Author: emmacaterine

emmacaterine

Against “Fairness”

122188155_2700750283_z Contracts are the life blood of capitalism. As Pashukanis wrote, and as my contracts professor said the first day of class, everything in a capitalist legal system can be framed as a contract. The Constitution is the state’s contract with private interests and within itself between the various branches and departments of government. The criminal law is a contract where the accused bargains with the state to work out a deal to “pay their debt to society,” though of course the “debt” is actually accrued by their disruption of the flow of capital. And then of course, there are what we think of on a day-to-day basis as contracts. We sign contracts with our banks, credit card companies, and other financial service providers so that they can have the legitimacy, and thus the ability to use the power, of the state. We sign contracts when we marry, originally because women were viewed as property, and now because it is a risky economic relationship that the state demands some control over in order to alleviate a divorce’s disruption of the flow of capital. And as pictured above, US unions across the board generally hold the provision of a “good contract” by employers as their major, or even their only, platform.

I give that brief introduction because it is important for us to view the material dialectic reality of what a contract is as opposed to the deterministic framework propounded by capitalists and their states. One particular concept that I have oft-seen mythologized, even by the Left, is “fairness.” “Fairness” is an integral part of the market fables that not only purport capitalism as efficient, but as ethically and morally sound. The bourgeoisie own wealth because it is “fair” since they have worked so hard. The wealth inequality is “fair” because the poor do not work hard enough. When I am buying a sofa for my apartment, it is “fair” for my roommates to chip in, even if I make enough money to buy the sofa without their assistance.
Contracts are claimed to be the purveyor of “fairness” (as we will see, this is a mistaken view of their relationship). When an offer is made and someone accepts it, that is generally seen in the United States as “fair” unless the offer was made under force, fraud, or coercion. The focus here will be tailored particularly to unilateral contracts, because of a special interest in fairness with the upholding of these contracts. A unilateral contract is pretty much what it sounds like: it is an offer to carry out some future act (to make a promise) that demands some specified performance to make it binding (called consideration). Why fairness is important to contracts is fairly straightforward: unlike a bilateral contract, the offeree in a unilateral contract has no promise to leverage the offerer with. A good example of a unilateral contract is an insurance policy. Your payment to an insurance company is your consideration, and as such the insurance company promises to insure your health, life, property, etc. And of course we get really upset when insurance companies are “unfair”! People still go off about the tens of thousands being denied insurance for their homes after Hurricane Katrina. The tactic of finding “previous conditions” not reported in the purchase of health insurance was another example of a lack of “fairness” bemoaned by the Left of this country. But in both of these cases (speaking generally about lawsuits around “previous conditions” before the Affordable Care Act), the courts ruled in favor of the contract. And one of the most important things about contracts, a key element to its value in capitalism, is to bind the underclasses to unfair economic dynamics through the state’s authority.

One famous example of such a case was Petterson v. Pattberg (1928) in New York. Essentially this trial dealt with three people: the decease John Petterson, the executrix of his will (simply referred to as Petterson), and a man who held a bond secured by a third mortgage on the house. Pattberg’s bond on John Petterson’s property was, at the time of the execution of the will, unpaid upon the principal the sum of $5450, payable in installments of $250 in 21 days and then subsequently every three months thereafter. Pattberg wrote the plaintiff with an offer to accept cash for the mortgage reduced by $780 if the mortgage was paid on or before May 31, 1924 and the April 25th payment was given on time.” Petterson paid the April 25th payment on time. On a day in May, Petterson went to Pattberg’s home with the money for the remainder of the mortgage. Pattberg informed plaintiff that he had sold the mortgage. Petterson showed that he had the full sum, in cash, but Pattberg refused the money. And the court ruled that without Pattberg accepting the money, there was no legal reason why Pattberg could not rescind his original offer to reduce the payment by $780: it was not a full performance. This case was very controversial, and not just because the dissenting judge insinuated the Chief Justice was hypocritical. One of the most interesting statements comes from a law review commentator named Samuel Blinkoff. Blinkoff said that the “court gives the strict orthodox answer [but] it seems that the demands of good faith in business dealings would require a more liberal decision in cases of this kind” (Note, 14 Cornell L.Q. 1928). The question here is: what are the “demands of good faith in business dealings”?

