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2012 The lP ace of Law in Ivan Illich's Vision of Social Transformation Bruce K. Miller Western New England University School of Law, [email protected]

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Recommended Citation 34 W. New Eng. L. Rev. 507 (2012)

This Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. 32073-wne_34-2 Sheet No. 88 Side A 08/21/2012 07:54:18 , I­ LL L IMES , I -T INANCE UDT F

J 1 ARD H 20-AUG-12 15:22 ONY RESIDENTIAL HE P : T RIUMPH OF took care never ? 2 T

OW HE (2012); T EAGAN Western New England Law : T N Seq: 1 Seq: R (2011). IGHT ILLIONAIRE R REED * B G LLICH ONALD RESENT I P , R ILLER HY GE OF ITY THE unknown M 507 , A , P : W TO THE RANK RUCE OMEBACK OF THE ADRICK F , 1970 B C M (Apr. 4, 2009, 8:45 AM), http://appalachianconservative. January 20, 1981 If he was more than adept at using the infa­ If he was more than adept at using , 3 EFF HOMAS MERICA T NLIKELY A NTRODUCTION U I (2010); J ONSERVATIVE C AND Mark W. Peacock, Ronald Reagan Quotes on Government and Liberty ECLINE OF L D Inaugural Address See generally See Professor of Law, Western New England University School of Law. Professor of Law, Western New England University to Thanks for expert editing; and to Marcella Haynes for patience and painstaking produc­ for expert editing; and to Marcella Haynes , http://www.reagan.utexas.edu/archives/speeches/1981/12081a.htm (last visited THE PLACE OF LAW IN IVAN ILLICH’S ILLICH’S IN IVAN OF LAW THE PLACE In the spring of 2011, when this conference on the thought of 2011, when this conference on the In the spring of At first, these attacks were mainly indirect. At first, these attacks were mainly Pres­ example, For VISION OF SOCIAL TRANSFORMATION TRANSFORMATION OF SOCIAL VISION 2. * 1. 3. PPALACHIAN ARES THE WINDLE AND THE M K Ivan Illich was convened, the New Deal consensus in American convened, the New Deal consensus Ivan Illich was finally to be played out.politics seemed apparent atrophy had Its coming.been a long time electoral triumph of Beginning with the politicians in 1980, and perhaps sooner, anti-liberal Ronald Reagan with increas­ appealed to the American electorate had successfully fashioned during on the reformist ideology ingly forceful attacks Roosevelt.the long presidency of Franklin was ad­ This ideology successors, and would be suc­ hered to by Roosevelt’s Democratic of John Kennedy and of cessors, through the administrations of Hubert Humphrey. Lyndon Johnson and the candidacy BRARY ident Reagan, despite his pithy and memorable criticism of the ca­ ident Reagan, despite his pithy and the national government, to pacity of government, especially (“[G]overnment is not the solution improve American domestic life the problem[,]”) to our problem[s]; government is F S \\jciprod01\productn\W\WNE\34-2\WNE209.txt Jennifer Levi and the members of the Illich Reading Group for organizing this Confer­ Jennifer Levi and the members of the Illich J.D. Western New England University 2012, ence and Symposium; to Raquel Babeu, and staff of the for exceptional research help; to the editors Review tion help far beyond the call of duty. to urge the dismantling of the specific institutional achievements of to urge the dismantling of the specific New Deal liberalism. AND THE wordpress.com/2009/04/04/ronald-reagan-quotes-on-government-and-liberty/ (provid­ ing a list of famous Reagan quotations). May 24, 2012). A C Y 32073-wne_34-2 Sheet No. 88 Side A 08/21/2012 07:54:18 A 08/21/2012 88 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 88 Side B 08/21/2012 07:54:18 R R M K C Y 11 OEL MER­ 7 , Aug. 34:507 34:507 availa­ A & J CONOMICS IMES [Vol. E VOLUTION OF 20-AUG-12 15:22 . S1 (1991). E IDE UTURE OF S EV ERGUSON HE , N.Y. T F F 218-52 (2011). : T , Nov. 19, 2007, http:// L. R UPPLY II (1997); Leonard Silk, : S AR IMES HOMAS Seq: 2 Seq: T EVENTIES W S ORDHAM , June 19, 1985, § D, , June 19, 1985, § at 2, EYNESIANISM HE ORLD , N.Y. T President Reagan did not K IMES , T W , 59 F 10 EMOCRATS AND THE EAGONOMICS Nevertheless, though willing to Nevertheless, though D , R See generally 8 unknown ASTARD , N.Y. T Reagan was quick to reassure that was quick to reassure Reagan CHULMAN , B 4 The Strike that Busted Unions S Similarly, although President Reagan although President Similarly, 5 ARTLETT RUCE http://www.nytimes.com/2011/08/03/opinion/reagan-vs­ URGEON B ECLINE OF THE R. B T OLICYMAKING SINCE D note 5, at 233. note 5, at 231-32. P HE RUCE YNN B L : T Foreword: . . . And Backward: Death and Michael P. Malloy, Foreword: . . . And Backward: Death and supra supra , , And, while publicly espousing the virtues of “sup­ And, while publicly espousing WESTERN WESTERN NEW ENGLAND LAW REVIEW URN 9 T (1986). HINKING AND the safeguards offered by public insurance agencies es­ offered by public insurance agencies the safeguards Paul Krugman, Republicans and Race IGHT 6 T (1982) (providing a background and history of the Laffer Curve). CHULMAN CHULMAN See generally See generally Joseph A. McCartin, Op-Ed., See See id. See generally See generally S S ,R OLITICS http://www.nytimes.com/1985/06/19/business/economic-scene-is-reagan-a-keyne­ By 2011, things were very different. Most Republican mem­ President Reagan is further often credited (or blamed) for trig­ is further often credited (or blamed) President Reagan P CTION 11. 9. 4. 5. 10. 7. 6. 8. A OGERS CONOMIC hesitate to adopt expansionary fiscal policies (albeit chiefly in the hesitate to adopt expansionary budgets) as an antidote to the form of deficit spending on military his prospects for re-election. deep 1982 recession that threatened same base of his firm commitment to the preservation of the social preservation of to the of his firm commitment same base the pil­ and Medicare, of Social Security and especially safety net, held that net aloft. lars that IN bers of Congress had pledged never to permit an increase in federal bers of Congress had pledged never gering the now three-decade decline in the power and rights of or­ decline in the power gering the now three-decade his decision to end of the exemplary force of ganized labor, because greeted his inaugu­ air traffic controllers that the strike of unionized the strikers. ration by terminating E R 508 who of those outrage the to stoke caricature queen welfare mous base, be called his would now \\jciprod01\productn\W\WNE\34-2\WNE209.txt ICAN . www.nytimes.com/2007/11/19/opinion/19krugman.html?scp=17&sq=&st=nyt act forcefully against the interests of labor, Reagan never criticized the interests of labor, Reagan act forcefully against by the Wag­ of collective bargaining enacted the legal foundations pride of his own background as a ner Act, and often spoke with union leader. patco-the-strike-that-busted-unions.html?scp=1&sq=&st=nyt. 2, 2011, at A25, available at also successfully promoted significant deregulation of the banking of the significant deregulation promoted also successfully industry, ply-side” economic policies and Laffer curve-inspired tax cuts for ply-side” economic policies and the investing and managing classes, Transfiguration Among the Savings Associations tablished during the New Deal protected depositors, with his bless­ the New Deal protected depositors, tablished during and excesses. caused by the resulting scandals ing, from losses Economic Scene; Is Reagan a Keynesian? ble at sian.html. 32073-wne_34-2 Sheet No. 88 Side B 08/21/2012 07:54:18 B 08/21/2012 88 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 89 Side A 08/21/2012 07:54:18 . 509 ASH IMES IMES , Jan. ISCAL T Many , F , W IMES 16 , N.Y. T (Dec. 8, 2011, 20-AUG-12 15:22 INANCIAL , N.Y. T Congress re­ , F 15 In August, they they In August, OLITICO 12 , P Seq: 3 Seq: (July 6, 2011, 12:15 PM), http:/ IMES http://www.nytimes.com/2008/10/04/ , N.Y. T unknown In the aftermath of the 2008 finan­ of the In the aftermath 13 But despite the presumed (since the New But despite the presumed (since 18 But notwithstanding widespread consensus But notwithstanding http://www.nytimes.com/2011/01/26/business/economy/26in­ 14 17 , Oct. 3, 2008, at A1, available at IMES (Aug. 1, 2009, 12:00 EDT), http://www.bloomberg.com/apps/news?pid= President Obama proposed only very modest economic President Obama proposed only Sewell Chan, Financial Crisis Was Avoidable, Inquiry Finds Ezra Klein, Paul Krugman vs. the White House: Stimulus Edition , Bailout Plan Wins Approval; Democrats Vow Tighter David M. Herszenhorn, Bailout Plan Wins Approval; Democrats Charles Babington, Norquist Bullies GOP into No-Win Tax Position Bob Willis, U.S. Recession Worst Since Great Depression, Revised Data Show Hal Scott, Little to Celebrate on Dodd-Frank’s Birthday Charles Postel, Why Norquist’s Pledge is Different Cyrus Sanati, 10 Years Later, Looking at Repeal of Glass-Steagall 19 LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW ­ (July 3, 2011), http://www.thefiscaltimes.com/Articles/2011/07/03/AP-Norquist The 2008 panic spawned a deep and ruinous recession, the The 2008 panic spawned a deep , N.Y. T (Dec. 21, 2011, 4:11 PM), http://www.washingtonpost.com/blogs/ezra-klein/post/ 15. 19. 14. 13. 18. 17. 12. 16. LOOMBERG IMES OST M K mained unwilling to restore much, if any, of that structure. to restore much, if any, of that mained unwilling Deal) efficacy of aggressive, counter-cyclical, Keynesian fiscal poli­ Deal) efficacy of aggressive, counter-cyclical, unemployment the recession cies in countering the widespread caused, business/economy/04bailout.html. newsarchive&sid=aNivTjr852TI. paul-krugman-vs-the-white-house-stimulus-edition/2011/08/25/gIQAQ5gt9O_blog.html; paul-krugman-vs-the-white-house-stimulus-edition/2011/08/25/gIQAQ5gt9O_blog.html; Paul Krugman, The Obama-Keynes Mystery among economists that these policies could never have been imple­ that these policies could never among economists and investment the gradual demise of the banking mented but for established by the New Deal, regulatory structure Bullies-GOP-into-No-Win-Tax-Position.aspx#page1. Bullies-GOP-into-No-Win-Tax-Position.aspx#page1. Rules PM), http://www.politico.com/news/stories/1211/70111.html. 9:33 PM), http://www.politico.com/news/stories/1211/70111.html. worst since the Great Depression that ushered in Franklin worst since the Great Depression Roosevelt’s presidency. B (July 19, 2011,11:45 PM), http://www.ft.com/cms/s/0/7fcc735e-b257-11e0-8784-00144fea bdc0.html. T ­ (Nov. 12, 2009, 2:24 PM), http://dealbook.nytimes.com/2009/11/12/10-years-later-look ing-at-repeal-of-glass-steagall/. 2012] 2012] the consequence. no matter wealthy, on the taxes \\jciprod01\productn\W\WNE\34-2\WNE209.txt cial collapse and resulting panic, the federal government quickly government panic, the federal and resulting cial collapse infu­ capital with massive loss to much of the resulting socialized whose policies to many of the very institutions sions of public funds produced the crisis. 25, 2011, at A1, available at quiry.html?scp=2&sq=&st=nyt. P economists and fiscal experts thus believed that the practices and fiscal experts thus believed that economists and largely in­ issued in the 2008 collapse remained relationships which occur in the fore­ similar crisis was likely to tact and that another, seeable future. showed themselves willing, even anxious, to enforce this pledge to enforce this even anxious, themselves willing, showed its obliga­ the first time on defaulted for U.S. Treasury even if the creditors as a result. tions to C Y 32073-wne_34-2 Sheet No. 89 Side A 08/21/2012 07:54:18 A 08/21/2012 89 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 89 Side B 08/21/2012 07:54:18 M K , C Y 23 2008 34:507 34:507 , N.Y. , July 24, [Vol. RISIS OF IMES Obama Again See generally 20-AUG-12 15:22 25 C http://www.nytimes. http://www.nytimes. , N.Y. T ector unions, whose 26 , July 21, 2011, http://articles. Seq: 4 Seq: and simultaneously to and simultaneously 22 IMES CONOMICS AND THE E By the late summer of 2011, By the late summer http://www.nytimes.com/2009/07/17/busi­ , L.A. T 24 unknown / http://www.nytimes.com/2011/02/15/us/politics EPRESSION D And despite the clarity with which recent which recent the clarity with And despite House Republicans Propose $4 Trillion in Carl Hulse, House Republicans Propose $4 Trillion in , Feb. 11, 2009, at A1, available at , Apr. 4, 2011, at A13, available at 21 http://www.nytimes.com/2011/07/24/opinion/sunday/24sun4. http://www.nytimes.com/2011/07/24/opinion/sunday/24sun4. IMES IMES ETURN OF R HE WESTERN WESTERN NEW ENGLAND LAW REVIEW (Sept. 7, 2011, 9:01 PM), http://www.washingtonpost.com/blogs/the­ , N.Y. T , N.Y. T , T OST Michael A. Memoli, Lisa Mascaro & Christi Parsons, Michael A. Memoli, Lisa Mascaro & Steven Greenhouse, Democrats Drop Key Part of Bill to Assist Unions . P , July 16, 2009, at A1, available at By the time of the Illich conference, Congress and the Pres­ conference, Congress of the Illich By the time Teresa Tritch, Op-Ed., How the Deficit Got This Big Rachel Weiner, Rick Perry Repeats Social Security is ‘Ponzi Scheme’ State­ See id. See See David M. Herszenhorn & Carl Hulse, Deal Reached in Congress on $789 Bil­ Obama’s Budget Focuses on Path to Rein in Deficit Jackie Calmes, Obama’s Budget Focuses on Path to Rein ASH RUGMAN 20 IMES , Feb. 15, 2011, at A1, available at The legal underpinnings of collective bargaining were also of collective bargaining The legal underpinnings K , W 22. 25. 23. 24. 26. 20. 21. IMES AUL Cuts Over Decade adopt, then reinstate, significant cuts in federal income tax rates, significant cuts in federal adopt, then reinstate, ident seemed unable to envision what role, if any, the federal role, if any, the envision what unable to ident seemed or promot­ demand increasing economic might play in government ing employment.to the nation’s had turned their attention Instead fiscal deficit. long-term com/2011/04/04/us/politics/04spend.html. 15obama.html?pagewanted=all; ment latimes.com/2011/jul/21/nation/la-na-debt-white-house-20110721. under siege by the time of the Illich Conference.under siege by the time of President strengthen organizing rights for a Obama’s fainthearted proposal to labor movement had died a quick much diminished private sector Congress. and mostly silent death in a hostile /krugman.blogs.nytimes.com/2011/07/06/the-obama-keynes-mystery/. /krugman.blogs.nytimes.com/2011/07/06/the-obama-keynes-mystery/. P 510 Con­ skeptical by a further trimmed were which measures, stimulus gress. so-called entitle­ fiscal concern was largely on the the focus of their ment programs—Medicare, crown jewel of Medicaid, and even the Social Security. New Deal reform, \\jciprod01\productn\W\WNE\34-2\WNE209.txt 2011, at SR11, available at html. Presses for a ‘Grand Bargain’ on Debt Ceiling increases in this deficit could be traced to the nation’s decisions to deficit could be traced to the nation’s increases in this expensive overseas wars embark on two membership ranks remained relatively robust in relation to their membership ranks remained relatively fix/post/rick-perry-and-mitt-romney-come-out-swinging-in-reagan-debate/2011/09/07/gI fix/post/rick-perry-and-mitt-romney-come-out-swinging-in-reagan-debate/2011/09/07/gI QAhygcAK_blog.html (internal quotation marks omitted). ness/17union.html. (2008). lion Stimulus Plan T com/2009/02/12/us/politics/12stimulus.html. com/2009/02/12/us/politics/12stimulus.html. one Republican candidate to oppose President Obama’s 2012 re­ candidate to oppose President one Republican scheme” based on Social Security as a “Ponzi election bid described and seemed to call for its abolition. a “monstrous lie,” N.Y. T 32073-wne_34-2 Sheet No. 89 Side B 08/21/2012 07:54:18 B 08/21/2012 89 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 90 Side A 08/21/2012 07:54:18 R , , , 511 OST IMES but P 29 , N.Y. T 20-AUG-12 15:22 (Sept. 16, 2011), J. 1, 1-5 (Jan. 17, UFFINGTON

