 Good afternoon. I'd first like to say many thanks to SOAS for inviting me to participate in this event. I've actually known Duncan for a very long time. The first time he met me, I was almost barely still a school girl, and that was in 1988 in the Hilton-Thompton-Blow Hotel at the ALS conference. I bet you don't remember it, Duncan, but I was wide-eyed and bushy-tailed to meet all of these critical legal studies people. And of course they didn't know me from Adam, and they were all very cliquey and unfriendly. And I was at this critical legal studies party, standing around like a wallflower, and Duncan homes in on me. And then for the rest of that party, and this is one of the things I really like about Duncan, he is so unhararchical. Whoever is the lowest on the totem pole, he homes right in on them and makes them feel important. And I remember that moment because I was incredibly disappointed. I was all geared up to meet Duncan Kennedy, the great white male guru. I was very fierce in my feminism those days, and I was predisposed to absolutely dislike him. And I was from the moment I met him, completely won over and have been ever since. So when I received this invitation, I was thrilled, thrilled to be able to come here and celebrate the scholarship of Duncan Kennedy. So moving on to what I'm going to talk about, I've been asked to talk about the relationship between feminism and critical legal studies. And I have to say, I think from the point of view of how feminists engage in law, I'm not one of these feminists that think there's a particularly distinct brand or view that characterizes a feminist position. So I see feminist engagements in law as in many ways an exemplar of other kinds of engagements. Another thing I think that's really interesting is when Duncan talked about seeing laws as an object, an object of love, as Costa said, I really identified with that because I think in many ways my engagements with feminism and law are as much about my love of law as they are about my love of feminism, although I do think there's a problem with presenting that as an object because I think one of the most distinct things about what Duncan does is that he presents law not as a text, although it involves working with texts, but he presents law as a doing. It's an action, it's something that one does. In particular, in his accounts of legal reasoning, he talks about doing law as a form of strategic interpretation. And that's what I want to talk about today because that in my scholarship, in my feminist scholarship, more than anything I have been influenced by the work of Duncan and other critical legal scholars, for example, called Claire Francis Olson, to look at law as a site for the strategic interpretation of the legal materials for progressive legal ends. And like Duncan, I'm going to do this by giving you a concrete example. And I think it's one that will be close to the heart of certainly many of the women in the room and it involves a recent judgment in the High Court given by Mr. Judge Green. And the case was DSD and MBV versus Commissioner for the Metropolitan Police. And the background of the case is the terrible tale of John Warboys, the black cab rapist. Now, as most of us in this room will know, during the first decade of the 21st century, John Warboys, in his guise as benevolent black cabbie, picked up young and often vulnerable women from nightclubs and other events and raped and or assaulted them, a drug assisted assault, in his black camp. It was estimated that during the 2002-2008 period, certainly from the number of complaints that have since been received, he sexually assaulted over 100 women. In fact, 105 complaints were received. And during that period, the police consistently, well, it's just an absolute litany of incompetence, bias, complicity. It's an appalling tale of how badly these victims were treated, how little was done to secure evidence, to follow up with witnesses, to just take the basic procedures that one has to take to build a case. Eventually, as part of a random routine computer operation, they picked up some connections between different reports by women and suddenly they acted. And John Warboys was arrested very, very quickly in 2008, not long after the Daily Mirror broke the story. So the story broke and the Metropolitan Police had to act very quickly and to cut a long story very, very short. He was arrested. He was convicted on 20 counts, 19 of sexual assault and one of rape and got his dues. And the interesting thing about all of this is those of us who have been campaigning to improve the criminal justice approach to rape have been doing so for an awful long time. And every time we talk to the police, we are told that it's all done. The policies are in place. The guidance is there. The training has been done. No worries. And yet time and time again, when studies are undertaken, they reveal huge police feelings when it comes to the management and conduct and dispossession of rape allegations. And these studies have now built up into a huge body of statistical data that a lot of pundits spend a lot of time flipping and flicking and arguing about. Because let's face it, data is just data. It's just numbers. What's amazing about this case, and it is 120 pages this case by Mr. Justice Green, is that he spends 70 of those pages with a step by step detailed factual account of everything that went wrong. It makes horrific reading. But apart from anything else, whether or not it will survive the scrutiny of appeal, it is now a public record which tells you more about how the police handle rape complaints than any of those studies, any of that data, any of those statistics. It's an incredible read. So that in itself tells you something about strategic engagement of law, that it can get this kind of issue out there into a public forum telling a story, telling two women's stories individually and in great detail and the sort of incredible political power that has. But let's move back to how all this relates to Duncan Kennedy. So these two women sued the police. Now, any of you who are tort lawyers know that when you try and sue the police for not investigating a crime properly, the courts are going to come down on you and hard and say, you can't sue in negligence. There is an immunity and tort. It's against public policy. It encourages a defense of policing, blah, blah, blah. It's all being cut down and shut down by recent case law, particularly the Smith and Van Coll cases at the end of 2010. So again, applying Duncan Kennedy's approach, if one were to look at this as I would, one's immediate anticipation on hearing that this claim had been launched was, oh boy, that's going to fail. They're just going to be thrown out of court again. And then you start to think, and this is where I'm drawing on your paper called a left phenomenological alternative to Hart and Kelsen. No, no, I'm not. I'm drawing on freedom and constraint and litigation. Sorry, I'll get to Hart and Kelsen. And then you start to think, how could I make this come out the way I want it? Anyway, and that is what Judge Green does. Judge Green is no Oxbridge clone. Judge Green got his LLB from Leicester Law School. He is a well-known human rights barrister who only in November got appointed to the judiciary. And by February, he's producing this 120-page judgment, which may or may not survive appeal. And when one reads this, it is clear from the very first line how he wants it to come out. Completely clear, and it is a brilliant example of working the raw materials in order to get an answer. Now, one of the things that's interesting about the case, and this is where I do move on to Duncan Kennedy's Hart and Kelsen and the phenomenological alternatives, okay, if you frame this as a tort problem, five minutes, if you frame this as a tort problem, then you're in very, very troubled waters because