In a far more recent case, Cook v. Coldwell Banker/Frank Laiben Realty Co. (1998) in Missouri, the issue of “fairness” gets revisited by the court with what appears to be a different philosophical approach. Cook was a licensed real estate agent, and Frank Laiben promised bonuses for any of their contracted agents who made a certain amount in commissions. This bonus would be paid at the end of the year. Cook quickly surpassed the “first tier” of bonuses, and by September she was in the highest tier with a thirty percent bonus. On this month, Frank Laiben informed the agents that bonuses would actually be given on March of the next year, and that agents who were not still with them at that time would not receive their bonuses. Cook stayed through the end of the year, and then started working for another company at the beginning of the next year. She sued to get her bonus and won. The court reasoned that Cook had made a “substantial” enough performance by September that Frank Laiben could not have made a new offer (to collect bonuses on March of the next year) without fulfilling his promise for the first offer (to collect bonuses at the end of the year).

Here’s the issue: why was Cook’s performance considered substantial but not the performance of Petterson or the Hurricane Katrina survivors? The answer has to do with the reproduction of surplus value in a capitalist economy, not with some fairly arbitrary doctrine of “fairness.” Rosa Luxemburg in The Accumulation of Capital expanded on Marx’s own assertion that “money in itself is not an element of actual reproduction”: Luxemburg writes “we must assume that capitalist society must always dispose of money, or a substitute, in just that quantity that is needed for its process of circulation… the capitalist class, that is to say, use the whole of their surplus value for personal consumption. Since the capitalists are the consumers of surplus value, it is not so much a paradox as a truism that they must, in the nature of thing possess the money for appropriating the objects of consumption, the natural form of this surplus value. The circulatory transaction of exchange is the necessary consequence of the fact that the individual capitalist cannot immediately consume his individual surplus value, and accordingly the individual surplus product.”

Unilateral contracts, and perhaps more importantly state enforcement of unilateral contracts or the lack thereof, are an exchange as much as any other. So it is not quite surprising then that the corporations and state have a vested in interest in ensuring that the governance of unilateral contracts creates surplus value for their consumption. Therein lies the difference between Cook and all these other cases: Cook was a member of the bourgeoisie, engaging in the standard capitalist accumulation in her labor and incentivized by the unilateral contract from Frank Laiben. Actually, it is more than standard: real estate is one of the increasingly effective and pervasive ways of accumulating whatever wages are retained by the workers. It is the surplus value extracted on top of the exploitation by their employer. It is no surprise then that the agents of capitalism do not want to disrupt a “substantial performance” by one of their agents generating value for their class.

“Fairness” can only be attributed to contracts when they are atomized, observed individually and in relative isolation. This is why, even when used to speak out against the unfairness of contracts, I want to propose that we cease using the word completely. We must stop looking at contracts, or even class action lawsuits about thousands of contracts, as isolated to the actions of one insurance company or one credit card company or one employer. Fundamentally, contracts are like any other instrument of capitalism: they are part of a massive function, programmed to extract wealth from the working class into the hands of the bourgeoisie.

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emmacaterine

The Permanent Jury Nullification: A Trotskyist Argument For Jury Nullification

UPDATE: An interesting case for advocates of jury nullification to keep an eye on.