31 , H IMES

http://www.aft.org/pdfs/ APITOL C Seq: 5 Seq: , L.A. T ET . N T Ohio Vote on Labor is Parsed for http://www.nytimes.com/2011/11/10/us/ unknown The Conscience of a Liberal: Ted Kennedy found themselves under ferocious po­ ferocious under themselves found

, XVIV, No.2 S 27 More fundamentally, they were unwill­ More fundamentally, ­ http://www.nytimes.com/2011/06/15/us/politics/15wis 32 , PBS (July 23, 2004), http://www.pbs.org/now/politics/ successfully urged the repeal of collective bar­ of collective urged the repeal successfully 30 (Winter 2011-2012), at 14, available at note 1. , Nov. 9, 2011, available at www.statenet.com/capitol_journal/01-17-2011/pdf. supra , IMES DUCATOR State governors, most notoriously in Wisconsin most State governors, As a consequence, an ever more confident and deter­ an ever more confident and As a consequence, . E (Aug. 26, 2009, 9:54 PM), http://krugman.blogs.nytimes.com/2009/08/26/ted­ 28 RANK M Wisconsin Court Reinstates Law on Union Rights Monica Davey, Wisconsin Court Reinstates Law on Union Bipartisan, But Unfounded: The Assault on Teachers’ Richard D. Kahlenberg, Bipartisan, But Unfounded: The Assault on Robert Reich, The Shameful Attack on Public Employees Sabrina Tavernise & Steven Greenhouse, Sabrina Tavernise & Steven Greenhouse, F Korey Clark, Pension Peril See Defining Liberals 33 LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW , A , N.Y. T IMES available at But if the ideology that supported the New Deal was in tatters But if the ideology that supported Worst of all, the achievements of the New Deal seem to be achievements of the New Deal Worst of all, the 29. 28. 27. 30. 33. 31. 32. M K ing or unable to offer a coherent ideological defense of liberal offer a coherent ideological ing or unable to reform. mined conservative assault on the programs and institutions created assault on the programs and mined conservative from either theoretical or practi­ by the New Deal seemed immune cal challenge. disarray, for many Americans and its accomplishments in apparent burned brightly. the reform impulse nevertheless enthusiasm The that was germinating as the of the Occupy Wall Street Movement strong evidence of its persis­ Illich Conference convened provided litical attack. rights of the bargaining politicians blamed Many of poor the education problems plaguing unions for the teachers’ children. . http://articles.latimes.com/2011/sep/16/opinion/la-oe-adler-teachers-20110916 N.Y. T ­ (Jan. 5, 2011, 9:14 PM), http://www.huffingtonpost.com/robert-reich/the-shameful-at tack-on-pu_b_805050.html. Unions going down without a fight. going down without politi­ liberal self-identified Formerly label. cians ran from the 2012] 2012] counterparts, sector private \\jciprod01\productn\W\WNE\34-2\WNE209.txt also in other states, also in other Omens consin.html. June 14, 2011, at A14, available at gaining rights for most public sector workers.rights for most public gaining state and local And were the frequent retirement pensions that government employee places to be ripe of these rights seemed in many fruit of the exercise with apparent public acquiescence. for repudiation, americaneducator/winter1112/Kahlenberg.pdf; Saul Rubinstein, Charles Heckscher & americaneducator/winter1112/Kahlenberg.pdf; Paul Adler, Op-Ed., Moving Beyond ‘Blame the Teacher’ kennedy/. politics/ohio-vote-on-collective-bargaining-is-parsed-for-2012-omens.html. 2011), liberalism.html; Paul Krugman, Op-Ed., C Y 32073-wne_34-2 Sheet No. 90 Side A 08/21/2012 07:54:18 A 08/21/2012 90 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 90 Side B 08/21/2012 07:54:18 R R M K C Y He The and 34:507 34:507 36 41 37 [Vol. , Feb. 1, 2010, 20-AUG-12 15:22 HALLENGES OF 42 C where he first 38 HE T

in , ONSERVATIVE Seq: 6 Seq:

