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Workshop rethinks how the law treats human vulnerability

Martha McCluskey

A workshop organized by Martha McCluskey will look at how the law might improve the human condition.

By ILENE FLEISCHMANN

Published June 19, 2014

“The goal of law in promoting well-being is not simply to get a bigger piece of the economic pie. Rather, it’s to provide resilience, the ability to respond to the ongoing series of risks and vulnerabilities that we all face.”
Martha McCluskey, William J. Magavern Faculty Scholar
UB Law School

No less than “a new way of thinking about the foundations of law” was on the table at an innovative workshop that took place June 13 and 14 at the UB Law School.

The workshop, “Vulnerability, Resilience and Public Responsibility for Social and Economic Well-Being,” brought together progressive thinkers in law and other disciplines to explore some fundamental questions about how law might improve the human condition.

Martha T. McCluskey, William J. Magavern Faculty Scholar, organized the workshop in collaboration with Emory University law professor Martha A. Fineman and Hunter College social work professor Mimi Abramovitz.

“The idea,” McCluskey said, “is to shift from the current assumption in law in the United States that people are generally autonomous, self-reliant individuals making their own bargains for their own economic well-being. We’re trying to shift that assumption to recognize that the universal condition of being human is that we are interdependent, and throughout our life cycle often we’re dependent on others.” Infancy is the first instance, but many, if not most people as well will experience periods of disability and illness, she notes.

The workshop, McCluskey said, asked, “How does the question of government’s role in advancing and protecting economic well-being change when we change that assumption?”

That idea of universal human vulnerability — and the law’s role in supporting the people it serves — is paired with the concept of resilience: people’s ability to overcome adversity and thrive. “The goal of law in promoting well-being is not simply to get a bigger piece of the economic pie,” McCluskey said. “Rather, it’s to provide resilience, the ability to respond to the ongoing series of risks and vulnerabilities that we all face. We want to build up people’s capacity to respond and meet their needs. That doesn’t mean being independent; it means getting the support you need so that you can weather the vicissitudes of life.”

That involves a different measuring stick for assessing the effects of social policies. Rather than simply assessing people’s economic well-being, McCluskey said, policies should be judged by how well they secure a society against another financial-system meltdown, or protect against environmental or climate catastrophe, or provide a safety net of services and support in times of illness.

It’s a question with important implications for wrestling with economic inequality, McCluskey said, when we recognize that what we think of as a market of free economic choices is, in fact, “permeated with legal institutions that are premised on protecting some vulnerabilities but not others.” For example, she said the legal fiction that a corporation is a person means that it is given legal privileges, such as protection from individual civil liability for its investors.

The workshop grew out of Emory University’s Vulnerability and the Human Condition Project, as well as the UB Law School’s Economic Justice Studies Project, which looks at how law has played into such problems as the financial crisis and growing income inequality, and how it might be part of the solution. The aim, McCluskey said, is “to look not just at technical policy solutions, but to step back and look at the big picture and ask questions about foundational assumptions.”

Among the workshop presenters was UB Law lecturer Christine P. Bartholomew, whose paper is titled “Redefining Prey and Predator in Class Actions.” Other presenters were from the law schools of the University of Tennessee, the University of Victoria, the University of San Francisco, Tulane University, Seattle University, the University of Hawaii, Emory University, Tel Aviv University, Shandong University in China and the University of Toronto.