined as a pistol. Now when you think pistol you’re probably imagining this:
And now here’s what the horrifyingly creative weapons dealers think of as a pistol:
I really can’t over-emphasize how unpleasant this dude is.
Why don’t gun regulations work? We could explore all the intricacies here, maybe offer some amendments to the NFA to change the definitions of the different kinds of firearms, fight like hell against the NRA, get a watered down version passed which dealers and manufacturers would get around in a year at most. It is not a capacity for innovation in general, which capitalism actually isn’t that good at, but rather a capacity for profit-seeking innovation.
Guns are essentially video games for adult, mostly white men. It is an enormous subculture that exists not to promote mass shootings – that is just a side effect – but to promote patriarchal fantasies of power and colonialist domination. Like how the government blow back against Grand Theft Auto led to video games of an unimaginable level of depravity and violence, so has the market-friendly regulations against firearms just encouraged these men to seek out even deadlier weapons. Not because they’re planning on killing people, but because they like to fantasize about it. At least, until they take the next logical step. As long as capitalism, patriarchy, and white supremacy exist in this relatively uncontested union, mass shootings will only get worse.
But that does not mean we should just shrug our shoulders at every tragedy until some fantastical revolution saves us.
The Solution
So if liberal gun control does not work for failing to confront capital and patriarchal fantasy, what can be done? Here are five proposals outside the norm of gun control regulation:
1. Nationalize Weapons Manufacturing
This one seems a bit counter-intuitive, but I believe it actually has the most potential to eliminate spontaneous mass shootings. Because a nationalized weapons manufacturing opens up so many possibilities. It could whittle down all firearms production to the bare necessity to engage in self-defense against a lethal threat. There are obvious problems here, mainly with foreign weapons flooding in to fill the vacuum. But it is worth noting that U.S. weapons currently flood the world so if there is one place to strategically attempt to plug up, it is here. This solution is obviously a pretty fantastical one in the current political environment, and it is on this list less as a serious suggestion for a campaign and more to start conversation about what can and should be nationalized and socialized in this country, how many problems could be solved if the profit motive was eliminated.
2. Shut Down Weapons Dealers
The term “dealer” under the law refers to both distributors and vendors, and both groups are complicit in mass shootings. One of the things found at the scene of the recent shooting was a modified bump stock, one of the ways that gun enthusiasts simulate automatic fire. Dealers pass around these custom parts and undermine any attempt at regulating the killing capacity of firearms.
Laws should be passed to hold dealers accountable. But until then another remedy may be available: wrongful death lawsuits. Certain family members of those killed in mass shootings have standing for wrongful death lawsuits – in fact, it happens somewhat regularly. But those lawsuits are generally against the government or the shooter’s estate (since the shooter is usually deceased). What if the dealers of guns were sued? It would require a good test case with a clear proximate cause of a dealer’s decision to sell a certain particularly lethal part or weapon to a mass shooting (and before someone jumps in with the “guns don’t kill people, people kill people,” the law recognizes any event can have multiple proximate causes, so yes guns and people kill people). It would require family members ready to fight organizations as vicious as the NRA, but luckily fed up family members are not too hard to find.
And for the Leftists who have been at the ready to attack me because you’ve convinced yourself any kind of gun control would attack the working class, don’t kid yourself. It is true that some kinds of gun control only harm the working class, like ridiculous licensing fees, and that some are straight up racist, like using the no fly list as the basis for restrictions. But the recent shooter being a multi-millionaire isn’t some anomaly. This is a game for high rollers, not for people looking to arm themselves for self-defense. Parts as small and innocuous as the Echo AR-II Trigger (another way people get around the automatic fire ban) cost $479. And as long as we are letting the market alone decide who gets the best guns, the Left by nature of its class composition is bound to get outgunned.
3. Resurrect the Federal Trade Commission’s attempted child advertisement ban
The next three solutions focus on the aspect of mass shootings too often ignored: that they begin and end with patriarchy. Patriarchy is an insidious system of power, “so deep as to be invisible” as Shulamith Firestone wrote. Part of why it is so deep is that it is instilled in all of us from the cradle to the grave. And a particularly disturbing iteration of that in modern society is video advertisements, both from TV and now online. This broad survey of the literature shows concerns that advertisements may, among other harms, be instilling aggressive and violent behavior in children.