. C LLICH M I A HE VAN , T I unknown Dismissed from the university post Dismissed from the university post 39 (Nov. 28, 2011), http://www.newyorker.com/reporting/ (Nov. 28, 2011), http://www.newyorker.com/reporting/ ITUATING S note 35 note 35, at 9-10. I. ORKER Y supra supra EW WESTERN WESTERN NEW ENGLAND LAW REVIEW N HE Illich trained to be a Roman Catholic parish priest. Illich trained to be a Roman Catholic Pre-Occupied: The Origins and Future of Occupy Mattathias Schwartz, Pre-Occupied: The Origins and Future of 9, 9 (Lee Hoinacki & Carl Mitcham eds., 2002). And in the face of political defeat and ideological surren­ ideological defeat and face of political in the And 35 , T Carl Mitcham, The Challenges of This Collection Mitcham, Mitcham, Id. Id. Id. Id. Chase Madar, The People’s Priest See Illich settled in Cuernavaca, Mexico, where, in 1964, he es­ Illich settled in Cuernavaca, Mexico, 34 LLICH Illich’s mature political thought emerged in the midst of the Illich’s mature political thought Ivan Illich was one of those thinkers. Ivan Illich was one of those thinkers. the in Vienna in Born 40 I 35. 41. 42. 36. 37. 38. 39. 40. 34. VAN began to write essays of political and social criticism. began to write essays of political after expressing opposition to the church’s position on contracep­ after expressing opposition to the tion, ran a language school for priests and then served as an administra­ ran a language school for priests tor of the Catholic University. tablished the language school he was to operate until 1976, tablished the language school he 2011/11/28/111128fa_fact_schwartz. http://www.theamericanconservative.com/article/2010/feb/01/00024/. struggle to achieve basic civil rights for African Americans and just struggle to achieve basic civil rights the New Left was getting as the student movement that became mid 1920s to a family of mixed ethnicity and religious back­ mid 1920s to a family of mixed grounds, I 512 tence. \\jciprod01\productn\W\WNE\34-2\WNE209.txt Wall Street served in that role in Washington Heights, Manhattan, then a very served in that role in Washington Puerto Rican, immigrants. poor community of recent, chiefly der, it made sense to wonder if this impulse might draw succor, or might draw if this impulse sense to wonder der, it made and per­ different from, traditions from reform even inspiration, New Deal liberalism. in tension with haps, even ideology the When during the administrations political apex Deal was at its of the New current well before the and Johnson, and Kennedy of Presidents momentum, a had begun to gain conservative counter-revolution alternative to thinkers offered a distinct small group of American liberal social reform. though not Marxist and per­ This alternative, was nevertheless to the left of liberalism, haps not even situated only of corporate rejected the concentration not radical in that it on which of the power of the national government power, but also the New Deal relied. Church subsequently assigned Illich to Puerto Rico, Church subsequently assigned Illich 32073-wne_34-2 Sheet No. 90 Side B 08/21/2012 07:54:18 B 08/21/2012 90 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 91 Side A 08/21/2012 07:54:18 R B­ 48 IT­ 513 AUL A C ARCIS­ OBERT (1975) Karl N 44 : R OMMUNITY (1970) (ex­ ORLD C (1964) (criti­ (1970) (argu­ MERICAN HEM 20-AUG-12 15:22 W ROWING UP HE T A , T , G ULTURE OF , http://www.algebra. EAD MERICA REAT C L A G HE EDUCATION (5th prtg. 1960); P EARTLESS ONSERVATIVE - , T IS H ROJECT C OODMAN HALL OODMAN Seq: 7 Seq: P S 10-11, 91-92 (Harper & Row IFE OF M G G Robert Parris Moses, note 43, at 10-11, 91. E YSTEM (1975) (providing an autobio­ L ASCH 47 ]. S H L AUL AUL REENING OF supra (1994) (providing a biographical de­ EOLITHIC LGEBRA , G AVEN IN A MERICA N ENTLY A HE , H A EATH AND OMPULSORY G HE ONVIVIALITY , T unknown RGANIZED D , C ND ISSISSIPPI ONVIVIALITY C 43 EAR ASCH HRISTOPHER O HE C EICH M L , A , T , D OTES OF A ONVIVIALITY C ESS : N A. R OODMAN URNER H If technological advances promised an end If technological advances promised OOLS FOR ACOBS G IGHTS IN B OOLS FOR J Christopher Lasch, 50 , T R Illich offered a direction for social reform that Illich offered a direction ARL 46 , T HRISTOPHER RIC AUL HARLES OUTH IN THE 49 K ANE P C OOLS FOR C J E IVIL Y LLICH , T C I EFORMATION LLICH R VAN LLICH I EW I (1962) (providing an anarchist perspective on educational theory). (1962) (providing an anarchist perspective , N OSES AND See See generally See generally See generally See generally See generally See See generally Jane Jacobs, ROBLEMS OF LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW M 45 Along with such contemporaries as Paul Goodman, as Paul such contemporaries Along with : P CHOLARS 50. 46. 48. 47. 49. 44. 43. 45. (1979) (exploring narcissism from various social perspectives and lamenting its (1979) (exploring narcissism from various (1961) (portraying and celebrating the diversity and self sufficiency of community (1961) (portraying and celebrating the diversity S OODMAN ARRIS M K Hess, ing for a new, more participatory, form of politics based on a counter-cultural con­ sciousness (Consciousness III) which rejects both traditional conservatism (Consciousness I) and New Deal liberalism (Consciousness II)). rejected the then-reigning oppositions between market ordering oppositions between rejected the then-reigning Republican Party, values, represented by the and traditional social economic and commitment to government-led and the New Deal associated with the Democrats.social progress generally Instead, set of opposi­ claimed to identify a different Illich and his cohort modern industrial argued, showed the failure of tions, which, they to serve the its conservative or liberal iterations, society, in either needs.most basic human the contemporary American political If freedom from material want, it did economy offered the prospect of alienating consumer iden­ so only by holding out a fundamentally tity as its alternative. graphical account of moving away from conservatism toward participatory democracy). graphical account of moving away from conservatism impact on political participation). cizing the impact of corporate culture on youth); P cizing the impact of corporate culture on OF life in various American cities). IES 1973) [hereinafter I org/history.php (last visited May 24, 2012) (outlining an organization committed to org/history.php (last visited May 24, 2012) (outlining an organization committed school reform founded by Robert Moses). P G 2012] 2012] underway in the United States. ac­ work published his Though Illich’s of these sources, from either no direct influence knowledges ideol­ the then hegemonic capitalism and of both industrial critique shaped of the ideas that many New Deal articulated ogy of the 1960s. of the these movements and Charles Reich, \\jciprod01\productn\W\WNE\34-2\WNE209.txt SURD piction of the ideology of Robert Moses); T (discussing how the professionalization of human services has led to a decline in the (discussing how the professionalization of integrity and competency of families); C SISM ploring the dehumanizing impact of technology); P ploring the dehumanizing impact of technology); C Y 32073-wne_34-2 Sheet No. 91 Side A 08/21/2012 07:54:18 A 08/21/2012 91 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 91 Side B 08/21/2012 07:54:18 M K C Y X­ Il­ E , ar­ 34:507 34:507 And 55 HE public 52 : T 59 [Vol. 20-AUG-12 15:22 EMESIS , published in N Illich, in Tools EDICAL (Ruth Nanda Anshen ed., 61 Seq: 8 Seq: : M Though experts might Though 51 OCIETY S EDICINE was to issue a jeremiad calling was to issue a jeremiad M unknown ESCHOOLING IMITS TO , D , L LLICH LLICH I I (Marion Boyars 2002) (1975) (discussing why modern 58 VAN VAN I I 53 EALTH WESTERN WESTERN NEW ENGLAND LAW REVIEW H and public transportation systems, 60 at 91, 96-97. at 91. at IX-XII. at 91. In some cases, his attack anticipated the argument of In some cases, his attack anticipated But Illich’s objection to industrial society was focused less But Illich’s objection to industrial See generally Id. Id. Id. See generally id. Id. Id. See id. See id. See generally Illich’s primary aim in Tools Illich’s primary 56 57 54 Drawing from his studies of the health care industry, Drawing from his studies of the Ivan Illich’s particular elaboration of this critique is developed elaboration of this critique Ivan Illich’s particular 60. 51. 52. 53. 54. 55. 56. 57. 58. 59. gued that the organizational structures created by these and other gued that the organizational structures education, some current radical environmental activists that the abundant liv­ some current radical environmental countries during the 20th cen­ ing standards achieved in first world ground that they are incompatible tury must be jettisoned, on the and thus, of its inhabi­ with the survival of the earth’s atmosphere, tants. on its threat to biological sustainability than on its destruction of on its threat to biological sustainability perhaps, the very possibility of healthy social relationships and, human flourishing. medicine has not had positive effects on health). PROPRIATION OF 1973. most fully in a very short book, Tools for Conviviality most fully in a very 514 distance and spiritual physical growing was a the price to drudgery, work they did. workers and the between \\jciprod01\productn\W\WNE\34-2\WNE209.txt Harper & Row 1971) (criticizing the hierarchical and bureaucratic organization of Harper & Row 1971) (criticizing the hierarchical and bureaucratic organization stu­ schools and arguing for the recognition of the competency and natural curiosity of dents as central educational values). lich’s targets were development (especially large-scale industrial development (especially large-scale lich’s targets were and the exploitation of and agricultural development), technology, nature. if the centralized administrative state ushered in by the New Deal administrative state ushered in if the centralized power, it nev­ to concentrated corporate served as a counterweight that sup­ its own set of hierarchical relationships ertheless imposed and economic participatory forms of political planted more decision-making. point the way towards a more efficient use of economic resources use of economic more efficient way towards a point the reli­ relations, increasing even family, harmonious social, and more and the democracy both popular expertise undermined ance on own problems. people to solve their of ordinary competence for an end to the industrial age and its modes of production. industrial age and its modes of for an end to the 32073-wne_34-2 Sheet No. 91 Side B 08/21/2012 07:54:18 B 08/21/2012 91 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 92 Side A 08/21/2012 07:54:18 R 64 515 20-AUG-12 15:22 and, finally, 67 (Calder & Boyars 1974) ROPOSED P Seq: 9 Seq: S ’ QUITY note 43, at 91. E fostered social mobility at fostered social mobility 69 supra 66 LLICH , I 71 NVERSION He sought to reclaim, or, as he He sought to reclaim, or, as he Above all, Illich insisted that pre­ Above all, Illich I unknown NERGY AND 72 68 AW I N , E L ONVIVIALITY C LLICH OLITICAL P D. I OLE OF R VAN OOLS FOR I HE , T His assault on these structures was as comprehen­ on these structures His assault created material abundance while undermining the abundance while undermining created material T 62 65 LLICH I II. at 91. at 61-73. at 51-54. at 54-61. at 73-79. at 79-82. at 91. at 108. at 108-09. at 91-92. By this, he meant a political process by which people be­ By this, he meant a political process More specifically, they protected formal, hierarchical ed­ formal, they protected More specifically, See See generally Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 70 63 LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW Illich’s identification of the convivial tools that might help Illich’s identification of the convivial Against this dispiriting picture, Illich urged what he called the Against this dispiriting picture, Illich 62. 61. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. M K vailing corporate forms of industrial production degrade social forms of industrial production vailing corporate and eventually imagination and motivation, relations, monopolize aspect of human life. commodify every insisted on perpetual innovation at a pace which precludes the sus­ innovation at a pace which insisted on perpetual tradition. tenance of an organic the expense of personal security and a sense of place; the expense of personal sive as it was fundamental.sive as was that they central claim Illich’s bureau­ to anonymous independent people power from transferred cracies. come enlightened about the necessity to opt for a more “frugal” come enlightened about the necessity movements aimed at reclaiming standard of living, enter into social finally, rediscover and revalue the more convivial ways of life, and, help establish and protect these political and legal tools that can convivial life forms as they emerge. ucational arrangements at the expense of actual learning; at the expense of ucational arrangements possibility of meaning in ordinary life; possibility of meaning (discussing how political control of energy leads to social injustice). (discussing how political control of energy bring about the inversion of industrial society strove for a consis­ bring about the inversion of industrial tency between ends and means. “inversion” of the social arrangements and institutions of industrial “inversion” of the social arrangements society. 2012] 2012] both world are the developed of characteristic institutions economic of the “conviviality” to the natural and inimical counterproductive human spirit. as a “con­ rather than recognizing its preservation exploited nature vivial” value; \\jciprod01\productn\W\WNE\34-2\WNE209.txt C Y 32073-wne_34-2 Sheet No. 92 Side A 08/21/2012 07:54:18 A 08/21/2012 92 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 92 Side B 08/21/2012 07:54:18 M K C Y 34:507 34:507 lan­ 73 [Vol. 80 For Illich, 20-AUG-12 15:22 81 Seq: 10 Seq: For Illich, law’s radical For Illich, law’s 77 The commitment of adju­ The commitment 79 76 unknown This reliance on past value judg­ 82 The formal equality of adjudication under The formal equality 78 Illich argued that the ways in which these insti­ in which these that the ways Illich argued 75 WESTERN WESTERN NEW ENGLAND LAW REVIEW at 92-95. at 95-99. at 99-107. at 91-92. at 91, 99-107. at 99-107. at 101. at 104. at 101-02. at 102. and law. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 74 For Illich, the equality assured by its procedural formality was For Illich, the equality assured by The rule of law, through both the habits of thought it relies on through both the habits of thought The rule of law, 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. guage, ments is its greatest strength. In celebrating it, Illich at first glance conservative critique of seemed to ally himself with the well-known critics as the illegitimate creation “judicial activism,” defined by its augmented by the inherent substantive openness of adjudication. augmented by the inherent substantive paradoxically, by assuming Illich’s argument here began, perhaps between the creation of the validity of the traditional distinction application by judges. legal norms and their subsequent and its central institutional invention—formaland its central institutional adjudication—lay at vision of social change. the heart of Illich’s 516 science, institutions: cultural three key it, to recover, put \\jciprod01\productn\W\WNE\34-2\WNE209.txt dication to offer “disinterested” tribunals, staffed by judges without dication to offer “disinterested” substantive outcomes, re­ pre-conceived commitments to particular neutralizing the capacity of corpo­ inforced this formal equality by individuals and communities rations and governments to dominate vastly greater resources. through the sheer force of their the adversary system meant that every argument, every idea, no meant that every argument, the adversary system had to be evalu­ novel or even subversive, matter how apparently through leg­ on its own merits, rather than filtered ated exclusively the bureaucratic controlled by corporations or islative processes agencies. imperatives of administrative tutions approach and apprehend the world can not only generate can not only the world and apprehend tutions approach so using can do just as importantly, structures, but, new social forms of more convivial examples of the are themselves means that encourage. new structures life these adjudication was essentially a backward looking process, which adjudication was essentially a of law to justify the outcomes draws on already established sources it reaches in particular cases. potential was a function of its blend of procedural formality and function of its blend of procedural potential was a substantive openness. 32073-wne_34-2 Sheet No. 92 Side B 08/21/2012 07:54:18 B 08/21/2012 92 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 93 Side A 08/21/2012 07:54:18 517 86 20-AUG-12 15:22 Thus were the 90 Seq: 11 Seq:

