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creative legalism

You should be a strategic legalist because it’s more effective and increases activist CREATIVITY – this card is sorta long

Smith 2012 (Andrea, “The Moral Limits of the Law: Settler Colonialism and the Anti-Violence Movement” settler colonial studies 2, 2 (2012) Special Issue: Karangatia: Calling Out Gender and Sexuality in Settler Societies)
Aside from Derrick Bell, because racial and gender justice legal advocates are so invested in the morality of the law, there has not been sustained strategising on what other possible frameworks may be used. Bell provides some possibilities, but does not specifically engage alternative strategies in a sustained fashion. Thus, it may be helpful to look for new possibilities in an unexpected place, the work of anti-trust legal scholar Christopher Leslie. Again, the work of Leslie may seem quite remote from scholars and activists organizing against the logics of settler colonialism. But it may be the fact that Leslie is not directly engaging in social justice work that allows him to disinvest in the morality of the law in a manner which is often difficult for those who are directly engaged in social justice work to do. This disinvestment, I contend is critical for those who wish to dismantle settler colonialism to rethink their legal strategies. In ‘Trust, Distrust, and Anti-Trust’, Christopher Leslie explains that while the economic impact of cartels is incalculable, cartels are also unstable.18 Because cartel members cannot develop formal relationships with each other, they must develop partnerships based on informal trust mechanisms in order to overcome the famous ‘prisoners’ dilemma’. The prisoner’s dilemma, as described by Leslie, is one in which two prisoners are arrested and questioned separately with no opportunity for communication between them. There is enough evidence to convict both of minor crimes for a one year sentence but not enough for a more substantive sentence. The police offer both prisoners the following deal: if you confess and implicate your partner, and your partner does not confess, you will be set free and your partner will receive a ten-year sentence. If you confess, and he does as well, then you will both receive a five-year sentence. In this scenario, it becomes the rational choice for both to confess because if the first person does not confess and the second person does, the first person will receive a ten-year sentence. Ironically, however, while both will confess, it would have been in both of their interests not to confess. Similarly, Leslie argues, cartels face the prisoners’ dilemma. If all cartel members agree to fix a price, and abide by this price fixing, then all will benefit. However, individual cartel members are faced with the dilemma of whether or not they should join the cartel and then cheat by lowering prices. They fear that if they do not cheat, someone else will and drive them out of business. At the same time, by cheating, they disrupt the cartel that would have enabled them to all profit with higher prices. In addition, they face a second dilemma when faced with anti-trust legislation. Should they confess in exchange for immunity or take the chance that no one else will confess and implicate them? Cartel members can develop mechanisms to circumvent pressures. Such mechanisms include the development of personal relationships, frequent communication, goodwill gestures, etc. In the absence of trust, cartels may employ trust substitutes such as informal contracts and monitoring mechanisms. When these trust and trust substitute mechanisms break down, the cartel members will start to cheat, thus causing the cartel to disintegrate. Thus, Leslie proposes, anti-trust legislation should focus on laws that will strategically disrupt trust mechanisms. Unlike racial or gender justice advocates who focus on making moral statements through the law, Leslie proposes using the law for strategic ends, even if the law makes a morally suspect statement. For instance, in his article, ‘Anti-Trust Amnesty, Game Theory, and Cartel Stability’, Leslie critiques the federal Anti-Trust’s 1993 Corporate Lenience Policy that provided greater incentives for cartel partners to report on cartel activity. This policy provided ‘automatic’ amnesty for the first cartel member to confess, and decreasing leniency for subsequent confessors in the order to which they confessed. Leslie notes that this amnesty led to an increase of amnesty applications.19 However, Leslie notes that the effectiveness of this reform is hindered by the fact that the ringleader of the cartel is not eligible for amnesty. This policy seems morally sound. Why would we want the ringleader, the person who most profited from the cartel, to be eligible for amnesty? The problem, however, with attempting to make a moral statement through the law is that it is counter-productive if the goal is to actually break up cartels. If the ringleader is never eligible for amnesty, the ringleader becomes inherently trustworthy because he has no incentive to ever report on his partners. Through his inherent trustworthiness, the cartel can build its trust mechanisms. Thus, argues Leslie, the most effective way to destroy cartels is to render all members untrustworthy by granting all the possibility of immunity. While Leslie’s analysis is directed towards policy, it also suggests an alternative framework for pursuing social justice through the law, to employ it for its strategic effects rather than through the moral statements it purports to make. It is ironic that an anti-trust scholar such as Leslie displays less ‘trust’ in the law than do many anti-racist/anti-colonial activists and scholars who work through legal reform.20 It also indicates that it is possible to engage legal reform more strategically if one no longer trusts it. As Beth Richie notes, the anti-violence movement’s primary strategy for addressing gender violence was to articulate it as a crime.21 Because it is presumed that the best way to address a social ill is to call it a ‘crime’, this strategy is then deemed the correct moral strategy. When this strategy backfires and does not end violence, and in many cases increases violence against women, it becomes difficult to argue against this strategy because it has been articulated in moral terms. If, however, we were to focus on legal reforms chosen for their strategic effects, it would be easier to change the strategy should our calculus of its strategic effects suggest so. We would also be less complacent about the legal reforms we advocate as has happened with most of the laws that have been passed on gender violence. Advocates presume that because they helped pass a ‘moral’ law, then their job is done. If, however, the criteria for legal reforms are their strategic effects, we would then be continually monitoring the operation of these laws to see if they were having the desired effects. For instance, since the primary reason women do not leave battering relationships is because they do not have another home to go, what if our legal strategies shifted from criminalising domestic violence to advocating affordable housing? While the shift from criminalisation may seem immoral, women are often removed from public housing under one strike laws in which they lose access to public housing if a ‘crime’ (including domestic violence) happens in their residence, whether or not they are the perpetrator. If our goal was actually to keep women safe, we might need to creatively rethink what legal reforms would actually increase safety.


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