there's a lot of case law and it goes all over the place and it's very conflicting but generally negative. What does Judge Green do? In the very first paragraph, he says, this is not a tort claim. There's no tort arguments going to be made here. The tort avenue is closed. He shuts it off, closes the door, pushes away. You know what's so lovely about what he does? He doesn't just shut the tort law away. He shuts away all the policy arguments, all the policy objections to liability imposed on the place. So he says, this is what he calls, this is a settled area of law which we cannot revisit. This is what Duncan calls identifying the core and the penumbra. So he says, here's a core. We can't do anything about this. Let's look at this other bit. And the other bit, of course, is the claim under Article 3 that the police have violated these women's right to be protected from inhuman and degrading treatment. And Judge Green then does another sort of flipping of cores and penumbra because what he does is he says, well, nobody's really looked at the Strasbourg jurisprudence of this. I haven't found any articles or any useful synthesis of the case law. So I'm going to do it myself. So he spends 40 pages synthesizing the case law in such a way as to make sure that by the time you get to the end of it, you couldn't even begin to question the idea that there isn't a positive duty on the police to investigate crime where a failure to do so might violate someone's Article 2 or Article 3 rights. Now, it's brilliant the way he does it because what he does is basically take an area of huge uncertainty and he says it's totally settled, mature law. It's so settled and so mature that I have no alternative under my obligations in the Human Rights Act than to apply it. Yeah? And you know what else that makes him do? The defendants are over here kind of going, hello, hello, we've got a few arguments here, okay? But because he said the law is so settled, he disposes of their arguments almost briefly and without any particular consideration because again, it's how he frames it. They're trying to make an argument that the duty only arises when the police have actually been complicit in inflicting the Article 3 harm. For example, a death or injury in custody and that the duty doesn't arise when you have an independent third party doing the harming. But he sets up, Green, sets up the whole legal case law around independent third parties and cuts out the whole police complicity thing, says not looking at that, that's not relevant and therefore he never actually needs to deal with our argument. He simply points to the bits of the case law that support him. So let me sum up on this. In traditional jurisprudence, Hart, Kelsen, McCormick and Co. all argue that there is a core of settled law and there's a penumbra of uncertainty and a lot of the debate in jurisprudence and in the classroom and in the courts has been about how big or wide this penumbra is, okay, and where the lines are. And one of the best things that Duncan Kennedy ever did, okay, and has done many things, is quite rightly point out that there isn't a core of settled law and a penumbra of uncertain boundaries because the whole business of identifying what's in the core and identifying what's in the boundary or in the penumbra, constructing the core penumbra boundary is itself part of the business of working the legal materials. So even an area which is completely settled can be unsettled by shifting it out of the core and into the penumbra. And an area which looks really unsettled and not indeterminate can be settled by the progressive judge by shifting it into the core. That's what Judge Green does. I recommend you read the case because it is worth 120 pages. But in any event, I'm sure that somewhere in his undergraduate, LLB, in the University of Leicester, he read a left-alternative, phenomenological alternative to Hart and Kelsen. Thank you. Rob Drake, who is assistant professor at the Carmel Academic Center and co-academic director of the Minerva Center for the Humanities at Tel Aviv University, critical legal studies and post-mortems? Yes, I promised this title, but I never promised to keep my word. Yes, probably... This is the subtitle, the first title, probably, Duncan in Tahrir Square. Actually, during Tahrir Square, I was thinking how Duncan would, on the one hand, sharing the demonstrations and doing pamphlets and very enthusiastic, and on the other hand, during the night, cooling his enthusiasm with his cynicism that it might work, it might not work. So on both sides, either his passion will win or his intellect will win. And this is ironic. Distancing would allow him to celebrate to celebrate the both sides of the divide of the self between the intellect and the passion. But those who want to have it all might not have anything out of all. And this is the beginning because I think that most of the work of post-modern theory is obsessed with the question of the openness of the intellect, on the one hand, and the closure of the political. The political is the moment of action. When you do action, you exclude other actions. You just commit because it's a moment of violence because it's a moment that finality. While the intellectual needs to keep something open, it's the fear of error. And this is something that obsessed me a lot and as a leftist and as a post-Marxist obsessed me a lot as reading the work of Duncan is interesting in this part. What I'm going to do is the impossible, which is saying something about legal interpretation in Duncan, seeing how this goes up critique, the viral critique to politics and then the resistant of reconstructive projects third. This is the third move and I will, my main emphasis would be on the third move actually. So thanks. I do think that freedom and the constraint in adjudication is just marvelous piece. Not only, and this is my argument, not only for legal theory, but as one of the most sophisticated pieces in post-modern literature if we may call it post-modern literature. I'm not going to, those who are not acquainted, I'm ready for the question and answer with the piece, say something about it. But I would read the two pieces Duncan says, put together, present the experience of legal reasoning as an activity pursued in a medium that is at once plastic and resistant. They do not aim to show that legal reasoning is always indeterminate. There has never been such an argument that it's always indeterminate. So politics is within the material themselves. They're not from without. So it's not that politics enter. It's already been there. Now, ideology is not irrelevant and not the thing that gives closure at the same time. So it's relevant, but it doesn't give closure. And it's not only politics all the way down. The emphasis on only politics. Politics is everywhere, but it's not never alone. There is always a gravitational field within which politics work. So it's politics all the way down. It's all the way up. And it's all we are thrown in a situation where politics and law and normativity come together. Now, I want to say as a proposal for further research, one about decisionism, second about power knowledge, three about separation of field, and three anti-foundational theory. One, there is a residue or resonance of Schmidt decisionism, but this is not Schmidt decisionism, nor dirida decisionism, because the reading then once piece would tell you that it's not like the moment that like Poffendorf or Kierkegaard even, or Schmidt, where the image of the decision is above an normative field. I mean, all the decisionism starts as that in political theology with our God when he proclaims his law is acting outside of a gravitational field. The decision made is not out of the gravitational field, though it's not decided by the gravitational field. And I think this is a more nuanced vision of how decision is being