And given the formal com­ Here again, Illich appeared to Here again, Illich 89 And Illich did unquestionably did unquestionably Illich And 85 83 unknown This wholly conventional application of es­ This wholly conventional application 87 84 Every basic question of political and social organ­ Every basic question of political 88 at 102-07. at 104. at 102. at 102-03. at 103. at 103-04. at 104. Id. Id. Id. Id. Id. Id. Id. See id. LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW In Illich’s view, the opportunity provided by adjudication to In Illich’s view, the opportunity Characteristically though, Illich derived radical potential from though, Illich derived radical Characteristically This separation did more than just underwrite the legitimacy of the legitimacy than just underwrite did more This separation 84. 85. 86. 87. 88. 89. 90. 83. M K tablished legal values to contemporary disputes entails the radical tablished legal values to contemporary of the particular legal doc­ (if gradual) malleability of the content given time. trines enforced by judges at any light of past values precluded, by reassess present legal doctrines in any controversy over a matter of definition, the final settlement of public concern. ization could be framed as a question of law and tested through the ization could be framed as a question crucible of adversarial adjudication. his conservative account of the rule of law. his conservative con­ law of stability The as stasis. was, for Illich, not the same ferred by adjudication Indeed the two were antithetical. The continuity of legal norms allows, in adjudication—theeven obligates, the participants parties, the lawyers, the judges—constantly these norms, or what Illich to adapt our legal forebears, to our deepest called the “social experience” of present controversies. adjudication. of the content of the It also assured the continuity by judges. substantive law applied 2012] 2012] judges. minded by reform of law \\jciprod01\productn\W\WNE\34-2\WNE209.txt mitment of the adjudicative process to openness, substantive disin­ mitment of the adjudicative process for all parties, even the most terestedness, and equal respect social arrangements had to be fundamental challenges to current be summarily dismissed because of taken seriously, and could never proponents. the relative powerlessness of their embrace another tenet of conservative legal thought, that the grad­ tenet of conservative legal thought, embrace another inheres in case-by­ development of law that ual, glacially accreting and, most guarantees its stability, predictability, case adjudication it serves. and visibility to the polity important, its accessibility locate the legitimacy of adjudication in its separation of the process separation of the in its legitimacy of adjudication locate the rigorously through the attainable only substance of law, from the dis­ by dispassionate, legal values of pre-existing formal application tribunals. interested C Y 32073-wne_34-2 Sheet No. 93 Side A 08/21/2012 07:54:18 A 08/21/2012 93 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 93 Side B 08/21/2012 07:54:18 M K C Y 94 34:507 34:507 [Vol. Instead, 93 20-AUG-12 15:22 Most ordi­ 97 AW L Seq: 12 Seq: unknown OUBTS ABOUT D The content of the substantive doc­ The content of the substantive S ’ 95 LLICH The channeling of these disputes into the for­ The channeling of these disputes I 98 Beyond the limits imposed by their substantive ori­ Beyond the limits imposed by their III. WESTERN WESTERN NEW ENGLAND LAW REVIEW 96 at 101. at 101-02. at 102. at 104. at 104. at 101-02, 104. at 102, 104. at 99-100. The latter were staffed by judges who were anything but staffed by judges who were anything The latter were Foremost among these was the distance Illich observed be­ these was the distance Illich observed Foremost among Id. Id. Id. Id. Id. Id. Id. Id. 92 91 The ideological hostility of judges was not the only impediment The ideological hostility of judges If Illich was optimistic about the law’s role in generating social about the law’s role in generating If Illich was optimistic 91. 92. 93. 94. 95. 96. 97. 98. trines articulated and defended in the decisions handed down by trines articulated and defended this outlook and would, ac­ these judges would inevitably embody class structures, social hier­ cordingly, most often reinforce existing archies, and ethical norms. adjudication to achieve legal and Illich saw to the strategic use of social change. mal adversarial process of adjudication misused this process in mal adversarial process of adjudication entation, judges were also distracted from serious consideration of entation, judges were also distracted structures or to the distribution of cases raising challenges to social of their position. power by the day-to-day demands the disinterested servants of the openness to argument, equal re­ servants of the openness to argument, the disinterested saw as essential and “due procedure” that Illich spect for all parties, of substantive legal doctrines. to the transformation tween the ideal form of adjudication that grounded his cautious op­ of adjudication that grounded tween the ideal form in the United actual courts he saw operating timism and the States. nary civil litigation, Illich believed, probably rightly, involved rela­ nary civil litigation, Illich believed, of the material proceeds of tively prosaic struggles over distribution the existing system. change, he was not na¨ıve. Even as he hoped for law’s “inversion­ Even as not na¨ıve. change, he was realization of that saw many obstacles to the ary” potential, he hope. In late 20th century America, this meant that nearly all judges were In late 20th century America, this power and the promotion of reflexively oriented towards corporate limitless economic growth. 518 appli­ the conventional in embedded change social for radical tools condi­ (and dismal) to the changed settled legal principles cation of criticism. of Illich’s social were the object tions that \\jciprod01\productn\W\WNE\34-2\WNE209.txt judges were mostly ideologues, shaped by and devoted to the pres­ judges were mostly ideologues, shaped produced and elevated them. ervation of the social structures that 32073-wne_34-2 Sheet No. 93 Side B 08/21/2012 07:54:18 B 08/21/2012 93 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 94 Side A 08/21/2012 07:54:18 105 519 104 20-AUG-12 15:22

102 Seq: 13 Seq: But the inevitability of 103 unknown Especially when the disputants were when the disputants Especially 99 at 101-02. at 102. at 99. at 99-100. at 105-06. Second, the resort to formal adjudication for matters for matters formal adjudication the resort to Second, at 101. Id. Id. Id. Id. Id. Id. Id. And third, the allocation of public resources to the formali­ of public resources to the And third, the allocation 100 LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW For Illich, the conscious actions of three social groups could For Illich, the conscious actions In the face of these formidable barriers standing between the In the face of these formidable 101 99. 100. 101. 102. 103. 104. 105. M K ideological bias in legal doctrine was also the very source of the ideological bias in legal doctrine of that doctrine.dynamism and, hence, the malleability the re­ If what was needed, and possi­ sults of adjudication were ideological, more convivial, ideology. bly achievable, was a different, where it was unnecessary risked pointless escalation of conflict, risked pointless escalation where it was unnecessary other experts in­ dependent on lawyers and made the disputants alienated distance judgment, and interposed an stead of their own resolve their con­ and the process used to between the disputants flict. zation of disputes that could be settled informally starved the that could be settled informally zation of disputes to do what that process of the resources needed formal adjudication and decide cases and alone, can do best: address process, ideally to the power by individuals and communities presenting challenges to control and centralized government institutions of corporations of social goods. the production and distribution gradually usher in that ideology by generating the adoption of the gradually usher in that ideology the social change he sought. legal principles needed to support world Illich saw (in most respects, still, the world we see as well) world Illich saw (in most respects, law might accomplish, it is rea­ and his idealized conception of what even cautiously hopeful about sonable to wonder why he remained the prospects for realizing his conception. Part of the explanation optimism lay in his view of the for Illich’s persistent, if tenuous, and ideology. relationship between adjudication ideological The enforced by judges was not lim­ character of the law declared and buttressed the social structures ited to the particular doctrines that Illich criticized. times The content of the law in effect at any and all was inescapably a function of ideology. 2012] 2012] three important ways. con­ even group and individual most First, to be re­ in order adjudication not require adversarial flicts did and accurately. solved justly \\jciprod01\productn\W\WNE\34-2\WNE209.txt relatively equal in resources, more informal methods of conflict res­ methods of conflict more informal equal in resources, relatively out­ and probably better faster, cheaper, could produce olution comes. C Y 32073-wne_34-2 Sheet No. 94 Side A 08/21/2012 07:54:18 A 08/21/2012 94 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 94 Side B 08/21/2012 07:54:18 M K C Y 34:507 34:507 , http:// [Vol. COM 113 . 20-AUG-12 15:22 BOUT , A They would also be Seq: 14 Seq: 111 114 unknown These few exceptional judges would These few exceptional judges would 110 The exceptional vocations each of these sets each of these vocations The exceptional 107 WESTERN WESTERN NEW ENGLAND LAW REVIEW at 104-07. at 101. Jone Johnson Lewis, Margaret Mead Quotes Illich hoped that their receptivity to these critiques Illich hoped that their receptivity Illich’s hope was that some (no doubt small) number of that some (no doubt small) number Illich’s hope was at 106. at 106-07. Exceptional judges on the other hand, were not, and could on the other hand, were not, Exceptional judges The second and third were what Illich called “exceptional” “exceptional” what Illich called and third were The second Id. Id. Id. Id. Id. See id. See id. Id. See 112 109 108 106 The efforts of committed citizens and “exceptional” profes­ The efforts of committed citizens 106. 107. 108. 109. 110. 111. 112. 113. 114. transcend the corporate ideological commitments which would oth­ transcend the corporate ideological be open to apprehend, appreciate, and sometimes become con­ be open to apprehend, appreciate, to them by exceptional lawyers vinced by the arguments presented citizens. advancing the claims of committed of legal actors could pursue were, however, quite different, reflect­ pursue were, however, quite of legal actors could of adjudication. respective roles in the process ing their different litigation strategi­ lawyer was one who tried to use An exceptional for the case- power relationships by arguing cally to invert existing these relation­ of the doctrines that sustain by-case transformation ships. would prompt these “exceptional” judges to fashion more convivial would prompt these “exceptional” these ordinary disputes. institutions for the resolution of them would, through an abiding devotion to the formal ideals of an abiding devotion to the them would, through adjudication—equal procedure— respect for all parties and for due erwise shape their decisions. not legitimately be, intentional partisans of legal or social be, intentional partisans of not legitimately change. lawyers and judges. lawyers sionals are no doubt thin reeds on which to build a movement for sionals are no doubt thin reeds radical legal change. such Illich’s caution against high hopes for point.change essentially concedes this But, paraphrasing Margaret whether radical change has ever Mead, Illich might ask in response been achieved in any other way. 520 on judicial insisting citizens ordinary was these groups first of The the rights against and collective of their individual enforcement though rights which, especially those of corporations, domination tradi­ in our legal embedded were nevertheless unrecognized, tions. \\jciprod01\productn\W\WNE\34-2\WNE209.txt attuned to critiques of the misuse of adversarial adjudication to pro­ attuned to critiques of the misuse be resolved informally, either cess conflicts that could and should the aid of non-adversarial me­ by the disputants themselves or with diation. womenshistory.about.com/cs/quotes/a/qu_margaretmead.htm (last visited May 24, womenshistory.about.com/cs/quotes/a/qu_margaretmead.htm (last visited May 32073-wne_34-2 Sheet No. 94 Side B 08/21/2012 07:54:18 B 08/21/2012 94 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 95 Side A 08/21/2012 07:54:18 R . EV 521 AN­ M (1997); as an . L. R TAN L.J. 1, 10-14 OBERTO Illich’s cri­ AW 20-AUG-12 15:22 ALE L , 36 S 118 DJUDICATION A , 94 Y (1986); Joseph William (1975); R Seq: 15 Seq: note 43, at 106. OLITICS RACTICE RACTICE OF OVEMENT This skeptical view would This skeptical view P who actually attended the supra RITIQUE OF P M 156 (Lee Hoinacki & Carl Mitcham , 115 117 This optimistic conviction may , A C LLICH TUDIES 116 I unknown S VAN ONVIVIALITY ENNEDY I NOWLEDGE AND EGAL C K L , K MPACT MPACT ON THE I S NGER UNCAN ’ RITICAL D U OOLS FOR C , T HALLENGES OF HE LLICH C I , T HE LLICH I T at 154. ANGABEIRA NGER in IV. Id. See generally See Eugene J. Burkart, From the Economy to Friendship: My Years Studying , M U LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW The Player and the Cards: Nihilism and Legal Theory The Player and the Cards: Nihilism and One of these lawyers is a Waltham, Massachusetts, general One of these lawyers is a Waltham, To be sure, Illich’s brief for the transformative potential of the potential for the transformative Illich’s brief To be sure, 118. 115. 116. 117. OBERTO M K eds., 2002). tique of industrial society rang true to Burkart, and Illich’s hopes tique of industrial society rang (1984); Ed Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement be consistent with the malleability and inevitably ideological char­ the malleability and inevitably be consistent with but would rule doctrine that Illich identified, acter of extant legal conferred by tradi­ deep respect for the wisdom out his argument’s through law re­ the legitimacy he saw in change tion, and thus for form litigation. have Illich’s response to this critique would likely roots of a more convivial way of rested on his conviction that the industrial society are immanent life than the one offered by modern values, of the past, and lie waiting in the values, including the legal by “exceptional,” reform-minded to be unearthed and deployed lawyers and open-minded judges. be unwarranted, but it is one that has been shared by at least some be unwarranted, but it is one that lawyers who have fallen—some some not—under consciously, Il­ lich’s influence. practitioner named Eugene Burkart, Singer, rule of law is idealistic, perhaps touchingly so.perhaps touchingly is idealistic, rule of law depends on an It that he legal norms of our past settled of the content explanation provided.never directly reliance on the that Illich’s It is possible is illusory. law to “invert” present doctrine application of past Our contradic­ may be so open-ended or internally received legal norms to be vacuous.tory in content as by some critical le­ As suggested may really be an a generation ago, adjudication gal studies scholars for justifying its game, offering no grounds empty, purely formal of public trust. results that are worthy 2012) (“Never doubt that a small group of thoughtful, committed citizens can change 2012) (“Never doubt that a small group of the world. Indeed, it is the only thing that ever has.”). 2012] 2012] \\jciprod01\productn\W\WNE\34-2\WNE209.txt R GABEIRA 509, 560-67 (1984). Ivan Illich Illich symposium. Burkart first read Tools for Conviviality in the late 1970s. idealistic but alienated law student C Y 32073-wne_34-2 Sheet No. 95 Side A 08/21/2012 07:54:18 A 08/21/2012 95 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 95 Side B 08/21/2012 07:54:18 M K C Y 34:507 34:507 [Vol. 20-AUG-12 15:22 offered Burkart a offered Burkart Seq: 16 Seq:

