Martha McCluskey | SUNY: University at Buffalo (original) (raw)
Papers by Martha McCluskey
Critical Analysis of Law, Apr 15, 2018
Yale Law Journal, Apr 1, 1988
People with physical disabilities' in the United States have faced, and continue to struggle agai... more People with physical disabilities' in the United States have faced, and continue to struggle against, many social and economic disadvantages. Over the years, laws have explicitly excluded people with disabilities from holding public office,' serving on juries, 3 marrying, 4 working in certain occupations, 5 bearing children,' attending school, 7 and even from being seen on public streets. 8 Even today, people with disabilities are "substan-1. This Note will use the term "disability" in place of "handicap." Although there is disagreement about which term is preferable, many people believe "handicap" carries connotations of inferior status. The phrase "people with disabilities" in place of "disabled people" or "the disabled" emphasizes that people should not be reduced to their disabilities. See NATIONAL EASTER SEAL SOc', PORTRAYING PEOPLE WITH DISABILITIES IN THE MEDIA § I (undated). This Note uses "disability" to include all physical disabilities covered by § 504 of the Rehabilitation Act of 1973. See 29 U.S.C.A. § 706(8)(B) (West Supp. 1988). Section 504 covers any person who has, is regarded as having, or has a record of having a physical or mental impairment which substantially limits one or more of that person's major life activities. Id. Some examples of disabilities included in this definition are hearing impairments, epilepsy, visual impairments, and neuromotor impairments. The discussion in this Note will be limited to physical disabilities, since the issue of equality for people with mental disabilities may raise somewhat different questions. For a discussion of equality in the context of mental disability, see Comment, We Have Met the Imbeciles and They Are Us:
Oxford University Press eBooks, Jun 9, 2021
This article analyzes feminism in legal theory in relation to the rise of “law and economics” dur... more This article analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century as a methodology that generated academic credibility for anti-egalitarian ideology and policy. Law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best governed by efficiency insulated from contested morality and politics. This division naturalizes a gendered baseline that generally makes feminist reforms appear costly and unfair. Finally, the article explores how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.
Cambridge University Press eBooks, Jul 31, 2009
Routledge eBooks, Aug 14, 2023
Social Science Research Network, Feb 23, 2009
As a step toward the goal of constructing a story of class in constitutional law, this Essay expl... more As a step toward the goal of constructing a story of class in constitutional law, this Essay explores a recent Supreme Court decision about due process: State Farm Mutual Automobile Insurance Co. v. Campbell. 1 In State Farm, the protection of wealthy business owners is not simply one substantive goal among many to be debated in a pluralist state and society. Instead, the Court implicitly equates protection of upper-class interests with fundamental fairness, essential to neutral legal process. Correspondingly, this case constructs protection of opposing class interests as violations of fundamental fairness, impossible for neutral legal process. I. POST-LOCHNER PROCESS AS ECONOMIC EQUALITY On the surface, modern U.S. constitutional law generally appears to abstain from taking sides in conflicts of economic class. In the conventional wisdom, since the Lochner era of the early twentieth century, 2 the Constitution treats questions of economic inequality as matters of policy largely immune from scrutiny by the judicial branch. 3 In the standard theory, the quintessential
Social Science Research Network, 2004
Social Science Research Network, 2011
Journal of Law and Political Economy, Dec 6, 2023
This article reflects on the Association for the Promotion of Political Economy and Law (APPEAL),... more This article reflects on the Association for the Promotion of Political Economy and Law (APPEAL), formed in 2012 as the first contemporary scholarly group named for the emerging field of Law and Political Economy (LPE). APPEAL organizes academics and allies to address urgent social problems by exploring possibilities for reorienting the economy toward justice, equality, and democracy. To mobilize ideas for change, APPEAL emphasizes collaborative intellectual communities. I situate APPEAL in the context of a neoliberal political movement to capture law's power by investing in the Law and Economics message that economic power inevitably limits democracy and social justice. Though vastly outmatched in funding, APPEAL brings together experts in economics, law, and other disciplines to clarify and change influential neoliberal ideas about both law and economics. I highlight APPEAL participants' scholarship showing the interconnected social, political, and legal nature of economic power as the basis for transforming economic politics and policy.