In my criminal law class, one of the concepts we have studied thus far is the idea of jury nullification. For those of you not familiar, jury nullification is when the jurors ignore the instructions of the judge, the “law finder” of the court, to render a verdict of not guilty. Jury nullification has a rather complicated historical record: on the one hand, it has been used by social movement like the anti-war movement in order to prevent the incarceration of people who took direct action against the state. On the other hand, it has led to white supremacist court rulings, from the killers of Emmett Till to Colin Murphy. Jury nullification is thus very controversial, even among Leftists. It finds a considerable amount of support among both the Left and Right libertarians, who see it as a glorious example of the individual(s) overcoming state oppression in order to protect their communities. In U.S. hegemonic doctrine (or what less-antagonistic lawyers would call “case law”), jury nullification has been found to be a power inevitably granted due to the rights of the Fifth Amendment for juries to be the democratic check to state power as the court’s “fact finders” and the Sixth Amendment for protection from double jeopardy. In other words, if you give juries the power to render verdicts with only guiding instruction and those verdicts of acquittal are absolute, there is no constitutional way to outright criminalize jury nullification. But of course, a capitalist state is never held back by such pithy restraints as “following its own laws.”

In People v. Williams (25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, 2001), an 18 year old young man had sexual intercourse with a 16 year old girlfriend. If help to the standard of consent between two adults, the girl’s assent would have been considered consent. But because of her age, Williams was charged with the misdemeanor offense of unlawful sexual intercourse with a minor. When the case reached the California Supreme Court, the following exchange between a juror and the presiding judge:

Judge: It’s been reported to me that you refuse to follow my instructions on the law in regard to…unlawful sexual intercourse, that you believe the law to be wrong and, therefore, you will not hear any discussion on that subject. Is that correct?

Juror: Pretty much, yes…

Judge: All right. Well…I would remind you…that you took an oath at the outset of the case in the following language: ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this Court and a true verdict render according only to the evidence presented to you and to the instructions of the Court.’ You understand that if you would not follow the instructions that have been given to you by the court that you would be violating that oath? Do you understand that?

Juror: I understand that.

Judge: Are you willing to abide by the requirements of your oath?

Juror: I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason.

Judge: Well, you understand that statutory rape or unlawful sexual intercourse has been described to you as a misdemeanor? Did you follow that in the instructions?

Juror: I’ve been told it is a misdemeanor. I still don’t see – if it were a $10 fine, I just don’t see convicting a man and staining his record for the rest of his life. I think that is wrong. I’m sorry, Judge.

Judge: What you’re saying is not the law either concerning that particular aspect. [my emphasis added]

Juror: I’m trying as best I can, Judge. And I’m willing to follow all the rules and regulations on the entire rest of the charges, but on that particular charge, I just feel duty-bound to object.

Judge: So you’re not willing then to follow your oath?

Juror: That is correct.

The juror was excused and Williams was convicted by the newly convened jury. The state’s hypocrisy in this case is palpable: when the judge says that the juror’s opinion is not the law governing the issue, the implicit assumption here is that the jury is duty-bound to be law finders. But we know this not to be the case, precisely because the state argues the opposite when it is discouraging jury nullification! In my opinion, this juror almost avoided his dismissal. It was not until the last question where the juror explicitly stated that he was not willing to follow his oath. When he was asked a similar question for the first few times, all he stated was that he could not see a situation in which he would convict Williams, and his determination as to conviction is his power through jury nullification. There are two lessons to learn from this case: first, that juries are full of people whose commitment to the capitalist state goes far enough that they will turn you in simply for resisting the state’s assignations. Second, that the state has many loopholes by which it can pressure and prod jurors into not using jury nullification or eliminating jurors determined to use jury nullification. If jury nullification is a tool that we wish to use, then we must educate people unfamiliar with the law about due process rights and their power as jurors. But even in this aspect we must be cautious: in 2011, Julian Heicklen was charged with jury tampering for his leafletting about the jury nullification power.