made. It's decisionism, but not on the image of God making decision, nor the sovereign absolutely stands up above norms. Second, Foucault power knowledge. I found so much homology between power knowledge and law politics in thinking. It's always a mistake to read Foucault. It's all the way down power. It's not all the way down power, and the category of knowledge is not parasitic on power. If it's parasitic, we don't need the two categories. They are mutually constitutive, and it's interesting to see the parallels between these two arguments. Three, the impossibility of separation of the field. Duncan never says it's impossible to separate the fields. He said we don't have any scientific ground when we make any argument where the line between science and non-science is drawn. There is no scientific ground where private and public drawn. There is no non-partisan way where law and politics. They're always aligned, but we never know where the line is only exposed factum as if time comes from the future. In this sense, the image of the judge that makes decisions is actually the image of all of us making decisions every day. In this sense, if we think that judges all the time making hard cases and all of us are sort of judges and we are not Hercules, then in a way the image of the judge become not only the center of legal theory, but the center of the human predicament as thrown in a situation where material sort of run out and we have to resort to sort of ethics of responsibility and we can't lean on anything back. Now, Duncan doesn't propose counter-theory or anti-foundational theory in this sense. He just leave us without theory. There's a difference between the two. He leave us with experience. The experience of the judge that goes to that point and he leave us there. The second move is the... So this is about legal theory and how this spreads. The second move is the sort of the move from this indeterminacy if we can call it indeterminacy and it moves up to ideology, politics, philosophy. The same openness, plasticity and restraint. It's always plasticity and restraint, freedom and restraint that we experience within the legal materials. We experience when we go out from the legal materials to other categories like philosophy, etc. Now this move is not free from some problems but I would leave that aside but I would focus on what comes out from assuming that it's the right move to do. What comes out? What are the consequences of such move? If the structure has no center, that structure is the structure so if capitalism has no sort of heart that sends orders to the periphery then the whole idea that there are different social structures become problematic between capitalism and uncapitalism. The idea of capitalism doesn't dictate any form of... And that's why Duncan writes that Marx was wrong that he thought that from the fact that we're living in a capitalist system ergo-sum, these kind of things should be deduced automatically from the system. Now this is very important because if you don't know the structure of the structure means you don't know how to change the structure and where is the heart of the structure and if you have to capture the winter palace or the Bastille or where to hit the system in order to move from one structure to structure and this renders the difference between reform and revolution actually problematic because both of them are matter of degrees, not matter of equality. That's why ergo-sum, Duncan says, okay, why to suggest a reconstructive project? The project of reconstructions, when I have five minutes you will... Now I have five minutes. In one minute you'll have five minutes. Ah, okay. The project of reconstruction looks from a lift MPM point of view like the verification of fetishism of theory in a mode parallel to the fetishism of God, the market, class, law and rights. Lift MPM by contrast is caught up for better or worse in the viral progress of critique but I hasten to add once again that losing faith in theory doesn't mean living up doing theory. And here probably some of the heat in my... or some of my passion in this process both as someone that at least once was a liftist and as we do in the academia we do sometimes intellectual work. Now is this openness in theory is the death of the political or its condition? And I ask this question because here's the predicament. Too much structure, there is no need for politics because we are almost, if we do the extension, we are living in natural necessity and with natural necessity you don't do politics. But if there is no structure at all you don't do politics either because whatever you do you don't have any sense of causality that you can determine the course of action in the universe. So too much structure is bad but too little structure is bad either. Now the fact that there are too many openings in the system has its good aspects and its bad aspects. Now the typology of structure and action and this is the sort of the map that I want to put and then to ask ourselves where to locate Duncan Kennedy. I mean one version of structure is sort of, there's a structure, it's hidden the structure, it could be providence, it could be the cunning reason history has its own tellers. This is sort of some Hegelian story and this story there's not much place for the actor to do. There is structure, this is one, two there's a structure but there is an openness in the structure that the role of the agent is sort of where the structure is broken the agent can interfere and help sort of the train of history be on its track or to hasten history. This is sort of some version of Marx, I mean Marx is Hegel but with opening that is the proletariat has to do certain phase in history and then bring structure again. This is scientific utopia, it's clearly not Duncan Kennedy. Now no structure at all, the history is sort of accumulation of catastrophes. I don't think this is Duncan Kennedy either. Now no structure and no no structure, it's no structure but there is no full knowledge that there is no structure then the fact that there is the structure or not we are sort of ignorant about that and that sort of allows us to have some hope. One version of that would be Kant philosophy of history. The first version is sort of unfounded hope like people like Rorty or some version of celebrating the impossibility of hope like some deconstructionist who thinks that we need hope when it's absolutely seem hopeless and this is deconstruction in this sense brings us somehow to Christian Paul sense of hope and then we can just move to the absurd sort of like Albert Camus that there's unbridgeable gap between our action and the irrationality of the universe and there's nothing to do about it. All what we can do is just celebrate the act in itself if we don't change the world probably we can change our self and use the intensity of the action itself. Now I'm not going to locate Duncan, he should do his own work but what I would do is push Duncan in two senses. One is to do the old trick since Kant and which is deduction. Deduction is not to ask Duncan sort of your theory is Duncan assumes that we do action we try to influence etc etc and given the action is given then what image of universe one can suppose in order not to commit a practical paradox. Practical paradox by that I mean that if I act in the universe I assume that the action get me closer to my goal then I need sort of some metaphysical idea about what the structure of the universe that I'm working. When I sense he thinks that he wants to act and he preaches for acting then we need such a theory. Second and here I think Duncan owes us something Duncan on both sides I mean you did Marvel's job not writing poetry like Dostoevsky in order to tell us that reason we can get away with reason. You used reason in the fight of reason so you have reason on both sides on both sides to do critique