AMERICAN LAW IN THE AGE OF HYPERCAPITALISM: THE WORKER, THE FAMILY, AND THE STATE by Ruth Colker. New York: New York University Press, 1998. 251 pp. $50.00 Cloth, $17.50 Paper. ISBN 0-8147-1563-X.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: rbrisbin@wvu.edu.
 

In this sprightly book, Ruth Colker of the Ohio State Law School attacks what she defines as the ideology of "hypercapitalism" embedded in American judicial decisions and statutes. Hypercapitalism, she claims, adversely affects the lives of economic and social outsiders. In presenting her critique, she takes aim at the normative arguments of scholars and judges, such as Frank Easterbrook, Richard Epstein, Richard Posner, and Daniel Manion, whom she associates with the law and economics movement and the support of hypercapitalism. After an introduction that briefly attempts to define her terminology, the views she is criticizing, and the form of capitalism she would find acceptable, the bulk of Colker's book presents a critique of their policy proposals and general American policy affecting groups of economic and social outsiders. She also offers remedies for the problems that she finds that hypercapitalism has created for various outsiders. As remedies for these problems, in each chapter she suggests the adoption of the judicial decisions, statutes, and policy experiences of other nations, especially Canada, Britain, Australia, and the European Community.

In particular, Colker's chapters on hypercapitalism in American law address affirmative action law, disability discrimination, family and medical leave legislation, sexual orientation discrimination, and the status of legally "unprotected" workers. Her chapter on affirmative action starts with a critique of Posner's economic analysis of affirmative action, focusing on the limitations of his and Manion's application of the efficiency criterion to a range of educational and hiring practices. As an alternative, she suggests the adoption of Canadian Charter language and affirmative action law and the logic of Canadian constitutional decisions in the United States. Her chapter on disability discrimination offers a broad criticism of a range of judicial and administrative decisions that she finds to have narrowed the legal protection of the employment of the disabled. Her discussion of remedies suggests the greater value of Australian, British, Canadian reasonable accommodation case law and statutes for the inclusion of the disabled in the workforce.

Beginning with criticism of Posner, Epstein, and judicial decisions, the chapter on family and medical leave expresses her desire to provide greater protection for fetuses and children after birth, to grant family medical leave, and to confer health insurance on unemployed parents. She then offers a range of Canadian and European options to American law and administrative policy on these issues. Focusing on the "militarism and moralism" of federal administrative rules and Supreme Court decisions affecting the rights of gays and lesbians, her chapter sexual orientation discrimination argues for the adoption of the logic of various Canadian and Australian judicial decisions and administrative rules. In the final chapter, she presents a wide-ranging commentary on the plight of domestic and temporary workers, the adverse consequences of at-will employment law, and the insufficiency of federal and state statutes governing plant closings. She posits that the childcare policies, law on employment termination, and layoff negotiation policy of several industrialized nations would effectively counteract the harmful effects of American law for workers in these categories.

Colker's book has considerable polemical force. She conveys great sympathy with the plight of the social and economic outsider sorely lacking in many discussions of American law and policy. Although none of her criticisms is new, together they present an unrelenting assault on the normative assertions commonly made by conservative legal scholars and jurists and the economic, racial, and sexual biases present in American law. The comparative examples suggest that there are alternative paths which might generate policies more conducive to the fulfillment of human potential or greater social equality.

However, as often occurs with the advocative style commonly adopted by law professors, two aspects of Colker's argument will present problems for many political scientists. First, there is a problem of causality. She specifies that the root of the five categories of social problems is "hypercapitalism" or "a capitalism that is overly enamored of laissez-faire economics and insufficiently concerned with our health and well-being" (p. xi). The lack of specificity in this definition of her central causal variable is not cured in the later stages of her argument. Is hypercapitalism a Marxist commodification of labor? Or, in the language of scholars influenced by Michel Foucault such as Peter Miller, Nikolas Rose, and Jonathan Simon, is it the expansion of the governmental of persons through corporate and state adoption of actuarialism and depersonalized economic measurement? Or, is it an empirically measurable phenomenon with some definable parameters?

More critically, Colker's five substantive chapters often drift away from illustrating how either the economic denomination of human behavior by jurists using law and economics analysis or the situation of unequal economic power causes the harms which she describes. Especially the chapters on affirmative action, family and medical leave, and sexual discrimination imply that the harms to the subject class of persons are as much a result of racism, sexism, or homophobia as hypercapitalism. Indeed, hypercapitalism legal argument appears as a mask covering the truth of racial or gender discrimination. Although these chapters recite how law and economics analysis or corporate power support inequality, Colker needs to consider more closely how capitalist scholarship and wealth often interact with assumptions about the normal and the different in shaping unequal sociopolitical relations.

The second problem is that Colker ignores any discussion of political actions through which her suggested reforms might be adopted and implemented. As with many advocates of legal reform, Colker pays little attention to the development of a strategy and tactics for the adoption of the Canadian, British, or other policies she prefers. This problem has two dimensions. First, she needs to assess the feasibility of her reform strategy as a cure for the problems of hypercapitalism which she describes. In this regard, it would be helpful to know what sort of capitalism she envisions. Her discussion of the difference between hypercapitalism and the capitalism of Adam Smith (pp. 21-22) is so brief that it fails to provide much insight, and her concluding vignette entitled "Medina's Story" strangely bypasses the entire issue of capital and power in an effort to describe a just society without hypercapitalism. It also would be helpful to have an assessment of the success of the policies of other nations she lauds in eliminating racial, sexual, and economic harms. By addressing these concerns, she could significantly buttress the argument about both the normative worthiness of her policy strategy and the reasonableness policy alternatives included in her reform strategy.

The other dimension of this problem is the lack of any specification of tactics for legal change. As in many publications by lawyers and law professors, Colker simply assumes the American state can adopt the law developed in other nations and make the world better. This legalistic assumption about reasonableness tactics for the creation of a just society is problematic. Proposals to dislodging the power of corporate wealth and the discourse of hypercapitalism by changing a law or offering a different discourse in a judicial opinion -- or abandoning the racist, sexist, and homophobic underpinnings of American social relationships through litigation and legislation -- do not necessarily change political or social preferences or the most important institutions and opportunities for the exercise of power. However, Colker never considers this problem. Indeed, she does not assess the probability that the incremental legal reforms she suggests could ever be enacted in the first place.

Despite these lapses in her discussion of strategy and tactics for the control of hypercapitalism, Colker has written a book that teachers might utilize to stimulate debate about either the shape of a just society or how the distribution of political and economic power and assumptions about identity and difference establish a political bias in American law. However, in encouraging the debate teachers might also want to encourage students to consider whether more transgressive resistance, such as protests and direct political action -- might be better suited than legal change as a tactic for building a just society and eliminating the political, economic, racial, and gender biases embedded in American law.