Trotsky did not write much on the political landscape of the United States, which is a shame because what little writing he did do on it shows that he had a very introspective analysis of it. “Certainly the phases of development of the proletarian party in America,” he writes, “will be sui generis (unique)… It is evident that the possibility of participating in and of utilizing a “Labor Party” movement would be greater in the period of its inception, that is, in the period when the part is not a party but an amorphic politic mass movement. That we must participate in it at that time and with the greatest energy is without question” (“On the Labor Party Question in America”). Most Trotskyists in the United States, and notably Socialist Alternative, take some form of this approach to electoral politics. But when Trotsky talked about participating in and utilizing such movements, he was not simply talking about this in regards to electoral politics. I would argue that this approach is just as relevant to how Trotskyists should approach the mostly liberal and libertarian (Left and Right) movement to reform or dismantle the criminal injustice system. Similar to voting, juries are one of our few means of exercising anything remotely resembling democracy. The capitalist politicians and courts have required this sense of community legitimacy in order to carry out their reign of terror on the working class, and especially with all the populations which serve as the United States’s underclass (Black people, Native peoples, gender nonconforming people, drug addicts, etc.). After all, how are we to criticize the incarceration of our family and friends as state violence when it is a jury of their peers that made the decision? But of course this is a farce: as demonstrated in the above cases, the state will use all means at its disposal to convince juries that their options are limited to carry out the state’s own agenda, that they are little more than “yes men” to mass incarceration. This is one of the greatest tragedies of the criminal injustice system: the dramatic irony of a jury that thinks they can only be servants of the capitalist agenda, but in actuality has some of the greatest power within the system to fight that agenda.

It is vital for us to educate the working class and underclass of the importance of serving on a jury. We need to train our members in how to present themselves to be more likely to pass voir dire, and subsequently to carry out a socialist agenda while on the jury, including the use of jury nullification. One juror informing the other jurors of their own power, while it can lead to being dismissed like in the case above, has often led to the most important decisions made in courtrooms (and not just in Twelve Angry Men). We do not need to go through some obligatory political stage in order to start seizing the means of producing incarceration and other state-based punitive judgments. We, any person in this country with jury privileges, can build our conception of socialist law today through actions like jury nullification.

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emmacaterine

Chattel Slavery, Peonage, and Labor Under Capitalism

In a class I am taking that focuses on constitutional law, we have spent the first two weeks focusing on state action and consequentially the Fourteenth Amendment, from the initial limitations prescribed by the Civil Rights Cases in 1883 to the synthesis of the Edmonson-Lugar rule, which defines when private conduct constitutes state action (in the Edmonson case, this involved a private corporation being sued for personal injury damages using peremptory challenges to get ride of two Black people from the jury. Because the jury is a state function, and peremptory challenges have no use outside of the courtroom, and finally because being discriminated against by a jury after being discriminated against by the corporation would be an aggravation of the injury facilitated by the state, it constitutes state action. If you could not tell from this complicated process (and particularly the Shelley v. Kraemer factor in the rule is something that confuses even learned legal scholars), placing private action in the public sphere of deserving protection from discrimination is arduous and limited. We actually worked through a number of state action cases, including Edmonson, before we got to the Civil Rights Cases. And the professor had us do a rather illuminating exercise, where we hypothetically went back in time and could write the majority opinion ourselves based on our own interpretations. When I did this, I certainly had a more open interpretation of the 14th amendment is necessarily limited by its language:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Michael Parenti has a fascinating lecture on the real history of fascism, and one of the many assertions he makes about the misconceptions of fascism is that it was intentionally spurred by the actions and investment of global capitalists, from German captains of industry to infamously IBM, Coca-Cola, and Henry Ford. And then Parenti compares many of the tactics to those used by Ronald Reagan. But he makes sure to state that he is not asserting that Reagan was a fascist. After all, rather than pushing for a state cult like the Third Reich, Reagan appointed as many people into positions of power as he could that did not believe in the functions of government they were supervising. From the perspective of the United States entrance into World War II, it was a competition to see which form of capitalism would win: one with a state to strong-arm the working class vs. one with a state that passively allows private actors to strong-arm the working class. The 14th Amendment is a great example of this capitalist state theory, and it should be noted that the decision to weaken the 14th Amendment was made by the moderate section of abolitionists. Conversely, the radical abolitionists like Frederick Douglass, Thaddeus Stevens, and Wendell Phillips were all outraged by the limitations of these amendments. And Representative John A. Bingham, author of the amendment, would garishly reveal his political allegiances when he was implicated in the Credit Mobilier scandal.