you need reason and by sort of critiquing reason you're vindicating reason the same time so you have reason on both sides. Now to finish with the 15 seconds with the questions that I asked while you were on the panel and this is the fear of winning and whether Duncan is bringing back the pre sort of Hegelian Marxist tradition that Kant was all the time weary that some of us would appropriate the Promethean ideal of reason and to extend it beyond its limit and Kant was in this sense very very very cautious and he didn't do the mistakes that Hegel and Marx did and in this sense Kant is sort of reviving this tradition but here I want to suggest one answer that Hegel suggests to Kant when he was obsessed with the idea of the tool of reason before and he said sometimes the fear of making mistakes can't be the fear of truth itself. You can't learn to swim until you jump into the water. Thank you. We move on to Dr. Deena Wachic who joins us from Seals Pole in Paris and her broad type whether she has a subtitle yet is critical legal studies and development studies. Great first I'd like to thank you and thank Nimor for inviting me to be here. It's a great pleasure and I thank all the organizers and the discussants for what is to come. I've chosen to talk to you today about two critiques within CLS of law and economics that have very important extensions to development studies. Before I do so I want to tell you why so maybe my subtitle would be development studies studied through a critique of law and economics. The reason I choose to talk about the critique of law and economics and drawing these extensions to developing development studies is firstly because I think that it's extremely central to development studies to understand the language and the analytics that are proposed within the movement of law and economics especially the kind of development that we're talking about today in most of the global south post the Washington consensus as part of a lot of treaty and loan conditionality and general arrangements that have been promoted by international financial institutions that dictate how these development programs are to be run by the southern developing countries. So the language of law and economics provides important analytics to be able to discuss these development programs where economics and the role of the economists become extremely important and dominate a lot of the policy making framework that is being presented often at the exclusion of the jurists. Secondly I'll try to draw on a little bit of the work that I've been interested in doing for the past couple of years. I've been working on a project trying to use the tools available within law and economics to challenge some of its own mainstream assumptions while still using its language and its tools. I use a lot of data and I lose a lot of data estimation techniques and econometrics and I'm trying to benefit a little bit from the pretensions of the scientific neutrality or objectivity of law and economics and trying to place myself as a critic within the movement itself but trying to benefit of the fact that a lot of the arguments or at least the language that is being proposed has this guise of scientific methodology and while doing that being able to address issues that I think are better addressed or at least will be better received if addressed from the camp of law and economics even if only to resurrect some heterodox ideas about development that challenge some of these static goals especially related to the normative project of law and economics. So I do that with the hope that maybe a space of resistance from within law and economics can be emerged and therefore I will focus today on two critiques that I think are particularly important and I heavily borrow in what I've been talking today from the work of Duncan Kennedy to draw on these extensions of that critique to development studies. So the first critique is about efficiency and the second critique is about redistribution and in the next couple of minutes I'll try to show you how Duncan's work critiquing cost benefit analysis and his work as we heard a little bit about it in the morning about landlord tenant law especially regarding the imposition of compulsorily duties into these private law rules to achieve redistribution of wealth and income can allow us to be able to present a more nuanced critique relevant to development studies but also at the same time offer a constructive project or proposal for development in the south and I like to highlight that towards the end of my presentation. So these critiques have been integrated into heterodox development studies and as I introduced earlier at the end of each critique I'll try to present some results of my own work on market structure competition and industrial policy in the south. So starting with the critique on efficiency what I mean or what is meant by law and economics refers to the body of literature that is taught in the tradition that proposes and elaborates cost benefit analysis as a way for policymakers to be able to recommend rules to judges, legislators and administrators and mainstream law and economics proposes that courts make these decisions or make market defining private law rules according to the Calder Hicks definition of efficiency leaving all distribution questions to the legislative and active tax and transfer so there is an active or a very obvious neglect of all distribution questions despite the fact that all of these rules have distribution elements. So the efficiency talk starts from accepting the absolute rights of property and freedom of contract and when it comes to markets which is the part that I'm particularly interested in looks at or at least mainstream law and economics says that the free market system is the efficient system to lead to the best outcomes and this is only possible under perfect competition. So perfect competition plays a central role in the analysis of achieving any efficiency and any market failure is then treated through specific regulations that are aimed at restoring perfect competition which in turn will then bring about all of these great efficiency outcomes that are projected. This methodology is presumed to be uncontroversial due to the very simple premise that we are supporting a legal change in the legal regime that helps those who gain buy it more than it hurts those who lose. So it appears to utilize this objective scientific methodology that claims that it's apolitical, it is coherent and it's free of value judgment. You just see if the winners make more than the losers and if it's so then this is a good rule and so be it. However Duncan's work on his critique on cost benefit analysis shows very clearly that none of this is true. It is indeterminate, controversial, political and has a bogus air of neutrality and objectivity given a long list of political decisions or choices that the application of this methodology entails but everyone seems to ignore and then jumps to the conclusion that it's neutral and apolitical. I won't go through all of the critiques but one of the important ones is that ignoring the initial set of endowments, both factor and entitlements favors the status quo, often rich friendly rules and allows the law enforced to become the baseline of analysis. So knowing about these empty promises of efficiency I think is extremely liberating in the sense that it gives way to an equally politically motivated alternative that can guide development studies and that can allow them to break away from the neoliberal or mainstream economic prescriptions of following the perfect market competition allocative efficiency proposals. And I think this is vital to the extensions of developing studies especially that countries in the south have subscribed to that mainstream neoliberal approach following these stated goals of allocative efficiency promising