Burkart also drew on Illich’s Burkart also drew 120 121 unknown In an essay recalling Illich’s influ­ recalling Illich’s In an essay 123 119 Burkart’s hopes were gradually chastened. Burkart’s hopes were gradually He de­ WESTERN WESTERN NEW ENGLAND LAW REVIEW at 156. 122 at 156-57. See id. Id. Id. Id. Id. Eventually, Burkart began to fear that Illich’s critique of the Eventually, Burkart began to fear At the same time, Tools for Conviviality At the same time, see people as being in need of their services. . . .see people as being in need of their All of this is since service systems take good for business[,] . . . [but] insidious away from people what they could do on their own, . . . los[ing] . . . self-reliance and independence[.] . . . After a while, I saw the Over the course of the next five years or so I was immersed in Over the course of the next five years learning the ropes of a legal practice. did, we law of kind The with the way law affects the general practice, put me in touch through wills, divorce, crimi­ lives of the great majority of people: accidents, buying and selling nal defense, disability claims, auto homes, tenant and consumer cases.While I received a lot of sat­ for individual clients, isfaction from seeing a good result achieved I began to be troubled by something: A good result might bene­ I did not see it having any fit someone in the short term, but larger effect.practice of law did not work I saw that the ordinary but rather kept things as they so much to make society more just were, and running smoothly. 119. 120. 121. 122. 123. ence on him, Burkart reports that his first step after reading first step after reports that his him, Burkart ence on use­ for a more practically law “schooling” was to abandon “Tools” education.ful legal it gave me the also helpful; “The book was school, so last year of law my classes the to skip most of courage aid office, learning as much as possible in a legal that I could work attorney.” the skills of a practicing scribed his early life as a lawyer this way: scribed his early life as a lawyer path to use his chosen work to address the injustices he saw in the work to address the injustices path to use his chosen order.established political the practice of law in Thus, he “began for [radical] so­ could use law as an instrument the hopes that [he] cial change.” expertise might apply to potentially baleful effects of professional his own work. “[S]ervice providers,” he observed, 522 poten­ as a of law the practice to see him inspired inversion for its calling. tially transformative \\jciprod01\productn\W\WNE\34-2\WNE209.txt celebration of immersion in a local, organic way of life over the in a local, organic way celebration of immersion a commitment to personal advancement.impersonality of Burkart where I worked; I and be a part of the community “wanted to know in a place.” wanted to be rooted 32073-wne_34-2 Sheet No. 95 Side B 08/21/2012 07:54:18 B 08/21/2012 95 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 96 Side A 08/21/2012 07:54:18 R 523 I.4, supra , The ICHARD R 130 and Black ISTORY H LUGER 20-AUG-12 15:22 K see also see

ERVICES S Law was still a con­ Seq: 17 Seq: EGAL 126 , L Brown v. Board of Education OUSEMAN unknown W. H LAN ISTORY OF 127 H to prompt the Supreme Court to declare to prompt the Supreme Court & A HE 129 By then (the 1980s), Burkart reports, Illich By then (the 1980s), : T 125 OOLEY USTICE J A. D These early Legal Services programs were inspired in These early Legal Services programs Pearson v. Murray, 182 A. 590, 594 (Md. 1936); at 157-58. at 157. at 160. at 156-57. 124 OHN 128 IMPLE See Id. Id. Id. Id. J Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 495 (1954); , S LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW If Eugene Burkart came to doubt the capacity of law and law­ came to doubt the capacity of If Eugene Burkart Some years later, during Illich’s intermittent academic sojourns academic sojourns Illich’s intermittent later, during Some years joke. an­ I would going?” work me, “How’s asked When people swer, “Never been better. so there is are falling apart, Families . . arrests are up . delinquency; divorce and juvenile plenty of is . . . [b]usiness at work are high and injuries auto accidents good.” 129. 124. 125. 126. 127. 128. 130. LUGER M K vivial tool, but one which could only help lawyers, clients, and com­ which could only help lawyers, vivial tool, but one the alienation of with, rather than transform, munities settle society. modern industrial strategy of the litigation campaign against segregation was an appli­ strategy of the litigation campaign I.15, I.22 (1984). note 129, at 702-08. part by the exemplary success of Charles Houston, Thurgood Mar­ part by the exemplary success of NAACP Legal Defense and Ed­ shall, and their colleagues with the understanding of the Equal ucation Fund in urging a revised Protection Guarantee yers to alter, or as Illich would put it, invert, existing social struc­ as Illich would put it, invert, existing yers to alter, or of lawyers, roughly Burkart’s tures, there was another group professional identities on the contemporaries, who based their reform litigation. transformative potential of law lawyers These services programs and the re­ were the staff attorneys of the legal established by the White House gional and national support centers (OEO) between about 1964 and Office of Economic Opportunity and legal services for the poor 1974, when OEO was dismantled of the Legal Services Cor­ professionalized by Congress’s creation poration. in the United States, Burkart and Illich became acquaintances, and Burkart and Illich became in the United States, eventually friends. officially sanctioned racial segregation unconstitutional. officially sanctioned racial segregation K 2012] 2012] \\jciprod01\productn\W\WNE\34-2\WNE209.txt America’s Struggle for Equality 192-94 (Vintage Books 1977) (1975) (describing the America’s Struggle for Equality 192-94 (Vintage Books 1977) (1975) (describing litigation campaign to abolish de jure segregation). himself had concluded that legal work would not likely lead to fun­ that legal work would not himself had concluded damental social change. Burkart and Illich, law only For both ].” thicket[ ] through the[ served as a “guide C Y 32073-wne_34-2 Sheet No. 96 Side A 08/21/2012 07:54:18 A 08/21/2012 96 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 96 Side B 08/21/2012 07:54:18 R R R R R R M K C Y U­ U­ 137 S S note 34:507 34:507 see also supra see also [Vol. , , of Illich’s , of Illich’s housing, Their goals 20-AUG-12 15:22 136 ROGRAM AND LUGER 133 P K ERVICES Seq: 18 Seq: S note 129, at 191-94. It was hard to imagine a It was hard to EGAL note 128, at I.15, I.22. supra 132 L , , 182 A. at 594; see Through the gradual accretion Through the gradual note 128, at I.13-15. (1984); HE supra , : T unknown 131 LUGER Representing client groups such as Representing client groups such supra K , For a time, they achieved some nota­ For a time, they achieved some OURT 134 C 22, 30 (1990). 135 OUSEMAN 68, 80, 110-18 (1993). OUSEMAN note 133, at 22, 30. EED law. But the accomplishments of this drive AKING & H OOR IN note 133, at 12 & n.30. N M 138 P United Farm Workers Org. Comm. v. Monterey Cnty., 94 Cal. & H supra HE , , 347 U.S. at 495; Pearson supra OOLEY , RUTAL , 182 A. at 590; see WESTERN WESTERN NEW ENGLAND LAW REVIEW , T ; D ECISION OOLEY , B D D Thorpe v. Hous. Auth. of City of Durham, 386 U.S. 670, 673-74 (1967); Goldberg v. Kelly, 397 U.S. 254, 270-71 (1970); Shapiro v. Thompson, AWRENCE AVIS Pearson See id. See See generally L See See Brown See AWRENCE D AWRENCE OURT L C The Legal Services programs and support center lawyers strove programs and support center The Legal Services 131. 135. 137. 136. 134. 133. 132. 138. E. L ARTHA PREME M were ambitious. They saw their task as blending the enforcement norms and the reform of estab­ of previously unrecognized legal the conditions under which poor lished legal doctrine to change people were obliged to live. SAN farm workers, welfare recipients, tenants, students, and the elderly farm workers, welfare recipients, they could prompt judges to poor, legal services lawyers believed landlord-tenant relations, public transform the legal rules governing conditions, and public schools for assistance programs, workplace the benefit of their clients. ble successes, especially in the areas of employment, ble successes, especially in the areas and public benefits 524 for Conviviality out in Tools set it before he long cation, conserva­ of the inherent potential for the transformative argument adjudication.tism of case-by-case source Drawing on a venerable Clause of the Fourteenth Protection law, the Equal of settled a proper argued that Marshall famously Houston and Amendment, the very invalidated legal norm actually of that settled application legal and social practices that conventional political and social it to support. thought had taken \\jciprod01\productn\W\WNE\34-2\WNE209.txt towards social reform through law reform litigation began to dwin­ towards social reform through law Rptr. 263 (Cal. 1971). see also 129, at 186-94. more striking example of successfully applying established legal val­ of successfully applying established more striking example legal doctrine. ues to invert present many areas of law and Marshall’s strategy in the to repeat Houston lives of their impoverished clients. which affected the of precedents achieved through carefully constructed lawsuits, they through carefully constructed of precedents achieved to re-evaluation, social institution first subjected an entrenched at least) dissolution. then to (formal, 394 U.S. 618, 641-42 (1969); King v. Smith, 392 U.S. 309, 333-34 (1968); 32073-wne_34-2 Sheet No. 96 Side B 08/21/2012 07:54:18 B 08/21/2012 96 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 97 Side A 08/21/2012 07:54:18 E­ 525

& D ROGRAM P 20-AUG-12 15:22 . 1, 25 (1990) (re­ DVOCATES ERVICES EV A S would show how http://www.bsos.umd. , http://www.centerfor R

