Just Posted: May 16, 2017: The American Road to Fascism

The U.S. Presidential election of 2016 occurred amidst a disturbingly reminiscent coalescence of patterns — the economic displacement of the working class, the protracted paralysis of the legislative branch, the seeming indifference of the governing classes, the perception of widespread corruption, the neutralization of a vital left, and the festering wounds to national pride wrought of multiple lost wars. These patterns are familiar: Together, they comprise (albeit in much more attenuated form) the combustible mix that presaged the rise of National Socialism in 1930’s Germany.

Fast forward: a little more than 100 days into his administration, Trump is constructing a political world of alternative facts, casual mendacity, paranoid political conspiracies, free-form attacks on enemies of the people, ethnic vilification, and disdain for democratic and rule of law norms. What is perhaps most disturbing about this (in addition to its effects) is that this was the appeal that won him the Presidency among precisely the classes of people that classically form the core of fascist constituencies in times of economic and cultural displacement like those we have recently experienced. Trump’s Presidency is thus not only alarming because of what he does, but because of what his election represents. He is a warning, albeit one that arrives on the scene in the form of a political and cultural crisis.

How did we get here? And are we on the threshold of fascism or some sort of right wing authoritarianism? This piece examines the big theoretical picture. The piece addresses the questions by tracing the various forms that constitutional democracy has cumulatively taken in the United States: liberal democratic, administrative and neoliberal. The essay shows how in failing to reckon with their internal contradictions, these combined forms of the constitutional democratic state have in some ways prepared the grounds for some sort of right-wing authoritarianism.

There are three key narratives. The first is that the liberal democratic state alone is internally conflicted.  The second is that the rise of the administrative state in the midst of the liberal democratic state has yielded an arrested dialectic–a prolonged oscillation between the two which over time translates into decay.  The third is that neoliberalism (as conceptualized herein) has opportunistically exploited and accelerated this decay compromising the institutions of both state and civil society.

Politicians, lawyers, and journalists will deal with the day to day.  Academics, intellectuals, and students have a broader responsibility–to undertake a deeper understanding of the situation.  This piece addresses only one part of the big picture—the political-legal register.

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Just Posted March 27, 2017: Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions)

Abstract.  Wesley Newcomb Hohfeld’s 1913 article, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” is in some ways a stunning success. It has played an important role in shaping a variety of schools of thought — analytical jurisprudence, legal realism, law and economics, critical legal studies, and property theory. At the same time, Hohfeld’s platform, has been largely ignored among the judiciary and among those legal academics who embrace conventional judicial or doctrinal discourse.

In this paper, I immediately put aside the easy and obvious explanations (without prejudice) for a deeper account — namely, the suggestion that there are ongoing tensions between the Hohfeldian platform on the one hand and liberalism as well as liberal forms of adjudication on the other. The Hohfeldian platform enables us see in liberalism and its forms of adjudication certain aspects that neither endeavor might otherwise want to recognize and address.

The paper closes with an entreaty that, in this particular moment of political and legal uncertainty, legal thinkers move beyond the cloistered comforts of liberal thought and consider the organization of state and civil society in broader, even if more challenging, theoretical terms.

Forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries  (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, 2018).

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By Pierre Schlag

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