to achieve that or being promised to get at these efficiencies through perfect competition and free trade but as we all know and as has been obviously shown and presented over and over is that developing countries have only plunged into more poverty, inequality, dependency and debt. All these proposals for trickle down economics have failed. The entrenched local elite and the multinational have captured most of the surplus and despite the fact that there is no holistic development policy available to show what the alternative is, those countries that have taken off have shown to have followed policies where efficiency did not play a central role in their analysis. These alternative goals are extremely wide. Some of them have focused on industrial policy, fostering national champions, promoting expert cartels and only encouraging oligopolistic rivalry but not perfect competition. So here the work for example of Alice Amsden and others show that these heterodox growth theories or countries that have followed these heterodox growth theory have outperformed those that were stuck in this perfect competition deadlock. Working on market structures myself, what I've done is I've looked at 50 developing countries and I looked at the relationship between their competitive structure and growth in the manufacturing industry since the 1960s and I've collected data to look at the relationship between competition or competitive market structure and growth in the manufacturing industry and I found that most of these countries do not grow under the assumptions of perfect competition. So what actually happens is an inverted U relationship between competition and growth. So at initial levels encouraging some competition is essential for countries to grow which might make a lot of sense because what is happening at that point is that a lot of the means of production that are controlled by a few local elite are broken up and you create some basic rivalry but then once more competition is introduced then this leads to negative outcomes and doesn't necessarily allow the country to continue on the growth trajectory. So by showing that I think it's a very nice relationship to be drawn back to the critique of efficiency, namely that all that has been said about the benefits of efficiency and its centrality to development studies in terms of focusing on allocative efficiency has actually been shown to not be the case when I collected actual data and did what they do. So I used the numbers, used the techniques that they would use to prove that many of these mainstream assumptions are actually not true. The second critique that I wanted to talk about is again the mainstream law and economics ignorance or ignorance of the redistribution of wealth and income and social power through the modification of private law rules and they argue that this should be dealt with under the tax and transfer system instead. Hence in many instances this reconfiguration of the ground rules of property and contract that define the free market and here I want to draw on Duncan's work on housing where he shows in his pieces that selective enforcement of for example a warranty of habitability as a duty factor into these lease contracts in certain specific market conditions so an important market analysis needs to be undertaken actually achieve real distribution from the landlord to the tenant. So this depends for example on the market structure in terms of how many competitors are on the firm are the landlords locked in with their investments and the same can apply to firms are the firms locked in with their investments so in that case they will not be able to they will have to carry the increase of the cost of the duty themselves they will not be able to translate that into higher prices the same with markets that are extremely elastic so when you have elastic demand again the sellers or the landlords will be not able to increase the cost of whatever they're offering and they will have to bear the cost of the duty themselves. So these compulsory terms that can be factored into these kind of arrangements do have these effect of creating that real distribution that is arguably or I try to argue also extremely important for the kind of development studies that I talked about earlier namely that firms in the south especially or regardless of which option they what kind of framework we look at but firms in the south are in many instances concentrated or the markets are concentrated so they're either just concentrated because of the earlier ISI policies where you have few industries being dominated by few firms or because of the neoliberal approach allowing privatization and then consolidation into the hands of few local elites and then mergers foreign direct investment and so on but the story is that most of these countries do have concentrated firms or concentrated markets and therefore maybe if such a compulsory duty can be factored in these contractual arrangement then some kind of redistribution can be achievable and one idea would be for example to allow firms that have a certain element of market dominance to be forced to fund something that can be called the consumer trust out of the rent that they're generating and this rent can be then redistributed back to the consumers who end up by default paying higher prices every time they buy a product of the firm that is selling under these dominant market conditions so in a way they become stakeholders into that trust they can benefit from being considered as stakeholders so not only to be compensated for any losses that they sustained but they can also be thought of as being able to receive more than just the compensation for the losses which is similar again to I draw the similarity here with Duncan's work of setting up this consumer community land trust that will allow for example the surplus extracted from the development forces to residents and then redistributed to residents in the form of limited equity residential tenure or infrastructure development in impoverished neighborhoods so these distributive objectives are achievable through these change of background rules that organize these kinds of relationship and I chose to highlight these two CRS critiques of law and economics that I think are extremely empowering and by offering this conceptual vocabulary by talking concretely or more technically about development studies that aims at achieving other things than efficiency so other predetermined social goals for example that in and of themselves are as politically driven as the efficiency criteria that just pretends to be apolitical and I just want to end by saying that using the language of law and economic can be in and of itself a strategic move to find the space within law and economics to expose the limitations and the flaws of that movement to challenge the principal foundations and to the benefit of alternative policies that can benefit for example from legal left studies such as the work that Duncan Kennedy has been writing about thank you very much much to all and thank you all for being so courteous and sticking to the time which was wonderful we now have a comment from our discussant Dr Brenna Banda from our very own school of law at Salas please okay thanks I'd like to sit here because I have this mess of notes because I was trying to listen as much as I could because I hadn't seen the papers in advance and saw some sort of short abstracts but I first want to thank you for such a rich collection of reflections on Duncan's work so what I did instead in addition to taking copious notes right now was to think about sort of three questions that came out of rereading some of Duncan's work in the last little while and I think that I've been able to sort of configure them to address the papers that he just delivered now the first question that I have and I think this is mainly