The Federal Trade Commission (FTC) in 1978 announced that per their statutory mandate they were creating a rule to heavily restrict advertisement targeting children, particularly children too young to understand “the selling purpose” and advertisements promoting sugary foods. Needless to say, the capitalists flipped out. Particularly three industries mounted a campaign to stop the FTC: advertising, food, and toys. They tried all sorts of procedural tricks to take out FTC Chair Pertschuk (e.g. Association of Nat’l Advertisers, Inc. v. FTC), but they were only able to stop it by tearing apart the agency itself.
For decades this travesty went relatively unremarked upon. But a documentary called Fed Up identified its connection to the obesity crisis and child advertisement is up for debate again. A powerful coalition could be formed between all the different affected and concerned parties from the harmful effects of advertisements targeting children.
4. End All Funding By The U.S. Military Of Propaganda
One of the most disturbing parts of the glorification of violence and weapons in mass digital culture is how much of it can be traced back to the U.S. Military. The U.S. Military not only provided the jets, aircraft carriers, and other weapons of war for movies, they in turn helped shape the imperialist narratives behind them. They provide their trademarks and such for these creepy toys. And they fund summer indoctrination camps for the future mass shooterpatriotic youngster.
Something tells me this hasn’t been verified by a peer-reviewed study.
The Military has long resisted being told what to do by anyone, government or otherwise, so I doubt any kind of redirection here would be effective. Instead, the solution is a bit more straightforward: cut the Military budget. And while we push for that, support grassroots efforts like Stop Recruiting Kids that are fighting back.
5. Create The Violence Against Women Law That We Deserve
The Violence Against Women Act is one of the most criticized and studied pieces of modern law, from its civil remedy to survivors of violence that was struck down by the Supreme Court in 2000 to its tenuous relationship with tribal sovereignty. The Act was originally composed of five sections: (1) the Safe Streets for Women Act, which increased criminal penalties for rape; (2) the Safe Homes for Women Act, which required states give “full faith and credit” to protective orders granted in other states; (3) the Civil Rights Provision, which allowed survivors of gendered violence to sue their attackers for money damages; (4) Violence Against Women Act Improvements, which addressed campus sexual assault; and (5) Equal Justice for Women in the Courts Act, which trained state court judges and personnel in how to deal with sexual violence. As Claire DeMatteis who worked on the bill as Joe Biden’s consul noted, the law was preceded by dozen of hearings which were some of the first times that the violence women have faced and their stories have been recorded and solicited by the U.S. government.
But the Violence Against Women Act, for all its accomplishments, is not enough. Some feminists now question whether incarceration can play a part in our liberation. While the civil rights remedy was struck down in VAWA, it was a popular enough idea to inspire restitution struggles at local levels. There are many gaps created by the changing times: what should the legal remedies be for wrongful conduct like revenge porn? Harassment on Twitter?
A proposal for a new Violence Against Women Act deserves its own in-depth analysis. But the point here is that violence against women continues to be a largely unsolved problem, and that could be a crucial element in undermining the patriarchal roots of mass shootings. We must not simply give into fear and lash out, but rather approach the problem systematically as Crown Heights program Save Our Streets has done effectively.
Fairly unimpressive, and yet this piece of paper grants license to do almost anything.
Today the more moderate forces of progressives and the far Left are obsessed with one thing: the corporation. “Get corporate money out of politics,” they say. “We’re not against capitalism,” they explain, “We’re against corporatism.” “Corporations have taken over,” they argue, “We need to take back democracy from the corporations and their creations like NAFTA.” That last point is an interesting one because, even for the oldest among them, saying that the corporations have taken over during their life time implies that this supposed shift happened sometime in the 20th century.
Illustration of The Yellow Wallpaper, a short story of a woman told she has “hysteria” who actually has a psychotic break from the “cure.”
The term “gaslighting” came into popular use in the feminist movement to describe a practice used in domestic violence contexts where the abusive partner lies and manipulates facts in order to have the abused partner doubt their own ability to understand reality, and thus to understand that they’re in an abusive relationship. It can be as simple as “No I wasn’t yelling, you’re remembering that wrong” or as elaborate as messing up a recently cleaned room and punishing the person for “not cleaning” it. Generally this dynamic occurs between a man (the abuser) and a woman (the abused). Why is this? In The Dialectic of Sex, Shulamith Firestone states that it is because of the inability of women to love “gratiutously, but only in exchange for security”:
the emotional security which, we have seen, she is justified in demanding.
the emotional identity which she should be able to find through work and recognition, but which she is denied – thus forcing her to seek definition through a man.
the economic class security that, in this society, is attached to her ability to “hook” a man.
