Privatizing Justice: Free to Lose Alone?

One of my intellectual tasks is to peel open and pin down the democracy that we have.  And then to lay it down next to what liberal democracy was supposed to look like when we decided it had rules and norms that we thought were worth organizing our society around.

"Liberal" theories of politics, with their focus on individual freedoms, tend to applaud the outsourcing of government tasks, the explicit or implicit delegation of state action to "private" actors.  Once based on moral nuggets like "natural rights," we hear now, especially after Friedman and the neoclassical revolution, arguments that are primarily in economic terms.  Citizens become market participants; individual freedom becomes "efficient allocation of resources." The fullness of human existence, at least as  contemplated by JS Mill, compartmentalizes into discrete yes/no choices in a rigid rat maze whose construction none of us had anything to do with.

It is neither irony nor a surprise, I think, that the Chicago school had a sort of hair-of-the-dog moment when Bloom - that particularly trenchant and romantic moral conservative - started panicking about the hyper moral relativism (or perhaps more accurately, the misplaced moral judgement) of his colleagues.  He pined about lost love, vapid teenage rock songs, and family disintegration.  If he couldn't look for meaning in politics, perhaps he could find it in marriage.  You can hardly blame him.

But that debate - what's important about liberalism and why - is not the only debate we're having now.  Another debate we're having is about liberalism of any kind vs..... what Sheldon Wolin described as "Inverted Totalitarianism."  I might rather call it coming full circle; once you start talking about liberalism's utilitarianism and achieving the best kind of social ends, as opposed to inalienable rights that we hold to no matter what, we open ourselves to some top-down anti-democratic arguments.  If we value freedom because it makes us more rich, then we are told to value anything that (ostensibly) makes us more rich.  Anything.

Today I was very kindly sent a letter written by lefty journalist Greg Palast encouraging Travyon Martin's father to sue the shirt off the back of George Zimmerman.  He makes an argument that we lawyers hear so often - when government lets us down, we Americans have the (very unique) recourse to private litigation; we can be our own regulatory agency.  While progressives like Palast likely think that civil suits are a second-best solution, many others believe that private litigation ought to replace the entire DOJ.  Individual market actors, after all, do it best; the DOJ is a rest stop on the Road to Serfdom.

Well, be that as it may.  But no matter which form of liberalism you pick, what's going on with justice today is anything but liberal.  Rules and laws meant to curb, prevent, minimize private litigation abound.  From the PSLRA (constraining securities fraud) to the toughening class action rules; the Phenomenon that is Private Arbitration boilerplate clauses peppering every contract you'll ever sign (click?) during your life (part of that take-it-or-leave-it rat maze).  After we broke unions of workers at the bargaining table, we are now breaking unions of consumers and citizens in lawsuits.  Why are we doing this? To make us all richer.  That, at least, is the justification that is proffered.  

So much for freedom of association.  For free "market participants" deciding on their own to form a cooperative venture to pursue their individual, but shared, desires.

Ask yourself to whom you are ceding your freedom.  And ask yourself whether that looks anything like a manifestation of individual rights - whether of the traditional or Chicago-school variety.