directed at Joanne but of course if any of the other panelists would like to answer that would be great or indeed Duncan himself is about the extent to which the what Duncan outlines in the freedom and constraint and adjudication essay in particular which Joanne spoke to changes the orientation of law or whether the kind of legal reasoning that he outlines critiques in the sense of an imminent critique and leads to a transformation of the legal form itself so are we looking at in terms of the redrawing of the boundaries for instance between speech and property which Duncan writes about in that piece or with Joanne when she talks about the redrawing of the boundaries between tort law and between what is considered settled and unsettled my question is does this change the legal form in a foundational and more structural sense or does this reorient the law in a way that's less structural and my question I'll say comes out of a concern and not a concern an interest in theories of the legal form itself and in the first panel there was discussion of post-Marxist who are not anti-Marxist and I wanted to mention that there are an increasingly well, it's small but growing number of legal theorists who are actually taking up Marxist theories of law particularly through the work of Pashokonis but I think and this is something that was absent in the discussion I think in the first panel is the work that actually takes Marxist thought and reads it through a black radical tradition to think about how issues of race and indeed gender and sexuality need to be brought into Marxist critiques of the legal form and so that's where my own interest in this question of the legal form comes from so to put it more specifically to Joanne when Justice Green redraws these boundaries does he merely, or not merely of course it's an extremely important judgment from the sounds of it but does, is he increasing the scope for finding police the police liable for negligence or is he actually setting out a template for addressing police power and police violence that's how I would see the difference between the changing orientation and the more foundational critique of the reform okay the second thing that I was really struck by in looking at Duncan's work recently is the role of emotions in law and you know I was really struck in all of this writing about how, in your writing since you were there about how much emotional language is run through your work and I thought in many ways this really you know is very prescient when we think about a lot of the feminists and also queer theory that comes afterwards with a very strong focus on affect and emotion and I wanted to ask Reif about where the role of emotion or affect is in the questions you wanted to raise to Duncan and perhaps maybe you want to reflect on your own work but I noticed that you mentioned words like passion, fear, obsession and hope as really sort of key orienting concepts in the talk that you gave so rather than asking you a more question about the very broad philosophical canvas which you painted I wanted to ask you to reflect on the emotions and then turning to Dina's talk I wanted to, one question I have about Duncan's work is where is the place of history so in trying to understand the mode of legal reasoning and thought that Duncan navigates us through what is in the first place the history of the modes of thought that you are introducing us to walking us through and playing with where is your idea of consciousness and perception which in the freedom and constraint and adjudication piece at some point seem very relational so make me think of a Hegelian tradition and other times seem quite individual almost locking in our Cartesian in perception so I wanted to ask this question maybe this is just a question for you so the place of history comes back to the question of how we understand social formations and in Dina's talk I wanted to ask a specific question about the first critique that you draw out about the critique of efficiency now I know virtually nothing about law and economics I have to admit that so I was thinking how do I relate to what you're talking to to something that I do know a little bit about I wanted to ask you how the critique of efficiency and the cost-benefit analysis relates to more historical critiques of the place of measurement and improvement in colonial history and the colonial history that must I think prefigure your own work on the critiques of development I shouldn't presume but that's what I heard that I imagine that there's a critique of colonial history that prefigures the law and development literature so I wanted to ask about the place of history and then the last more specific point I wanted to ask about in terms of the second critique that you made and I'll end with this is I wanted to ask this idea of firms that have a lot of power creating a consumer trust for stakeholders and shareholders I wanted to ask if this is different or similar to the idea of very progressive taxation as a way of redistributing wealth and it made me think of this new book that's out which is gaining so much attention Piketty's book on capital he infamously has not read Marx and all of this now in his book there is an interesting statistic that I was really shocked by and I have to say that I've been reading reviews of the book but I haven't tackled it to myself yet but I will but the reviews of the book have pointed out that he finds that in the US over a fairly long period of time the highest taxation rate has hovered around 80% which is phenomenal because I always think of the US as a place that has extremely low rate that's what we're all told that the rich are not taxed enough in the US but what this shows is that even progressive rates of taxation have not really made a dent into the degree of capital accumulation by the elite and I think he also has some astonishing figures on the median income so kids who go to Harvard and things like that so I just wanted to ask that more specific question but I'll leave my comments there Thank you very much Brenna I propose and I'm chair so what I propose goes at the moment I suppose that's norm making rule making as we stand I thought you could all perhaps respond to the bitter questions and I thought after that as we keep talking about you Duncan perhaps you might like to if you felt like chipping in at the end after this round we'll invite you and if not I'm sorry it might cut everybody else out of it but we could talk very quickly Joanne you had a question no no this is fine question Joanne from Brenna to do with the critique of legal form yeah this is not a question I could answer quickly Brenna although it is an interesting question briefly or as briefly as I can I understand the current form of law to be contingent and historically generated I tend to be attracted to the barbarian account of the rise of this particular form of law in the context of capitalism and therefore it's eminently changeable there's nothing foundational about it within that context though I also find through Cole's account of discourse very helpful in understanding how you can work law as a form which is historically contingent in order to mould it into the ways that it comes that you want and I think so I don't think I'm doing anything particularly transformative at all and I think that one of the interesting things about Duncan's account of left phenomenological alternative is precisely that it is phenomenological and when he's talking about and also freedom and constraint similarly so when he's talking about how you might use the legal materials to get the answer you want to come out it is actually talking about his experience of working the legal materials and I find that terribly familiar and resonant not an alien account but one that actually speaks to the way in which I think the difference between the critical