Non-Reformist Reforms and Struggles over Life, Death, and Democracy
abstract. Today’s left social movements are challenging formal law and politics for their capitulation to a regime of racial capitalism. In this Feature, I argue that we must reconceive our relationship to reform and the popular struggles in which they are embedded. I examine the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end goal but as struggles to reconstitute the terms of life, death, and democracy. Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. Today’s thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organization that we might build to govern society, and an effort to democratize relations of power: to have fundamentally different people at the helm.
Part I identifies the return of a commonsense on the left that racism and capitalism are entangled and co-constitutive of the unequal and undemocratic world. Part II lays out left critiques of reformism and offers a schematic history for “non-reformist reforms” as a competing conceptual frame to the neoliberal or liberal reformism dominant in the legal academy. In centering productive contradictions between reform and revolution, the heuristic requires engaging with systems as they are, allows one to hold in view bold and radical horizons, and facilitates the identification of strategic battles that might serve as a bridge through popular agitation.
Because non-reformist reforms emerge from theories of change rooted in building popular power, Part III attends to actually existing sites of struggle in the United States: abolition and decriminalization; decolonization and decommodification; and democratization. I turn to major campaigns, including #StopCopCity in Atlanta; organizing to cancel rent by KC Tenants in Kansas City, Missouri, and to cancel student debt by the Debt Collective; and the Democratic Socialists of America’s (DSA) joint campaign for the Protect the Right to Organize (PRO) Act and the Green New Deal.
Part IV turns to the disciplinary reorientations required for engaging law as a partial terrain of mass politics. I outline four fundamental distinctions between non-reformist reforms and liberal and neoliberal approaches to reform. Non-reformist reforms require a horizon beyond legalism; they embrace antagonism and conflict rather than depoliticization and neutrality; they aim to shift the balance of power; and they build mass organization and prepare the people to govern.
author. Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Law, The Ohio State University, Moritz College of Law. My deepest thanks to the people who read drafts and talked to me about the ideas presented here, and to the many social-movement organizations, organizers, and activists, past and present, working to build a more just world against extraordinary odds. Many of those people and organizations are acknowledged in the footnotes through citation to their works. But the long list includes: Abbye Atkinson, Alex Colston, Alyssa Battistoni, Andrea Ritchie, Amy J. Cohen, Amy Kapczynski, Anna Roberts, Angela P. Harris, Aslı Ü. Bâli, Aziz Rana, Benjamin Levin, Bernard E. Harcourt, César Cuauhtémoc García Hernández, Corinne Blalock, Cynthia Bowman, Daria Roithmayr, Deborah N. Archer, Derecka Purnell, Douglas NeJaime, Erin Murphy, Felix Chang, Gina Dent, Guy Uriel-Charles, James Brandt, Jawziya F. Zaman, Jocelyn Simonson, Kate Redburn, K-Sue Park, Karen M. Tani, Lucie White, Marbre Stahly-Butts, Martha T. McCluskey, Nikolas Bowie, Noah D. Zatz, Omavi Shukur, Paul Butler, Rachel Herzing, Ryan D. Doerfler, Ruth Colker, Sa’dia Rehman, Sameer M. Ashar, Sanjay Jolly, Sean Hill, Sharon Dolovich, Silky Shah, E. Tendayi Achiume, Veena B. Dubal, Vincent M. Southerland, William E. Forbath, and Yochai Benkler. Workshops sharpened ideas in dialogue: the Race, Care, Capitalism Workshop at Yale Law School; the Harvard Law School Law and Political Economy Workshop; the NYU Law School Race and Inequality Colloquium; the UCLA Advanced Critical Race Theory Seminar; the Association for the Promotion of Political Economy and the Law (APPEAL) workshop; and faculty workshops at Michigan, Georgetown, Syracuse, Ohio State, Wake Forest, and the University of Southern California. Librarians extraordinaire Kaylie Vermillion, Natasha Landon, and Jey Hernandez provided indispensable labor, as did research assistants Arabella Colombier, Breeana Minton, Daria Mateescu, Divya Korada, Eleni Christofides, Jason Ketchum, Jesse Vogel, Kendall Beard, Laïssa Christelle Alexis, Megan Porter, Sara Dagher, and Thomas Pope. Special thanks to Fernando Rojas, Charles Jetty, Malina J. Simard-Halm, Caroline L. Parker, and the many editors at the Yale Law Journal that worked tirelessly on this piece. Four weeks at the Hedgebrook Writer-in-Residence Program on Whidbey Island made this writing possible.