145 , EGAL OOK

ESBIAN L Seq: 19 Seq: . B HE OL & L : T AY Litigation as a Tool for Private Pen­ & P EPRESENTATION and gay, lesbian, and trans- and gay, lesbian, OURT AW . R C 143 (1990)), available at unknown UB P And the strategy of deploying tradi­ strategy of deploying And the Still, the impetus to law reform con­ impetus to law Still, the . 593 (1973). OOR IN AKING OR 141 EV 140 P (Feb. 26, 2007), http://www.aclu.org/womens-rights/ F M 144 R HE ORG and the effort itself had ebbed considerably considerably had ebbed itself the effort and , T ENTER 139 ECISION C Califano v. Westcott, 443 U.S. 76 (1979); Weinberger v. Califano v. Westcott, 443 U.S. 76 (1979); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. D , ACLU. disability rights, AWRENCE 142 OURT LEARINGHOUSE C E L , 6 C National Senior Citizens Law Center, Harry P. Stump, Book Review, 1 L See generally Id. Id. See generally See generally USAN , http://www.glad.org/ (last visited May 24, 2012). LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW UPREME The law reform litigation effort shared (and still shares) Ivan litigation effort shared (and still The law reform S 145. 139. 144. 140. 141. 142. 143. M K FAQs: The ACLU Women’s Rights Project and Wo­ Weisenfeld, 420 U.S. 636 (1975); FAQs: The ACLU Women’s Rights Project men’s History Month viewing S AND FENDERS sion Reform long established values embedded in the common law, especially long established values embedded of trusts and contracts, could be principles drawn from the law then prevalent legal doctrine in deployed in new ways to revise and greater justice, for the re­ ways that would assure more rights, Illich’s idealism about the possibility of fundamental social change about the possibility of fundamental Illich’s idealism bringing about this change.and law’s role in In the early legal ser­ A personal na¨ıve. idealism could be remarkably vices period, this As new law­ not atypical example of this naivete.´ anecdote offers a on the rights of services support center focused yers with a legal with designing a colleague and I were charged elderly poor clients, the rights of the legal doctrines which governed a strategy to reform plans. workers governed by private pension the during was This of the Employee Retirement In­ early 1970s, before the enactment a measure of federal statutory come Security Act, which provides regulation of these plans. to be sure. We saw our task as daunting, was completely clear. But in our eyes, the path to success We for the Clearinghouse Review, would first write a law review article lawyers. a specialized journal for legal services called article, The Reform Litigation as a Tool for Private Pension by the close of that decade. by the close 2012] 2012] 1970s, the mid dle by \\jciprod01\productn\W\WNE\34-2\WNE209.txt gender rights movements. 2003); Baker v. State, 744 A.2d 864 (Vt. 1999); G publicrep.org/ (last visited May 24, 2012). edu/gvpt/lpbr/subpages/reviews/lawrence.htm. edu/gvpt/lpbr/subpages/reviews/lawrence.htm. faqs-aclu-womens-rights-project-and-womens-history-month. tional legal values to transform extant legal doctrine has been taken doctrine has extant legal values to transform tional legal notably in lawyers, most cause-oriented contemporary up by more the women’s, tinues to inform, at least in part, the identity and aspirations of and aspirations in part, the identity inform, at least tinues to services lawyers. many legal C Y 32073-wne_34-2 Sheet No. 97 Side A 08/21/2012 07:54:18 A 08/21/2012 97 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 97 Side B 08/21/2012 07:54:18 R R R M K C Y and 34:507 34:507 . I had 149 The ex­ [Vol. 147 20-AUG-12 15:22 note 144.

then gender,

supra Seq: 20 Seq: 148 note 43, at 106. , ELEVANCE R supra Moreover, all of these suc­ , 150 EFENDERS unknown & D NDURING ONVIVIALITY E C S ’ A month later, I read Illich’s account of A month later, DVOCATES note 142. 146 A LLICH I OOLS FOR supra , , T ESBIAN V. WESTERN WESTERN NEW ENGLAND LAW REVIEW ORG LLICH & L I Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 495 (1954). AY See Ponce v. Constr. Laborers Pension Trust for S. Cal., 628 F.2d 537 (9th Cir. See ACLU. G Ivan Illich lived long enough to see the waning of the influence Ivan Illich lived long enough to see self-conscious law­ Significantly, Illich’s image of ideologically About six months after my colleague and I finished our article, after my colleague and I finished About six months 147. 146. 148. 149. 150. tent to which the efforts of these lawyers have generated (or can tent to which the efforts of these in social structures Illich sought generate) the fundamental change dispute. is, of course, a matter of considerable suc­ greatest The been the eradication of formal cesses of law reform litigation have on race, legal inequalities, first those based cesses have been achieved largely through a straightforward appli­ cesses have been achieved largely reform through adjudication. cation of Illich’s mode of law women’s, and LGBT move­ Lawyers representing the civil rights, ments have each proceeded by urging the case-by-case application law’s role in achieving social change in Tools for Conviviality law’s role in achieving work, even if he was describing and endorsing our no doubt that he for success more cautious about its prospects seemed considerably than we were. now sexual identity and orientation. of his ideas and the apparent (though, of course, perhaps tempo­ of his ideas and the apparent (though, the sorts of basic change he hoped rary) demise of the prospects for for. of Nonetheless, his ideas about the law and the relationship a lens that can illuminate some litigation and social change provide civil adjudication in the United developments in the culture of States since his death. pursuing social change through yers, whether “exceptional” or not, shape the identity of “cause ori­ law reform litigation continues to it did forty years ago. ented” lawyers today as much as 526 in represent then would lawyers legal services other we and tirees litigation.the roots of con­ would find no doubt that we We had law. principles of justice in ancient temporary simply a mat­ It was and could be applied, showing how they them out, ter of digging apply them. lawsuits to then filing Marshall had Houston and struggle. way in the desegregation shown the could we believed We of law reform. tools in our very different arena use their convivial case. we filed our first \\jciprod01\productn\W\WNE\34-2\WNE209.txt 1980). 32073-wne_34-2 Sheet No. 97 Side B 08/21/2012 07:54:18 B 08/21/2012 97 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 98 Side A 08/21/2012 07:54:18 , O­ 527 S the OLICY P 152 BOUT 153 A . U.P.R. 209 OCIAL 20-AUG-12 15:22 UR

S RING . J B EV OURTS , 54 R and Owen Fiss, C Seq: 21 Seq: OURTS AND 151 AN C : C HE . 211, 225-28, 230-34 (1995). OPE , T ESOL H . R unknown The Role of the Judge in Public Law Litigation ISP OROWITZ OLLOW D H H ON If anything, this de-emphasis on formal If anything, this de-emphasis on HE . J. , T T 154 ONALD S D Owen M. Fiss, The New Procedure HIO Abram Chayes, OSENBERG . 1281 (1976). , 10 O R EV ? (1991). See generally Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution See generally See generally ERALD . L. R LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW HANGE On the other hand, Illich’s early identification of the distorted Illich’s early identification of On the other hand, In contrast to formal inequalities, more complex structural bar­ structural more complex to formal inequalities, In contrast ARV C 152. 154. 151. 153. M K CIAL adjudication may have gone too far, perhaps depriving relatively adjudication may have gone too real opportunity to press serious powerless litigants of their only use of litigation to effect fundamental institutional reform has been to effect fundamental institutional use of litigation and, perhaps, temporarily successful.only sporadically Commenta­ have argued, Horowitz and Gerald Rosenberg tors such as Donald to and per­ that adversarial litigation is ill-suited contrary to Illich, reform. contributing significantly to such haps incapable of and Adjudication application of adversarial adjudication to conflicts which might be adjudication to conflicts application of adversarial American dispute anticipated changes in better resolved informally for granted today. resolution processes that are taken of rise The (ADR) movement and the em­ the Alternative Dispute Resolution by judges, lawyers, institutional brace of alternatives to litigation changed the legal landscape in actors, and ordinary citizens has least to a degree.ways Illich might well endorse, at effec­ ADR has considered prosaic struggles over tively moved many of what Illich pie into more informal set­ the distribution of the existing economic to the disputants, less costly, tings that are seen as more accessible expertise than formal adjudica­ and less dependent on professional tion. their Many businesses have, with court approval, required disputes, even those concerning customers and employees to submit to resolution by arbitration rather rights protected by federal law, than litigation. Even federal courts have reoriented themselves, cultural practices, toward heavy re­ through both rules and changed that nearly all civil cases will be liance on ADR and an expectation resolved without trial. (1977); G 2012] 2012] the prohibi­ (here tradition in our legal long embedded of principles status) to basis of ascribed on the unjust discrimination tion against of appar­ repudiation, and eventually first reconsideration, prompt legal doctrine. contemporary ently settled resistant to far more change have proven and political riers to social strategies.law reform litigation convincingly Although championed as Abram Chayes by such scholar/litigators \\jciprod01\productn\W\WNE\34-2\WNE209.txt 89 H (1985). C Y 32073-wne_34-2 Sheet No. 98 Side A 08/21/2012 07:54:18 A 08/21/2012 98 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 98 Side B 08/21/2012 07:54:18 R R M K C Y 34:507 34:507 ONSTI­ : A C [Vol. 20-AUG-12 15:22 L.J. 1073 (1984); ROCESS P ALE , 93 Y Seq: 22 Seq: are in any event based are in any 158 Still, for Illich, pursuit of 156 PPOINTMENT

note 43, at 102. A 157 supra , EDERAL unknown The one significant exception to The one significant exception F 159 HE , 58-60 (Duke University Press 2003). , T ONVIVIALITY C NALYSIS A ERHARDT and again, Owen Fiss, and again, Owen M. Fiss, Against Settlement 155 OOLS FOR J. G WESTERN WESTERN NEW ENGLAND LAW REVIEW , T ISTORICAL at 106. ICHAEL LLICH I Id. M See generally id. See generally note 152, at 210. & H Illich’s faith in the enduring character of these virtues may, Illich’s faith in the enduring character But a more significant threat in our time to Illich’s hopes for threat in our time to Illich’s But a more significant supra 157. 158. 159. 155. 156. Fiss, the ideal virtues of adjudication nevertheless abided as a regulative the ideal virtues of adjudication “exceptional” judges, and as a ideal, adhered to faithfully by the the rest. matter of occasional necessity by this strategy, President George H.W. Bush’s nomination of Justice this strategy, President George H.W. redoubled commitment to it, as David Souter, prompted his son’s however, have been too optimistic. it is a truism, or For example, Supreme Court have for at least nearly so, that appointments to the by the perceived ideolog­ a generation been significantly influenced to serve.ical commitments of those nominated this And though its effects on the appoint­ influence is unquestionably bipartisan, in Republican as compared ment process have been very different to Democratic administrations. Starting with President Reagan’s of Robert Bork, Republican ultimately unsuccessful nomination to offer nominees they believed presidents have appeared usually because of their extreme to be extremely conservative precisely senators to oppose these nomi­ conservatism, daring Democratic nees on ideological grounds. 528 them a giving of capable decision-maker to a single of right claims his or her by Illich for judge praised the disinterested fair hearing; and for all parties, equal respect to due procedure, commitment argument. to every substantive openness trench­ yet measured The by such commentators movement offered of the ADR ant critiques Resnik, as Judith \\jciprod01\productn\W\WNE\34-2\WNE209.txt substantially on the same values Illich saw in the rigorous formalism the same values Illich saw in the substantially on of the judicial decision. lie in the dimin­ potential of the rule of law may the transformative the ideal of disinterested adjudication.ished stature of Illich took neutrality, equal the aspirations to procedural for granted that arguments litigants, and openness to all substantive treatment of all the institution of formal adjudication.were inherent in As a practi­ that these aspira­ he could not help but observe cal matter, though, corrupted, by compromised, sometimes even tions were inevitably the ideological commitments of judges. TUTIONAL 32073-wne_34-2 Sheet No. 98 Side B 08/21/2012 07:54:18 B 08/21/2012 98 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 99 Side A 08/21/2012 07:54:18 R 529

thereby 161 20-AUG-12 15:22 , 531 U.S. at 154. And the plu­ 163 Bush rested on a much 164 , in which the Court Seq: 23 Seq:

