Yale Journal of Law & the Humanities
http://hdl.handle.net/20.500.13051/9
2024-03-29T09:39:32ZWork Disguised as Leisure, Leisure Disguised as Work: The Roots and Consequences of the Bifurcated Economy
http://hdl.handle.net/20.500.13051/18381
Work Disguised as Leisure, Leisure Disguised as Work: The Roots and Consequences of the Bifurcated Economy
Hull, Samuel
This Article argues that the framework laid out in the post-Marxist scholar André Gorz’s 1989 book on the alienation inherent in a system focused on efficiency, Critique of Economic Reason, provides a valuable approach for understanding the alienation that inheres in the unequal modern economy, as well as the roots of the legal-political structure that undergirds that inequality. The Article first describes Gorz’s understanding of how the rise of quantification and economic reason left modern work patterns deeply alienating, and how incentivizing long hours of unfulfilling work through “compensatory consumption” and an “ideology of work” led to the bifurcation of society into elite and “servile” classes. The Article then updates Gorz’s model to analyze the rise of several phenomena that represent a fuller extension of this bifurcation: the gig economy, which embodies Gorz’s notion of “disguising private activities and leisure activities themselves as work and jobs”; and what this Article terms “totalizing firms,” which conversely disguise work as leisure. The Article next discusses how economic reason has reinforced its hegemony, both by undermining the potential for political solidarity and through its entrenchment in the legal apparatus. Finally, the Article turns to how reorienting the labor movement and economic policy toward a focus on free time could challenge economic reason.
Vol. 34:2
2023-01-01T00:00:00ZThe Purloined Debtor: Edgar Allan Poe’s Bankruptcy in Law and Letters
http://hdl.handle.net/20.500.13051/18380
The Purloined Debtor: Edgar Allan Poe’s Bankruptcy in Law and Letters
Sheley, Erin; Rosen, Zvi
This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then-emerging law of bankruptcy. Poe declared bankruptcy at a unique moment in American legal history, where for thirteen months in the early 1840s, America had a debtor-focused bankruptcy law under which a bankrupt could seek protection. Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-inquisitorial process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.
Vol. 34:2
2023-01-01T00:00:00ZLooking for the Common Good with Adrian Vermeule and William Shakespeare
http://hdl.handle.net/20.500.13051/18379
Looking for the Common Good with Adrian Vermeule and William Shakespeare
Sczygelski, Lucas P.
In a March 2020 essay for The Atlantic, Harvard Law professor Adrian Vermeule called on fellow conservative legal thinkers to renounce the bedrock principle on which Originalism rests—the separation of law and morality. Instead of placing legal reasoning inside an airtight box into which no moral or political exigencies may enter, Vermeule counseled the conservative legal movement to permit moral and legal claims to mingle freely, to drop the drab positivist hermeneutics and embrace a vibrant form of natural law oriented to the “common good.” The essay provoked intense reactions, and in the process Vermeule—an administrative lawyer theretofore known primarily for his robust if increasingly lonely conservative defense of Chevron deference—became something of a legal celebrity on the integralist right. His recent attempt to expand his 2020 essay into a book entitled Common Good Constitutionalism is the subject of this Article. I read Vermeule’s book against Shakespeare’s The Merchant of Venice in an attempt to draw out some of the unsettling ahistorical patness at the center of Vermeule’s theory. Where Vermeule assumes that legal questions can have a single correct solution coterminous with the common good, The Merchant of Venice provides that legal subjects, in their ineradicable and splendid human inconsistency, will have no trouble suggesting others.
Vol. 34:2
2023-01-01T00:00:00Z“Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe
http://hdl.handle.net/20.500.13051/18378
“Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe
Leff, Laurel
During the Nazi era, the United States could have remained within
overall and country-by-country quotas limiting immigration and still have
admitted an additional 350,000 refugees from Germany and Germanoccupied
or -allied countries. Instead, the State Department, whose
consular officers abroad decided whether visas were to be issued, denied
them to hundreds of thousands seeking refuge between 1933 and 1945.
Largely untethered by judicial or public oversight, consular officials
deployed their discretion in a way that produced direct and often deadly
consequences for the mostly Jewish refugees. This episode has been largely
overlooked in histories of administrative or immigration law, and
minimized in historical accounts focused upon congressional intransigence
and presidential acquiescence in failing to change the statutory scheme. Its
meaning has been lost in the gap between disciplines. This article seeks to
bridge the divide by showing how State Department officials used the
discretion afforded them under the immigration statute and through judicial
decisions to implement an anti-foreign, antisemitic policy. Understanding
the multiplicity of decisions officials faced gives lie to the oft-repeated
refrain that the law in the form of an impenetrable statute dictated the
result. Reviewing the history also demonstrates the power of the “law made
me do it” claim, as it persists decade after decade, despite overwhelming
evidence that “the law” did no such thing. This tragic case study ultimately
illuminates the need for historians to develop a better understanding of law,
and for legal scholars to gain a better understanding of history.
Vol. 34:2
2023-01-01T00:00:00Z