The Berkeley Journal of African-American Law & Policy, 2015
Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a const... more Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a constitutional vision that inverts the rule of law, so that government authority becomes particularly illegitimate when it constrains institutional power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, 2 a 2003 Supreme Court ruling involving a different subject area, governed by state rather than federal authority. Despite these differences, both cases similarly assert new federal judicial power to override government efforts to prevent unlawful gain from exploitation of racial and economic inequality. Authority becomes legitimate-the rule of law rather than personal whim-when it must account for its actions with explanations and evidence subject to outside evaluation for consistency, truth, and value. In theory, the U.S. constitutional system holds government to account through democratic elections-a goal crucially advanced by the Voting Rights Act 3 and also through different degrees of judicial scrutiny of the justifications for government action. In general, constitutional doctrine requires federal judges to defer to the factual determinations and value judgments of other branches as long as these can be supported by some plausible reason (even if the reasons are not persuasive or proven). For some particularly exceptional areas of heightened constitutional concern, however, judges can demand that government action have stronger support in order to be valid law. I. Uneven Concern for States' Rights? Shelby County invalidated the coverage formula of the Voting Rights Act on the ground that it was an irrational use of Congress's constitutional power to enforce the Fifteenth Amendment's protection against race-based
Social Science Research Network, May 2, 2016
The Berkeley Journal of African-American Law & Policy, 2015
Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a const... more Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a constitutional vision that inverts the rule of law, so that government authority becomes particularly illegitimate when it constrains institutional power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, 2 a 2003 Supreme Court ruling involving a different subject area, governed by state rather than federal authority. Despite these differences, both cases similarly assert new federal judicial power to override government efforts to prevent unlawful gain from exploitation of racial and economic inequality. Authority becomes legitimate-the rule of law rather than personal whim-when it must account for its actions with explanations and evidence subject to outside evaluation for consistency, truth, and value. In theory, the U.S. constitutional system holds government to account through democratic elections-a goal crucially advanced by the Voting Rights Act 3 and also through different degrees of judicial scrutiny of the justifications for government action. In general, constitutional doctrine requires federal judges to defer to the factual determinations and value judgments of other branches as long as these can be supported by some plausible reason (even if the reasons are not persuasive or proven). For some particularly exceptional areas of heightened constitutional concern, however, judges can demand that government action have stronger support in order to be valid law. I. Uneven Concern for States' Rights? Shelby County invalidated the coverage formula of the Voting Rights Act on the ground that it was an irrational use of Congress's constitutional power to enforce the Fifteenth Amendment's protection against race-based
Law and Inequality, 2019
To solve problems of inequality and insecurity, we need to advance universal human economic right... more To solve problems of inequality and insecurity, we need to advance universal human economic rights, not just increase discretionary targeted redistributive spending. This is the opposite of the conventional law and economic wisdom. Orthodox law and economics tells us: all rights have a cost. 40 Law can allocate economic gain, but not generate it. Any new † †. Thanks to Emily Villano of the LPEblog for helpful editorial suggestions on another version of this paper, which was published as a blog post at https://lpeblog. org/2018/04/05/economic-human-rights-not-tough-policy-tradeoffs/. A version of this essay was also produced in 2017 as part of a short audiovideo collection. APPEAL,
University of Toledo Law Review, 2018
tax-relief-will-put-american-economy-high-gear/. 3. Id. 4. Id.
Critical Analysis of Law, Apr 15, 2018
Yale Law Journal, Apr 1, 1988
People with physical disabilities' in the United States have faced, and continue to struggle agai... more People with physical disabilities' in the United States have faced, and continue to struggle against, many social and economic disadvantages. Over the years, laws have explicitly excluded people with disabilities from holding public office,' serving on juries, 3 marrying, 4 working in certain occupations, 5 bearing children,' attending school, 7 and even from being seen on public streets. 8 Even today, people with disabilities are "substan-1. This Note will use the term "disability" in place of "handicap." Although there is disagreement about which term is preferable, many people believe "handicap" carries connotations of inferior status. The phrase "people with disabilities" in place of "disabled people" or "the disabled" emphasizes that people should not be reduced to their disabilities. See NATIONAL EASTER SEAL SOc', PORTRAYING PEOPLE WITH DISABILITIES IN THE MEDIA § I (undated). This Note uses "disability" to include all physical disabilities covered by § 504 of the Rehabilitation Act of 1973. See 29 U.S.C.A. § 706(8)(B) (West Supp. 1988). Section 504 covers any person who has, is regarded as having, or has a record of having a physical or mental impairment which substantially limits one or more of that person's major life activities. Id. Some examples of disabilities included in this definition are hearing impairments, epilepsy, visual impairments, and neuromotor impairments. The discussion in this Note will be limited to physical disabilities, since the issue of equality for people with mental disabilities may raise somewhat different questions. For a discussion of equality in the context of mental disability, see Comment, We Have Met the Imbeciles and They Are Us:
Oxford University Press eBooks, Jun 9, 2021
This article analyzes feminism in legal theory in relation to the rise of “law and economics” dur... more This article analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century as a methodology that generated academic credibility for anti-egalitarian ideology and policy. Law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best governed by efficiency insulated from contested morality and politics. This division naturalizes a gendered baseline that generally makes feminist reforms appear costly and unfair. Finally, the article explores how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.