legal studies account of law and the traditional account of law in terms of black letter doctrine that there is far less of a gap between them than you realise it's just in one context you're looking at law as a sort of grid a set of rules and you sort of move things kind of two dimensional thing and in the other context which is Duncan's you're talking about law removing dynamic something that you do rather than something that is and I think that's closer to the experience of the practicing lawyer probably than the kind of rather ossified law that grew up in the 20th century Anglo-American Academy Thank you, Rife I don't have much to say I think the first I didn't I didn't think about this question very much but the first thing that comes to my mind is I think the concept of strategy strategic working on the materials it's already incorporated in it what the classical or traditional theory try to suppress is that that's what we do this is what's happening approach the material with incentives hopes, ideas, preferences etc and this is what there is so I think the idea of strategic approach to the materials incorporates this conception of passion emotion, fear, hope etc I think this is this throneness you're just thrown into the situation and the idea of mastery that you hear the material there and you master it or that it's out there that's the only thing I can say about this question I hope that's add something Thank you, Dina I think you had the world of history I think it's probably better about that than I do but I will respond to the point you were making in reference to how this relates to colonial history and I think what can be emphasized here is that most of that efficiency language has been superimposed on many of these countries through all of the trade agreements and conditionality and loan international financial institutions role to play so in that sense it is not something that these countries in the south and developing countries have chosen on their own to guide their development policies so in a way that would be probably if critiquing that in a way could also transcend into a critique of colonialism in the sense of the power relationships and also a class relationship because at the end of the day those who buy that rhetoric inside these countries actually the elite in force happy with that kind of rhetoric and what that would lead to exaggerated surplus and rent that they would be able to acquire and not be forced to redistribute it believing in the whole chicken down economics everyone was happy with showing off growth numbers not caring about what this does to poverty and further debt so maybe it's not a direct answer to your question but that would be a little bit of my thoughts on that I think it is exactly what I was trying to illustrate that this is not the proposal of progressive taxation so the idea is that you create a change in the rules themselves that would no longer require progressive taxation to deal with redistribution so in a sense that you have this for example selective enforcement against the firms that for example are raising their prices locally but are exporting most of their products so somehow you pick that selective enforcement for the money to be reinvested in that trust and to directly benefit those who buy so there is this very direct relationship that in a way might work out so I don't know how you would think about it but I've been thinking about maybe it could work out that everyone who buys a product from a firm that is being protected in a sense of a dominant market position would be known as receiving a coupon or something and the coupon can be cashed in at a certain point of time with the difference between the price paid and the buck for price for example and as long as they're holding that coupon they're considered stakeholders in the financial performance of the firm for example so this is force redistribution that the progressive taxation does not necessarily generate Thank you Right we have actually, thank you for being so swift we might have a bit more time so well we still have past 5 aren't we? so we have 20 minutes so I'm wondering whether we should take people have a couple of questions also and perhaps we can call on you then towards the end is that okay? Yes sir Thanks very much you and Megati from the London School of Economics Dina I just wanted to ask you a question because there's this really interesting idea or the critique that you were making about the economics movement they ran away with this notion that you can segregate distribution questions and efficiency questions and I think it was a young man called Ronald Kosu who once did a course called Commercial Law at the LSE who went over to the University of Chicago and got them all on board with this idea that you could separate the two I was just wondering what you thought about a sort of newer idea that's been coming along that fairness questions do actually matter for efficiency there are efficiency consequences for inequality now you see that writ large with Piketty's book which I suppose is all on our reading list now and you can also see it in micro experiments people have treated unfairly at work if there's big disparities in pay when people do the same job we can show experimentally empirically that it has efficiency consequences and I think that's something that really undermines the law and economics argument I wouldn't agree more but I think what I was also trying to highlight is that efficiency in and of itself can be totally replaced and that's the thing so we do not need to organize anything with efficiency as the ultimate goal and I think that's the legacy of the mainstream law economics that they've convinced everyone that everything even if we interject concepts of fairness we're only talking about fairness as to how much this will promote efficiency but that isn't the thing at all because efficiency in and of itself is a political choice and so could fairness be so we just say we want to organize the market so that it's fair we want to organize the market so that we promote something totally different other than any of these concepts if they don't know I'm going to call on them to ask a question that's all Christopher come along we're going to run out of time soon yes Paul, your next Chris thanks very much Paul O'Connell from SOAS also Dean as well I found the presentation really interesting and the question raised behind me but the question is efficiency of what so the whole point about law and economics I often wonder if they believe their own rhetoric the triumph of law and economics wasn't because the ideas particularly in the legal the triumph of law and economics in the US wasn't because the ideas were so much sharper so much more persuasive than what the left had to offer they were just better funded Duncan hinted at this when he talked about this movement I've forgotten the guy's name now but a former weapons manufacturer and chemical, not chemical weapons chemicals and weapons separately the all in foundation millions into the quantum law and economics and so I wonder when you were giving your talk it brought Audrey Lord to mind and the idea that the master's tools will never dismantle the master's house and to what extent we could sort of use the language which is a class weapon economics isn't like any set of ideas it's not an abstract set of useful ideas it's a class weapon it's ideas that perform a very particular function in a very particular historical period so the dangers and the pitfalls of trying to flip it or should we just entirely reject it so I'll just ask that question so I think that's an excellent point because you definitely there is a big debate of what efficiency are we talking about so is it wealth maximization is it calder-hicks which is also wealth maximization Pareto efficiency allocative efficiency dynamic