unknown , 531 U.S. at 153-54. , Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, The division seems ideological, to be The division seems 160 see, e.g. and the Electoral Count Act. 162 . amend. XII; Bush ONST , 531 U.S. at 110. notes 161, 167; Electoral Count Act of 1887, 3 U.S.C. §§ (2006); 1-21 Bush Bush v. Gore, 531 U.S. 98, 110 (2000). U.S. C Infra LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW This characterization of the diminished status of judicial disin­ This characterization of the diminished The result has been a Supreme Court which, especially since a Supreme Court which, especially The result has been 163. 164. 161. 162. 160. M K securing the 2000 presidential election for George W. Bush. securing the 2000 presidential election The a closely contested presidential Court’s decision to intervene in especially in light of the election was widely criticized as imprudent, of the dispute prescribed by the procedures for political resolution 12th Amendment rality opinion invalidating the Florida recount rality opinion invalidating the Florida sure, but oddly so. to be the five justices The ideologues appeared the Court’s presidents who constitute appointed by Republican closely decided cases. usual majority in com­ now dissenters, The two Democratic justices appointed by the last prised of the four reputations largely retained their pre-appointment presidents, have for moderation. the It is as if a pitched battle is underway over one side has taken up arms. content of American law, but only Court may be tendentious, terestedness on the current Supreme based as it is on appearances. Appearances can deceive, of course, hardly ideologically neutral.and in any event are themselves Nev­ occasions, the Court’s five justice ertheless, on at least two notable decisions that overtly disavow Il­ Republican majority has issued of parties, due procedure, lich’s prized virtues of equal treatment and openness to all substantive arguments. no­ more and first The torious of these decisions was Bush v. Gore called a halt to the recount of popular votes in Florida, called a halt to the recount of popular 2012] 2012] Chief and Alito Samuel of Justice the appointment by evidenced Roberts.John Justice hand, on the other presidents, Democratic from Re­ opposition ideological (or fearing) threatened faced with ideo­ of obvious the appointment senators, have eschewed publican seemed who either instead nominees liberals, offering logical evinced records that lower court judicial centrist, had politically moderation, or both. divided, yielding retirement in 2005, is deeply Justice O’Connor’s divided along after another, with the justices up one 5-4 decision lines. predictably partisan \\jciprod01\productn\W\WNE\34-2\WNE209.txt 2547, 2561 (2011); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1744, 1756 2547, 2561 (2011); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1744, 1756 (2011); Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010); D.C. v. Heller, 701 554 U.S. 570 (2008); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., 551 U.S. (2007). C Y 32073-wne_34-2 Sheet No. 99 Side A 08/21/2012 07:54:18 A 08/21/2012 99 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 99 Side B 08/21/2012 07:54:18 M K C Y In 34:507 34:507 170 [Vol. than any than 20-AUG-12 15:22 165 Before Iqbal, were a class of 167 , decided in 2009, the Seq: 24 Seq:

plaintiffs needed to prove They argued that Ashcroft 169 unknown is, in short, is by its own terms an is, in short, is by limited this presumption to only those limited this presumption to only The plaintiffs in Iqbal 168 . In Ashcroft v. Iqbal Bush v. Gore WESTERN WESTERN NEW ENGLAND LAW REVIEW at 103-11. at 109. at 1943. at 1944. See id. Id. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). Id. Id. Id. It is difficult to imagine a more direct or complete to imagine a more direct or It is difficult 166 The second, more recent abnegation of the rule of law by a five recent abnegation of the rule of The second, more 165. 166. 167. 168. 169. 170. all factual allegations asserted in civil complaints had long been en­ all factual allegations asserted in of truth for purposes of a defen­ titled to a temporary presumption dant’s challenge to their legal sufficiency. Roberts’s Justice Chief opinion for the court in Iqbal factual allegations deemed “plausible” by the federal district judge factual allegations deemed “plausible” considering the challenge. of its subscribers had previously suggested was applicable to state was applicable suggested had previously of its subscribers voting procedures.Gore Bush v. portion of the But the infamous was the of adjudication, Illich’s model form for purposes of holding, offered to the rationale its ruling and admonition that plurality’s circumstances.” only “to the present were applicable justify it Its in future cases regard the ruling as precedent authors would not of equal pro­ be analogous, “for the problem that might otherwise many complexi­ processes generally presents tection in election ties.” immigrants from majority Arab and/or Muslim nations of origin immigrants from majority Arab detained indefinitely by American who were taken into custody and Attorney General Ashcroft’s ef­ immigration authorities as part of acts in the immediate aftermath of fort to prevent further terrorist the attacks of September 11, 2001. repudiation of the value of precedent, the obligation to treat simi­ value of precedent, the obligation repudiation of the predictability of equally, and the stability and larly situated litigants through case by inheres in its gradual accretion substantive law that case adjudication. openly lawless decision. openly lawless decision. majority is only slightly less bla­ justice Republican Supreme Court tant than Bush v. Gore 530 guarantee Protection of the Equal reading robust more \\jciprod01\productn\W\WNE\34-2\WNE209.txt (and thus to allege in their complaint) that the Attorney General’s (and thus to allege in their complaint) policy was not only discriminatory in effect (not contested by the order for this claim to succeed, the Iqbal order for this claim to succeed, the had unconstitutionally singled them out for arrest and investigative had unconstitutionally singled them and/or national origin. detention on the basis of their religion Court changed the rules for the pleading of complaints filed by Court changed the rules for the district courts. plaintiffs in civil cases in the federal 32073-wne_34-2 Sheet No. 99 Side B 08/21/2012 07:54:18 B 08/21/2012 99 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 100 Side A 08/21/2012 07:54:18 531 20-AUG-12 15:22 whether a policy whether a policy Seq: 25 Seq:

Of course, the plaintiffs the plaintiffs Of course, For the Chief Justice, At­ For the Chief Justice, 171 173 But under the new standards the new standards But under 172 unknown That motivation conclusively ruled That motivation 174 How this directive to rely on judicial common sense How this directive to rely on judicial at 1953. How were judges to do this in a manner consistent How were judges to do this in claims themselves, perhaps this is because no explana­ claims themselves, perhaps this 176 at 1952. at 1951. at 1950-51. at 1950. 175 Id. Id. Id. See id. Id. Id. LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW defendants) but also that it was prompted, in part at least, by least, by part at in was prompted, that it but also defendants) Chief Justice Roberts recognized that this new pleading stan­ recognized that this new Chief Justice Roberts The possibility of an epistemic distinction between law and The possibility of an epistemic 171. 172. 173. 174. 175. 176. M K torney General Ashcroft was motivated exclusively by his commit­ Ashcroft was motivated exclusively torney General United States in additional terrorist attacks on the ment to forestall 11. the wake of September announced by Chief Justice Roberts, their assertion that the treat­ assertion that Roberts, their by Chief Justice announced dis­ way by an improper influenced in any suffered was ment they claim was and their deemed implausible purpose was criminatory to be dismissed. accordingly directed out the “plausibility” of any contamination of his policy by discrimi­ of any contamination of his out the “plausibility” natory animus. of dis­ to make dispositive determinations dard required judges factual questions (in Iqbal puted and controversial minority disparate effect on an unpopular with an overwhelmingly purpose) at the onset could have been infected by a discriminatory or formal consideration of of litigation and without any discovery evidence. as the basis for refusing to examine the merit of claims presented by as the basis for refusing to examine invitation to indulge the ideo­ an injured party differs from an open by Illich remains unexplained.logical predilections so deplored In of the “plausibility” standard light of the Chief Justice’s application to the Iqbal tion is possible. law, or as Illich would put it, politics, between applying and creating has been under attack by legal between ideology and disinterest, century. philosophers for more than a Justice with Beginning legal realists and on to their theo­ Holmes, extending through the studies movement, many thinkers retical heirs in the critical legal in­ have found this distinction impossible to sustain because of the with their formal obligations to openness, equal respect for liti­ with their formal obligations to gants, and due procedure? Roberts, the answer was to apply For sense[,]” formed by judicial their “judicial experience and common experience. a prohibited discriminatory purpose. discriminatory a prohibited 2012] 2012] Iqbal \\jciprod01\productn\W\WNE\34-2\WNE209.txt made these necessary allegations. made these C Y 32073-wne_34-2 Sheet No. 100 Side A 08/21/2012 07:54:18 A 08/21/2012 100 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 100 Side B 08/21/2012 07:54:18 R M K C Y 181 ıve. 34:507 34:507 ERIOUSLY S [Vol. (The Belknap 20-AUG-12 15:22 IGHTS R EDGEHOGS AKING H Seq: 26 Seq: , T 40-43 (2008). HINK WORKIN T USTICE FOR . 78, at 469 (Alexander Hamilton) (Clin­ D O , J N unknown The Realists were nearly all politi­ UDGES J ONALD 183 And distinguishing judgment from its judgment And distinguishing WORKIN OW D 178 , H EDERALIST F 179 HE ONALD OSNER note 177, at 157. R Such a judge may experience the disinterested­ Such a judge may experience the Phelps Dodge Corp. v. N.L.R.B., 61 S.Ct. 845 (1941); Adair v. A. P supra 182 The exercise of what Alexander Hamilton called Alexander Hamilton of what The exercise WESTERN WESTERN NEW ENGLAND LAW REVIEW , at 157; T 177 Coppage v. Kansas, 35 S.Ct. 240, 248 (1915) (Holmes, J., dissenting), at 40-43. at 41 (citations omitted). ICHARD OSNER These judges may, of course, be philosophically na¨ of course, be philosophically These judges may, P Id. Id. See generally See R See id. 180 The philosophical critique of legal justification has until re­ The philosophical critique of legal The problem has so far been largely a theoretical one, in the so far been largely a theoretical The problem has 179. 180. 181. 182. 183. 177. 178. Press of Harvard University 2011); R ton Rossiter ed., 1961) (“The courts must declare the sense of the law; and if they ton Rossiter ed., 1961) (“The courts must of JUDGMENT, the consequence would should be disposed to exercise WILL instead equally be the substitution of their pleasure to that of the legislative body.”). philosophical opposite, will (or to put it slightly more gently, judi­ slightly more gently, (or to put it opposite, will philosophical the legiti­ problem to to pose a serious continues cial discretion) macy of adjudication. ness so prized by Illich, even if he or she is also only too aware of ness so prized by Illich, even if judgments. the inevitable fallibility of all (legal) progressive or liberal than with cently been associated more with conservative thought. Holmes, for all his hard bitten skepti­ Justice saw efforts to achieve it as cism about political and social reform, inherent in self-government. “judgment” is inevitable. “judgment” Perhaps more likely, they may be convinced that their practice rests they may be convinced that Perhaps more likely, in order to pre­ one which must be concealed on a fiction, albeit laws not men.” in the ideal of a “government of serve public faith literal sense of that adjective, as most judges publicly practice their adjective, as most judges publicly literal sense of that that relentlessly of it, publishing opinions craft as though unaware law to the case at the application of pre-existing purport to rest on hand. overruled in part by (Harvard University Press 1977). There is, however, a third possibility, one more congenial to Illich’s a third possibility, one more congenial There is, however, optimism about adjudication. law/ Perhaps it is the critique of the resting as it does on the all too easy politics distinction that is na¨ıve, provably correct answers to con­ demonstration that there are not tested legal questions. Perhaps the exercise of judgment to resolve least from the internal perspective these questions is not illusory, at as deciding particular of a judge who sees his or her responsibility and interpretation of pre-existing cases through the application sources of law. 532 of competing resolutions correct provably to derive of judges ability le­ of pre-existing a mechanical application through legal arguments gal sources. \\jciprod01\productn\W\WNE\34-2\WNE209.txt 32073-wne_34-2 Sheet No. 100 Side B 08/21/2012 07:54:18 B 08/21/2012 100 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 101 Side A 08/21/2012 07:54:18 R R R R R , 190 533 AW , 41 L The Their RITICAL 185 C 187 HE 20-AUG-12 15:22 note 189. , 109-19 (1996); , T