Cambridge University Press eBooks, Jul 31, 2009
Routledge eBooks, Aug 14, 2023
Social Science Research Network, Feb 23, 2009
As a step toward the goal of constructing a story of class in constitutional law, this Essay expl... more As a step toward the goal of constructing a story of class in constitutional law, this Essay explores a recent Supreme Court decision about due process: State Farm Mutual Automobile Insurance Co. v. Campbell. 1 In State Farm, the protection of wealthy business owners is not simply one substantive goal among many to be debated in a pluralist state and society. Instead, the Court implicitly equates protection of upper-class interests with fundamental fairness, essential to neutral legal process. Correspondingly, this case constructs protection of opposing class interests as violations of fundamental fairness, impossible for neutral legal process. I. POST-LOCHNER PROCESS AS ECONOMIC EQUALITY On the surface, modern U.S. constitutional law generally appears to abstain from taking sides in conflicts of economic class. In the conventional wisdom, since the Lochner era of the early twentieth century, 2 the Constitution treats questions of economic inequality as matters of policy largely immune from scrutiny by the judicial branch. 3 In the standard theory, the quintessential
Social Science Research Network, 2004
Social Science Research Network, 2011
Journal of Law and Political Economy, Dec 6, 2023
This article reflects on the Association for the Promotion of Political Economy and Law (APPEAL),... more This article reflects on the Association for the Promotion of Political Economy and Law (APPEAL), formed in 2012 as the first contemporary scholarly group named for the emerging field of Law and Political Economy (LPE). APPEAL organizes academics and allies to address urgent social problems by exploring possibilities for reorienting the economy toward justice, equality, and democracy. To mobilize ideas for change, APPEAL emphasizes collaborative intellectual communities. I situate APPEAL in the context of a neoliberal political movement to capture law's power by investing in the Law and Economics message that economic power inevitably limits democracy and social justice. Though vastly outmatched in funding, APPEAL brings together experts in economics, law, and other disciplines to clarify and change influential neoliberal ideas about both law and economics. I highlight APPEAL participants' scholarship showing the interconnected social, political, and legal nature of economic power as the basis for transforming economic politics and policy.
The Berkeley Journal of African-American Law & Policy, 2015
Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a const... more Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a constitutional vision that inverts the rule of law, so that government authority becomes particularly illegitimate when it constrains institutional power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, 2 a 2003 Supreme Court ruling involving a different subject area, governed by state rather than federal authority. Despite these differences, both cases similarly assert new federal judicial power to override government efforts to prevent unlawful gain from exploitation of racial and economic inequality. Authority becomes legitimate-the rule of law rather than personal whim-when it must account for its actions with explanations and evidence subject to outside evaluation for consistency, truth, and value. In theory, the U.S. constitutional system holds government to account through democratic elections-a goal crucially advanced by the Voting Rights Act 3 and also through different degrees of judicial scrutiny of the justifications for government action. In general, constitutional doctrine requires federal judges to defer to the factual determinations and value judgments of other branches as long as these can be supported by some plausible reason (even if the reasons are not persuasive or proven). For some particularly exceptional areas of heightened constitutional concern, however, judges can demand that government action have stronger support in order to be valid law. I. Uneven Concern for States' Rights? Shelby County invalidated the coverage formula of the Voting Rights Act on the ground that it was an irrational use of Congress's constitutional power to enforce the Fifteenth Amendment's protection against race-based
Social Science Research Network, May 2, 2016
The Berkeley Journal of African-American Law & Policy, 2015
Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a const... more Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a constitutional vision that inverts the rule of law, so that government authority becomes particularly illegitimate when it constrains institutional power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, 2 a 2003 Supreme Court ruling involving a different subject area, governed by state rather than federal authority. Despite these differences, both cases similarly assert new federal judicial power to override government efforts to prevent unlawful gain from exploitation of racial and economic inequality. Authority becomes legitimate-the rule of law rather than personal whim-when it must account for its actions with explanations and evidence subject to outside evaluation for consistency, truth, and value. In theory, the U.S. constitutional system holds government to account through democratic elections-a goal crucially advanced by the Voting Rights Act 3 and also through different degrees of judicial scrutiny of the justifications for government action. In general, constitutional doctrine requires federal judges to defer to the factual determinations and value judgments of other branches as long as these can be supported by some plausible reason (even if the reasons are not persuasive or proven). For some particularly exceptional areas of heightened constitutional concern, however, judges can demand that government action have stronger support in order to be valid law. I. Uneven Concern for States' Rights? Shelby County invalidated the coverage formula of the Voting Rights Act on the ground that it was an irrational use of Congress's constitutional power to enforce the Fifteenth Amendment's protection against race-based
Law and Inequality, 2019
To solve problems of inequality and insecurity, we need to advance universal human economic right... more To solve problems of inequality and insecurity, we need to advance universal human economic rights, not just increase discretionary targeted redistributive spending. This is the opposite of the conventional law and economic wisdom. Orthodox law and economics tells us: all rights have a cost. 40 Law can allocate economic gain, but not generate it. Any new † †. Thanks to Emily Villano of the LPEblog for helpful editorial suggestions on another version of this paper, which was published as a blog post at https://lpeblog. org/2018/04/05/economic-human-rights-not-tough-policy-tradeoffs/. A version of this essay was also produced in 2017 as part of a short audiovideo collection. APPEAL,
University of Toledo Law Review, 2018
tax-relief-will-put-american-economy-high-gear/. 3. Id. 4. Id.