Introduction
In the United States, law is idealized as a product of tripartite government, an exercise of democratic process or popular will held in place by checks and balances. But whichever branch you examine—the judiciary, the legislature, or the executive—individually or collectively, at the local, state, or federal level, you will not find a map of democratic process or popular will. The Supreme Court is composed of nine Justices with life tenure and the power to veto legislation and executive action; Congress is captured by corporate power and gerrymandered districts with two senators per state regardless of population; and the route to the presidency is carved out of the Electoral College rather than the popular vote.1 Both parties have closer ties to billionaires, millionaires, and each other than they do to the people they purport to represent.2 Even the vote—the ostensible center of electoral democracy—is subject to rampant suppression and disenfranchisement.3 Antidemocratic institutional features in our system of laws are rife.4
It is unclear whether law’s aspiration can even be described as democratic. Legal, legislative, and administrative processes are exercises in technocratic expertise—defined by those with concentrated economic and political power.5 The violence of policing and incarceration is an engine of the state.6 Courts facilitate political, economic, and social stratification by providing cover for evictions, deportation, incarceration, debt collection, and family separation against the poor and working class.7 Environmental and infrastructural catastrophe are a feature of life across the United States into its colonies and territories, as are depressed wages, widespread hunger, ballooning debt, reduced life expectancy, sprawling housing insecurity, and a healthcare system that puts profit over people.8 The state ignores or facilitates these problems. No wonder public faith in the U.S. government is hovering near record lows.9
For those of us who see the world around us on fire, the question is what is to be done. For the law professor, the lawyer, and even the law student, reform and regulation are the ever-present terrain.10 In courtrooms, classrooms, and law reviews, the circuitry of conversation moves from diagnosing a problem to suggesting a reform. Not long ago, it felt as if conversations about reform assumed the legitimacy of the prevailing political, economic, social, and juridical order: tweaks of doctrine or, perhaps, policy; the audience and discussants one and the same—our colleagues, the courts, agencies, bureaucrats, perhaps legislators.11 These debates often felt inflected by such hopelessness that I sometimes felt the political horizon was not much further than my nose. That a “reform” could be imagined as a “solution” suggested our discourse reduced questions of life and death to the tiniest of “problems”—now solvable by the expert and political classes.
Neoliberal reform projects have funneled social problems into the market and the prison to solve; and both are insulated from popular input.12 Legal scholarship often mirrors the fundamental faith in the market and the prison. Private-law scholarship emphasizes “overcom[ing] inefficiencies and press[ing] toward wealth-maximizing outcomes” while public-law scholarship focuses on “narrowly defined differential treatment of individuals, especially by the state.”13 Across scholarly siloes, concern for economic power or distribution is diminished, obscuring the structuring force of concentrated economic power.14 Faith in markets is too often paired with a deep “pessimism about . . . politics and the effectiveness of the state,” rendering collective action the task of fools.15
But over the almost two decades of my career as a lawyer and law professor, conversations about reform have shapeshifted.16 In 2011, three years after the global financial crisis hit, Tunisian produce vendor Mohamed Bouazizi immolated himself in protest of unemployment, indebtedness, and police harassment.17 His act sparked the Arab Spring, which, in turn, set off Occupy Wall Street in New York City.18 Since then, a drumbeat of protest has disrupted seemingly settled terms of law and policy.19 These popular protests cannot be read as simple or linear—they are uneven and filled with contradictory impulses.20 In the United States, mass protests took place during the summer of 2020 in response to the police murder of George Floyd, and expressed hope and futility by tens of millions of people.21 These protests meditated not on questions of efficiency or wealth maximization but on life and death.22 They embodied popular revolts against the state, the status quo, and electoral democracy.23
This decade-plus of riots and social movements is like nothing we have seen since the 1960s and 1970s. It is impossible to know when this period of heightened protest will die down. We may already be within its recesses. But that the struggles are global, popular, and iterative speaks to the systemic nature of the problems.24 In the United States, large majorities of the public support greater regulation of guns and the environment, easy access to abortion, some version of Medicare for All, a higher minimum wage, paid sick and parental leave, and greater taxation of millionaires and billionaires—and yet these preferences rarely take shape in law and policy.25 It is curious the extent to which the political class has chastised grassroots demands like defunding the police or the Green New Deal for their unpopularity, when it is increasingly clear that the structures of the state fortress law and policy from public needs and aspirations.26 To put it plainly: what does popularity have to do with law and policy anyway?