…For once a woman plunges in emotionally, she will be helpless to play the necessary games: her love would come first, demanding expression. To pretend a coolness she does not feel, then, would be too painful, and further, it would be pointless: she would be cutting off her nose to spite her face, for freedom to love is what she is aiming for.
Firestone and I both practice a materialist feminism, that we analyze patriarchy through the historic and materialist (in Firestone’s case, the biological reality of reproduction) conditions of society. But materialist feminism is not just analyzing how patriarchy came about materially, it is also analyzing how patriarchy shapes seemingly non-gendered things in society. While she focuses on cultural production (in particular classical ideas of art), she writes that patriarchy’s influence even extends to the seemingly empirical professions, in particular because women experts have to adopt a “split ‘professionalized’ personality, emotional ignorance, the narrow views of the specialist.” This conclusion brings to my mind a common truism among women attorneys, which is that women judges are always more strict to “make up for” the stereotyping of women as overly emotional and soft.
In particular I am interested in how patriarchy has shaped the laws of the United States, my (hopefully) first as-yet unpublished law review article looking at the ways patriarchy has shaped consumer bankruptcy. Whereas other scholars like Elizabeth Warren have focused on how bankruptcy disproportionately effects women, I am more interested in how gendered ideas creep into seemingly gender-neutral laws. And few laws are as facially gender-neutral (at least now that the practice of using “he” as a default pronoun has mostly faded) as the rules of evidence. But these rules play their own part in reifying patriarchal relations of power, and one illustrative example of this is the opponent party admission exception to hearsay.
Rule 801 does not say too much about opponent party admission:
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
…(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
…(B) is one the party manifested that it adopted or believed to be true.
…
Without getting too much into the specifics, hearsay can be a major encumbrance for attorneys. Unless you are able to manipulate someone successfully in cross-examination, it can be almost impossible to have a person admit to saying something that they did not say. The phrase “I cannot recall,” a favorite in depositions by our current president, can derail a case. This is especially true for a criminal attorney trying to exonerate their client from a rape or sexual assault charge. For cases that often boil down to “he said, she said,” establishing that the victim changed her story can make or break the case, or at the very least garner a better settlement.
And they look for changes in the story because they are common. Women are gaslighted into believing that their rapes are not a big deal, that what they remember as sexual assault was actually a consensual hook up, etc. If these “admissions” happen to police officers or other key witnesses, it can be very difficult to keep it out of court. Even the rape shield law, created to protect victims from being questioned about their sexual history, is vulnerable to this loophole.
A survey in the UK reports that 21% of those who do not report the assaults to police do so because they think the police will not believe them. But the gendered effects of this rule extend much farther than explicitly gendered issues like rape. Witnesses have notoriously faulty memories in general, and yet a common patriarchal idea of gender difference is that women in particular are liars.
I have seen guys in Brooklyn who both look like and sound like this jerk.
A number of not-so-scientific surveys say that women are more likely to lie then men. But in every one of these surveys, what is recorded within “lies” includes things like telling someone you like a gift that you actually did not or giving a fake number when someone asks you for one. In other words, the “lies” that women tell are about survival, either placating or avoiding all together the male domination in their lives. And these “lies” can under the opponent party admission exception be turned against women when they attempt to seek justice: a placating statement to an employer to avoid getting fired could be used as evidence that the problem at work is fabricated or an almost pre-programmed impulse to apologize when involved in a car accident could be used as evidence that the woman was at fault.
That’s not to say that there are not valid applications of opponent-party admission. A comprehensive and full confession of anything falls well outside of the fibs described above. And as someone who does legal work, I understand that as a general rule better decisions are made when all the evidence is allowed in. But to give such weight to offhand statements, whether made because of psychological manipulation by an abuser or because of social conditioning to be demure, is not conclusive of anything other than the double bind which women are placed in.
In terms of a solution, it is a bit chicken or the egg: should the focus be on ending the conditions that get women gaslit and socially conditioned to placate male feelings or should the focus be on not giving these “admissions” evidentiary weight? But they are not mutually exclusive struggles, and in fact are quite compatible given that the second is a more immediate goal (amending the rules of evidence) whereas the first is a more systemic goal (overthrowing patriarchy). And of course you do not have to be a lawyer to fight against the patriarchal idea of women as liars: that struggle can be fought every day in our personal lives by believing women when they speak earnestly about their oppression.
Habeas Quaestus 