efficiency so I think there is a lot of also debates within law and economics as to what efficiency to use but I think I'll say the same thing again that I think the important or what I was trying to work with to use the language and the analytics of law and economics to critique it from within so I do think that there is a space to work with these kind of things and I think that's also what I found in Duncan's work is that these concepts are analyzed, are dealt with and maybe to offer that space to offer something instead or enough to show that by creating that deconstructive project that there isn't much left there to work with could also be the case okay, thank you I'm going to, would you would you be able to say a few words in response to these amazing papers this afternoon? I'll just make a couple of very I thought I'd respond to the commentary so the papers were fantastic it's sort of embarrassing I feel somewhat embarrassed I don't want to just say you are on the spot I love the papers but I'm more interested in the questions so here's the way I would answer the questions and maybe for a moment it would be interesting to heighten the contradictions within the critical camp so let me make just a couple of remarks about these comments so I think in critical legal studies there was a moment in the late 70s when there was an internal discussion about Pashokanas in which one of the, is the group constituted itself there were a bunch of people who, the post-Marxists were of many different strands the dominant post-Marxists of whom I am one were early Marx people we were into the essay on the Jewish question the communist manifesto the grundrissa and the economic philosophical manuscripts so that was where we were coming from we were really into Pashokanas and that produced an argument the Pashokanas people lost, maybe that was an historic tragedy for critical legal studies the Pashokanas position as it appeared in CLS was basically the idea that there's a law of the commodity and the legal form is linked to the concept of the commodity we thought that was nonsense and we worked hard in direct combat with our comrades all internal to the movement over whether it made any sense there was any intelligible way that the commodity and what we accused them of that Marx in this respect was warmed over a savigny that Marx's concept of the law of the Pashokanas concept of the law of the commodity was basically just saying that a particular early 19th century, mid 19th century and late 19th century European conception that law has an essence and the essence is rights and the rights reduced to property and contract and that that so Marx just took it over whereas the whole history of legal thought after 1870 was the history within legal thought of rejecting the legal model that Marx incorporated into his understanding of the commodity so I wrote an article as part of this debate called the role of law and economic thought essays on the fetishism of commodities where I tried to take on the part of the capital that deals with the question of fetishism of commodities because that's where Pashokanas got the whole thing according to me so you're referring to just a deep fascinating debate which you might find interesting in which when I say we won we won partly through power because we were legal realist Americans and the people arguing for Pashokanas were sociologists and therefore we just said you've never been to law school buddy you have no idea what we're talking about commodity form, property contract and we stayed in the movement but it was just like a typical example of intra-left battle maybe we were wrong and what's happening now is my new serious Marxist students whom I have three at Harvard Law School they're threatening to revive Pashokanas and also the idea of a Marx of a Hegelian of a Hegelized version of Marx in which the true Marxist position is a materialist dialectic of liberation again something we had a big battle about but there's nothing no reason why we can't have this again in every generation we could even do it every five years it's really fun I really really like it so that's my reaction to the first thing the history thing so a lot of critical of the studies is about the history of legal thought and the forms of reasoning and the question of colonial history is very central to the way in general CLS people have tried to understand abroad from the point of view of America that is anything west of Cambridge or east of Cambridge so but I think that another interesting way to understand the project this is also responsive to your question is that the current form of neoliberalism okay let me put it in provocative terms I love neoclassical economics I love it I majored in economics I love graphs and I love trying to prove things plausibly with graphs and I think that the problem the reason why law and economics of a neoliberal reactionary variety one was only to a very limited extent because of the Olin Foundation it's true that they poured exactly as you said millions and dollars into it building it up as an explicitly right wing way to attack the liberals not us I didn't give a shit about us but the liberals the liberals had a problem which is many of their economic proposals and many of their foundational ideas look stupid to a person with a neoclassical economics background and I'm one of those people so it really was the case that they wanted to discuss landlord-tenant without discussing the question of whether the particular reform would hurt tenants they believed in rights of tenants or they believed because the form of the reform was to increase legal entitlements for tenants it must therefore be good for tenants so we a basic defining another battle inside critical legal studies this was a battle not between the post-Marxist and the Orthodox it wasn't that it was between the humanists and rights believers who hate law and economics because it is a loathsome macho unbelievably the passions behind law and economics are sinister and dark passions and they're so gendered that basically any boy who identifies with girls says I don't know any economics but blah blah blah blah so again a goal here was to deal with this gendered dynamic which is not just boys and girls because feminized boys boys are all organized around the same spectrum so there was an enormous all good American 60s leftist boys have deep feminine identifications even if they're macho blowhards who also are identified in some way on the other side they hated economics and they believed you cannot dismantle the master's house with the master's tools and besides we can't use those tools therefore they cannot dismantle the master we can't use them so a very big agenda here was to repel that to fight back against it in the same way as fighting back against the boyish and girlish loathing of technicality and law a basic idea of critical is to embrace technicality embrace technicality of each of the possible critical disciplines in neoclassical economics is as powerful or more powerful to my mind as a critical discipline as the Marxist tradition partly because I think the labor theory of value has been a catastrophe for the left although I know that a very large number of people who I respect and have worked with very much really disagree with that so that would be the kind of these are debates that are the debates inside critical of the studies for the passion thing I'm glad you asked I thought Reff's answer to that was pathetic given the talk that he gave and I think you should just go back and say Reff could I ask you the same question again because I do think that in my work that you're absolutely correct in what you said about my work but also about his work even ever you know breathe a long breath without putting together this passion reason the recent non-reason passionate reason non-passion, non-reason um oh I said