As a Trotskyist, I believe in a transitional programme, including with the way I study (and hopefully one day practice) the law. Of course it is vital for us to be autonomous from the capitalist system in order to present a true, rather than assimilatory, alternative, but I want to learn how to use the capitalist law in ways that can build working class consciousness and movement. Needless to say, the limitations of the Fourteenth Amendment were rather disheartening. But that is only one portion of the Civil Rights Cases: they also made a case for the Thirteenth Amendment not offering protection to the legislation either. The Thirteenth Amendment, while including that unfortunate provision on carceral slavery, is far more powerful in that it does not require state action: it prohibits slavery for all parties. Unquestionably this Amendment was the greatest legal victory by the abolitionist movement. But in the Civil Rights Cases, the majority opinion makes the case that the discrimination against free Black peoples before the abolition of slavery demonstrates that anti-Black discrimination is not a “badge or incidence” of slavery. With the current historical record, and of course not viewing it through a lens of perpetuating white supremacy, we know this to be an utter falsehood, as the state-instituted forms of anti-Black discrimination dealing with public accommodations specifically arose in order to dehumanize Black people and thus make them ideal subjects for chattel slavery. And the Black Codes in particular still influence modern anti-Black discrimination today.

Seeing how completely the Civil Rights Cases Thirteenth Amendment arguments could be dismantled, I wondered why we see so little modern day uses of the Thirteenth Amendment. When I asked my professor about this, one part of her answer was to look at the peonage cases. While there are plenty of cases that exemplify the grotesque labor conditions of the South for Black workers, I am going to focus on the case of Pollock v. Williams because of the then Attorney General’s interpretation of it having major implications for the development of capitalism following the loss of the chattel slavery labor source. Florida had a state statute, making it a crime to leave a job without repaying an advance made by the employer to the worker. We continue to see this method of peonage used today in both legal (i.e. crowdworking per its initial labor investment in marketing oneself and bidding for jobs) and black market contexts (i.e. human trafficking in which the laborer is “indebted” to the person who provided them transportation to the country they work in). The Supreme Court struck down Florida’s statute, saying that the purpose of the Thirteenth Amendment went beyond the restrictive context of disallowing slavery; the Court stated that the Thirteenth Amendment was meant to “maintain a system of completely free and voluntary labor throughout the United States.” Attorney General Biddle took this opinion a step forward: as Risa L. Goluboff writes, Biddle believed the Thirteenth Amendment “meant the creation and protection of a unitary, national labor market.” Herein we see the capitalist motivation for Attorney General Biddle to go after peonage laws: like fascism on a macro-scale, peonage laws were meant to entrust the state with steering the labor market in ways that privileged corporations. Biddle foresaw that this methodology would create economic crisis as chattel slavery had done before it. His motivation was largely what David Harvey describes as capitalism’s tendency to move around, rather than solve, its economic crises. As Marxists we of course know that no matter how unitary or nationally-cohesive, capitalism will always bring itself to crisis again.

Nevertheless, the struggle against peonage laws (and it should be noted there were huge community forces behind this resistance as well) fits into a transitional programme regardless of the capitalists. As noted by Jennifer Roesch, “a discussion of the relationship between racism and capitalism has never been more relevant [than today].” Because of how pervasively anti-Black racism under-girds United States capitalism, it is necessary to prioritize targeting those racist structures even if it fails to create an alternative to capitalism in the short-term. For this reason, I think the next big 13th Amendment cases lie in going after these “crowdworking” companies. “Crowdworking” is the neoliberal globalization of the peonage system, only disguising the “advance” as a payment through labor rather than a payment through currency. It conforms with Biddle’s idea of a unitary, though international rather than national, labor market. Thus it is clearly an action to build further consciousness, rather than repeating the actions and frameworks of Biddle. Certainly it is a more complicated issue than this simple brief outline, but I sincerely hope that with the success of the Black Lives Matter movement will come a renewed interest in dismantling the racist exploitation in capitalist labor markets using the Thirteenth Amendment.

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