A familiar scholarly posture for the law professor is to defend and defer to formal law and politics, its forums, and processes: the courtroom, the vote, notice-and-comment, and so on. This posture typically involves skepticism of protest as anarchy and of radical demands as counterproductive.27 There are whole bodies of scholarship oriented toward legitimating state power, even state violence.28 Law faculty come in and out of judicial, legislative, and executive offices, often at the highest echelons of state power. We advise corporations and the police.29 We serve on commissions and working groups to study problems raised by streets protests.30 We do this work often to the exclusion of those who organized, protested, and even risked or lost their lives for the state to take these issues seriously. We are essential parts of the state’s arsenal to reassert the status quo in which inequality and violence flourish.31
In this Feature, I argue that we must reconceive our relationship to reforms and the popular struggles in which they are embedded.32 I examine the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end goal but as struggles to reconstitute the terms of life, death, and democracy. Today’s left social movements are challenging formal law and politics for their capitulation to a regime of racial capitalism and how it reproduces raced, classed, and gendered domination, exploitation, dispossession, and exposure to premature death.33 The turn to non-reformist reform is part of a larger meditation on what strategies and tactics will help build a more equal and just society, one that works for the many rather than the few, where people have their needs met and democracy extends to all realms of life well beyond the ballot box.34
Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. They seek to redistribute power and reconstitute who governs and how. Today’s thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organization that we might build to govern society, and an effort to democratize relations of power: to have fundamentally different people at the helm.
Social movements highlight the relationships between our understanding of the world around us (criticism), the world we fight for (horizon), and the reforms, strategies, and tactics that might bridge the two (praxis). The discourse on non-reformist reforms, then, reflects theories of social change35 on the margins of legal scholarship.36 There is an underlying argument within the Feature—I do not go to any real length to substantiate it—that protest and organizing put pressure on and transform law. But I avoid fetishizing law as the ultimate object of emancipatory projects that aim to change the many lifeworlds we inhabit.37
Law and lawyers have a place in social-change work, but to assert the roles as primary is to capitulate to a conception of power that is top-down and centralized rather than everywhere and relational. What does it mean to think about law in relation to emancipation and long freedom struggles?38 To begin, it requires that we understand law as a site of domination, exploitation, expropriation, and legitimation—and lawyers as central partners therein.39 Law is neither above nor below politics or reason, nor is it the entire domain of politics or reason itself. Law is a partial and dynamic terrain of political, economic, and social struggle. It is a place and a language where power is shaped and contested, and where relations of class, race, gender, and ability are made and remade.40 It is a tool, a strategy, a tactic, and it contributes to the terms of life, death, and democracy.41
Part I identifies the broad return of a commonsense on the left that racism and capitalism are entangled and co-constitutive of the unequal and undemocratic world around us.42 This turn toward materializing racism asserts the dynamic relationship of racism to economic processes and relations.43 It understands racism as rooted in and reproducing uneven structures of organized exploitation (e.g., wage labor), expropriation (e.g., gentrification), and violence (e.g., incarceration). The turn to antiracist and anticapitalist politics has reconstituted the terrain of racial-justice discourse and organizing and attendant conversations on law and policy. Once racism and capitalism are understood as soldered together, it becomes clear that emancipatory projects must take them on together. That freedom struggles cannot succeed by approaching law narrowly, with trust, or in isolation. As horizons of emancipation are illuminated, the strategies and tactics expand beyond formal legal process and law itself. Reform and regulation can no longer be end goals; instead, they live among an array of contradictory strategies and tactics for emancipation.44
Part II lays out left critiques of reformism and offers a schematic history for “non-reformist reforms” as a competing conceptual frame to the neoliberal or liberal reformism dominant in the legal academy. In centering productive contradictions between reform and revolution, the heuristic facilitates strategic and tactical questions that “reformist reforms” do not: it requires engaging with systems as they are, allows one to hold in view bold and radical horizons, and facilitates the identification of strategic battles that might serve as a bridge through popular agitation. Rooted in the mid-twentieth-century writings of the French Austrian philosopher André Gorz and recently retooled by the geographer Ruth Wilson Gilmore, non-reformist reforms are a response to the impasse of liberal reformism and traditional conceptions of armed revolution.45 They offer another way of responding to the capture of law, politics, and the state.
Because non-reformist reforms emerge from theories of change rooted in building popular power, Part III attends to actually existing sites of struggle in the United States: abolition and decriminalization; decolonization and decommodification; and democratization.46 I turn to major campaigns, including #StopCopCity in Atlanta; organizing to cancel rent by KC Tenants in Kansas City, Missouri, and to cancel student debt by the Debt Collective; and workers organizing for collective power, and the Democratic Socialists of America’s (DSA) joint campaign for the Protect the Right to Organize (PRO) Act and the Green New Deal. While others may disagree with my characterizations of these as prevailing winds, I offer the assessment to provoke debate about the sort of reform projects legal scholars may pursue in alignment with the emancipatory organizing of our time.47 This work of “movement law”—thinking in conversation with emancipatory movements—provides a distinctive way to deploy expertise through more collaborative practices than scholars typically pursue.48
Part IV turns to the disciplinary reorientations required for engaging law as a potential terrain of mass politics. I outline four fundamental distinctions between non-reformist reforms and liberal and neoliberal approaches to reform. Non-reformist reforms require a horizon beyond legalism; they embrace antagonism and conflict rather than depoliticization and neutrality; they aim to shift the balance of power; and they build mass organization and prepare the people to govern.