Critical Legal Legal Critical overruled in part by NGER OURTS AND THE 184 U C Ferguson v. Skrupa, 83 S. OMORRAH 450 (Kermit L. Hall et al. G Segall, supra Seq: 27 Seq: AW EDERAL L : F OWARD See generally T (Sep. 29, 2011), http://www.nybooks.com/ MERICAN unknown A note 177. OOKS Adherents to techniques of interpre­ to techniques Adherents B LOUCHING Posner’s book claims both that argu­ Posner’s book claims both that 186 NTERPRETATION Eric J. Segall, The Court: A Talk with Judge Richard , S supra I , 188 Thomas C. Grey, Holmes and Legal Pragmatism ORK note 177, at 39-45; see also , supra note 115. EVIEW OF OMPANION TO note 183, at 813-14. note 183, at 794. OSNER C R P supra ATTER OF H. B , Posner admits that judges (including him) nearly Posner admits that judges (including ORK OVEMENT Y 189 See generally XFORD , A M at 39-45; see also OBERT OSNER M O R EW P Grey, supra Grey, supra . 787 (1989). N HE CALIA EV See T See See See generally See See id. HE S TUDIES LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW S , T There are now signs, however, that the critique of the law/ signs, however, that the critique There are now . L. R 185. 184. 190. 187. 188. 186. 189. NTONIN EGAL TAN M K A eds. 2002). claims have mostly been convincing only to audiences who approve been convincing only to audiences claims have mostly these preferred by judges who claim to follow of the results reached whatever because textualism and originalism, techniques, perhaps application to gen­ no more capable of mechanical their virtues, are than are any resolutions to legal questions erate provably correct less objective methods of decision. other, ostensibly may be becoming more bipartisan. politics distinction Pos­ Richard appellate judge, prolific author, ner, a deservedly respected federal has recently published a book- and eminent conservative thinker, of the sort of judicial dis­ length argument against the possibility interest valued by Illich. Studies was, without doubt, a movement of the political left. a movement without doubt, Studies was, ments from pre-existing legal sources cannot generate persuasive ments from pre-existing legal sources and that most judges know answers to contested legal questions, that this is so. always present their opinions as applications of pre-existing law to always present their opinions as of their political will. the dispute in issue and not as impositions L But this mode of presentation is no more than a disingenuous con­ But this mode of presentation is belief public’s na¨ıve vention made necessary by an unsophisticated (Holmes, J., dissenting), United States 208 U.S. 161, 190-92 (1908) 845 (1941); Lochner v. New York, 198 U.S. Phelps Dodge Corp. v. N.L.R.B., 61 S. Ct. 45, 74-76 (1905) (Holmes, J., dissenting); overruled in part by Ct. 1028 (1963). S 2012] 2012] New Deal. with the many affiliated cal liberals, \\jciprod01\productn\W\WNE\34-2\WNE209.txt articles/archives/2011/sep/29/court-talk-judge-richard-posner/. 9-19, 44-49 (Amy Gutmann ed. 1997). contemporary defense of the law/politics distinction has been taken distinction has been the law/politics defense of contemporary by conservatives. up largely tation such as discerning the plain meaning of legal texts and dis­ of legal texts the plain meaning as discerning tation such claimed to these texts have the authors of the intentions of covering the grounds for of judicial ideology by anchoring solve the problem values. in sources outside the judge’s own judicial decision Posner C Y 32073-wne_34-2 Sheet No. 101 Side A 08/21/2012 07:54:18 A 08/21/2012 101 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 101 Side B 08/21/2012 07:54:18 R R M K C Y 195 196 , 34:507 34:507 He may [Vol. 20-AUG-12 15:22 193 ETTLED S accepted instantly accepted instantly 194 , Seq: 28 Seq: ERMANENTLY P VER unknown E S I note 177, at 89. note 189. Posner plainly subscribes to the more cynical cynical the more to subscribes plainly Posner OTHING supra 191 , : N WESTERN WESTERN NEW ENGLAND LAW REVIEW at 1-15. OSNER P Segall, supra See See Bush v. Gore, 531 U.S. 98, 110 (2000). Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. See id. 192 ONCLUSION Ivan Illich invested hope in his ideal form of adjudication not Ivan Illich invested hope in his Posner believes that the legitimacy of adjudication will easily that the legitimacy of adjudication Posner believes C 191. 193. 194. 195. 196. 192. by the public (and defended by Posner himself) despite withering defended by Posner himself) by the public (and the legal profession, and Ashcroft v. Iqbal criticism from within well be right. Decisions such as Bush v. Gore of the possible explanations suggested above for the apparent obliv­ for the apparent suggested above explanations of the possible legiti­ to their professional central threat of judges to the iousness macy. public service, book as a useful sees his He, nevertheless, a sym­ to see, while urging for all the emperor’s nakedness exposing that he is in, the pretense and acquiesce understanding of, pathetic clothed. only because he saw it as a convivial tool in itself, but also, equally only because he saw it as a convivial that it meant that no issue of legal importantly, because he believed and political structure, could ever doctrine, and therefore, of social be permanently settled. On this second point, the inherent mallea­ there is ample evidence that Illich bility of American legal doctrine, is not necessarily traceable to was accurate even if this malleability Illich envisioned.the gradual accretion of precedent the Consider insurance purchase mandate constitutional fate of the individual and Affordable Care Act en­ contained in the Patient Protection President in the spring of 2010. acted by Congress, signed by the survive his revelation, since the public will be content to accept po­ since the public will be content survive his revelation, are wise and by judges, so long as these decisions litical decisions of other major deference to the prerogatives show appropriate and economic power in our society. holders of political are signs that he is right. But if Posner is right, particularly if his role as he does is empirically accu­ claim that most judges see their for the transformative potential rate, the premise of Illich’s hope for law has disappeared. an Unless judges have reason to maintain internal commitment to Illich’s virtues—due procedure, dispassion­ equal respect for all parties, all ate openness to all arguments, and that will remain is their ideology. 534 law. rule of in the \\jciprod01\productn\W\WNE\34-2\WNE209.txt 119 (2010). 32073-wne_34-2 Sheet No. 101 Side B 08/21/2012 07:54:18 B 08/21/2012 101 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 102 Side A 08/21/2012 07:54:18 , 535 Judge law­ When OURNAL­ 197 , J 198 Commerce 20-AUG-12 15:22 , 651 F.3d 529 (6th 199 See generally Thomas A split between A split between 1 (2011). 200 aff’d prompted the Su­ (Feb. 1, 2011, 9:32 AM), 201 , 648 F.3d 1235 (11th Cir. 202 NLINE OST Seq: 29 Seq: . P ASH L.J. O , http://www.teaparty.org/about.php W ALE ORG . HE reversed in part , 648 F.3d at 1311. , T unknown ARTY , 121 Y P EA . art. I, § 8, cl. 3; Wickard v. Filburn, 317 U.S. 111 . art. I, § , 671 F.3d 391, 397-98 (4th Cir. 2011); Thomas More , T ONST Attorney Gen. v. U.S. Dep’t of Health & Human Servs., U.S. C ex rel. Attorney Gen. Bad News for Mail Robbers: The Obvious , Andrew Koppelman, Bad News for Mail Robbers: The Obvious , 132 S.Ct. 604 (2011); Liberty Univ., Inc. v. Geithner, 753 F.Supp.2d , 651 F.3d at 529. 13 Attorneys General Sue Over Health Care Overhaul Associated Press, 13 Attorneys General Sue Over Health Care Florida ex rel. (Mar. 23, 2010, 1:53 PM), http://www.usatoday.com/news/nation/2010-03­ See See What is the Tea Party? See, e.g. See generally See Florida (Mar. 22, 2010, 12:42 PM), http://journalstar.com/news/local/govt-and-polit­ LAW AND ILLICH’S VISION OF SOCIAL TRANSFORMATION TRANSFORMATION SOCIAL OF VISION AND ILLICH’S LAW ODAY cert granted By the fall of 2011, those federal courts which had considered those federal courts which had By the fall of 2011, COM . 198. 201. 197. 199. 200. 202. TAR M K was that it was so meritless as to be nearly laughable. was that it was so this litigation was commenced, the conventional wisdom among al­ wisdom the conventional was commenced, this litigation and practition­ scholars, commentators, most all legal observers, ers—in an informed among nearly everyone with other words and their clients— the lawyers who filed the suits opinion except for power doctrine which had been settled since the New Deal made which had been settled since the power doctrine purchase Congress could impose the insurance clear that of course regulate the very of a comprehensive measure to mandate as part market in health insurance. substantial interstate two federal appellate courts on the question two federal appellate courts on 23-attorneys-general-health-suit_N.htm; N.C. Aizenman & Amy Goldstein, 23-attorneys-general-health-suit_N.htm; N.C. Strikes Down Entire New Health-Care Law suits were filed almost immediately to challenge the constitutional­ to challenge filed almost immediately suits were power of the enumerated as beyond purchase mandate ity of the such reg­ and to buttress commerce to regulate interstate Congress to its success. and proper measures necessary ulation with preme Court to take it up during its 2011-12 term.preme Court to take it up during the By the time of 2012, it had become clear question was orally argued in March even a narrow majority, of the that a significant plurality, perhaps the challenge to the individual justices were sympathetic to purchase mandate. justices seemed poised to revisit, perhaps These (last visited May 24, 2012). the issue were divided on its constitutionality. the issue were divided S 2012] 2012] Party, the Tea called social movement a new by Prompted \\jciprod01\productn\W\WNE\34-2\WNE209.txt More Law Ctr. 611, 635 (W.D. Va. 2010), vacated 2011), (1942). 780 F.Supp.2d 1256, 1306 (N.D. Fla. 2011), Constitutionality of Health Care Reform ics/article_cdf483b6-35c9-11df-a053-001cc4c03286.html. ics/article_cdf483b6-35c9-11df-a053-001cc4c03286.html. . http://www.washingtonpost.com/wp-dyn/content/article/2011/01/31/AR2011013103804 Constitution html; Josh Funk, AG Bruning Says Health Reform Violates USA T Law Ctr. v. Obama, 720 F.Supp.2d 882, 895 (E.D. Mich. 2010), Cir. 2011). C Y 32073-wne_34-2 Sheet No. 102 Side A 08/21/2012 07:54:18 A 08/21/2012 102 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 102 Side B 08/21/2012 07:54:18 M K C Y 34:507 34:507 [Vol. 20-AUG-12 15:22 Seq: 30 Seq: His opinion, added to His opinion, added 205 unknown This view did not provide the basis for the the basis for the did not provide This view 204 203 206 WESTERN WESTERN NEW ENGLAND LAW REVIEW Id., slip op. at 31. Id. Nat’l Federation of Independent Businesses v. Sebelius, No. 11-393, 567 U.S. Dep’t of Health & Human Servs. v. Florida, No. 11-398, 80 U.S. Law Week We might wonder, of course, whether Illich would see the of course, whether Illich would We might wonder, In the end, as we know, five justices were indeed prepared to indeed prepared five justices were as we know, In the end, 205. 206. 204. 203. those of the four justices who viewed the mandate as within the justices who viewed the mandate those of the four to sustain its provided the fifth vote necessary commerce power, constitutionality. Court’s resolution of the Affordable Care Act litigation as an ex­ of the Affordable Care Act Court’s resolution he deplored, or approach to adjudication ample of the ideological reevaluation of the dispassionate process of open as reflective of old questions that he prized. For that matter, given his low regard system in general and the for the medical services distribution we might also wonder health insurance industry in particular, successful challenge to the whether Illich would see the nearly entrench, or to invert, a distinctly purchase mandate as an effort to hierarchy. unconvivial political and economic hold the purchase mandate beyond Congress’s power to regulate power to beyond Congress’s purchase mandate hold the commerce. interstate 536 New settled that well some of revise even maybe and reconsider, doctrine. Deal era \\jciprod01\productn\W\WNE\34-2\WNE209.txt ____, 2012 WL 2427810 (2012). 3553 (April 3, 2012). Court’s decision, however, because one of the five, Chief Justice of the five, Chief because one decision, however, Court’s by Article I, mandate as a federal tax authorized Roberts, saw the 1 of the Constitution. Section 8, Clause 32073-wne_34-2 Sheet No. 102 Side B 08/21/2012 07:54:18 B 08/21/2012 102 Side Sheet No. 32073-wne_34-2