CONCLUSION

Distribution and Decision

Assessing Governance Feminism

JANET HALLEY

We have argued in the Preface to this book that as long as GF exists,

feminists who wish to embrace it or who struggle with it should do so
in what Max Weber called an ethic of responsibility.1 There are many
ways to do that. Here we offer one of them—doing a distributional
analysis. The chief advantage of distributional analysis is that it is
oriented not to the symbolic “norm announcing” function of law and
legal institutions but to their distributional consequences. It asks of
any particular element of governance: what distributions does it leave
in place, and what distributions does it shift? Attempting to see distri-
butions enables one to imagine redistributions. And that is where the
ethic of responsibility engages. Once you see and imagine them, you
can now ask: Do you think they are good or bad?
Doing a distributional analysis is a classic mode of work in critical
legal studies (CLS).2 Though it follows many of the steps of standard
utility-maximizing welfare economics, it rejects the market-affirming
­
­
premises that permeate that intellectual protocol and instead traces its
roots back to Marx, through legal realism, and into the flowering of
CLS in the 1980s and 1990s. Here, I set forth not a full theoretical
statement of the motives and practices that have seemed to various la-
borers in this vineyard to help them trace distribution and imagine
how to reshape it,3 but a short how-to manual with theoretical back-
­
ing brought in as sparely as possible to clarify the argument.4
You can do a distributional analysis in your mind while walking to
an important meeting where you play a femocrat role or via a highly

253
254 Conclusion

abbreviated e-mail huddle with allies; you can make it the form and

­
substance of a long book. Basically, you are trying to identify the con-
sequences of introducing a change in the status quo and then deciding
whether they are “worth it.” In this chapter, I elaborate three ideal,
typical “steps” in a full-blown, completely elaborated distributional
­
analysis, two of which have several substeps. Articulating even one of
the substeps can be a major contribution.

Separating Is from Ought

If you want to know what the law really is, teaches Oliver Wendell
Holmes, imagine it not suffused through the hazy filter of its moral
justification but from the beady-eyed perspective of the bad man: the
­
man who wants to maximize his gains and minimize his losses and
who wants to know what the legal system will do — actually do, not just
 
 ­
promise to do — to reward, help, hinder, block, fine, or imprison him.5
 
 ­
What the legal system will actually do is, in this view, what the law is.
Holmes’s attitude toward the bad man is hotly contested: he is the
father of legal realism, and very diverse children claim his patrimony.
The CLS reading detects no suggestion that Holmes aimed to affirm
the bad man as a normative legal actor, an exemplar, a person we are
permitted by realist legal theory to be, or the everyman whom law-
makers try and fail to control. The bad man, instead, is an imaginary
standpoint: looking at law the way he would look at it allows one to see
a particular legal order not for its vaunted merits but as what it does.
One aspect of this move, for Holmes, was peeling law apart from
morality. Karl Llewellyn later called this “separating is from ought”;6
pushing one’s own moral lenses to one side, to return to later, when
the hard job of detached description is done. It is a very hard ethical
discipline. The effort is to see the whole thing, not just the parts you
already love and resent.

Identifying the Struggle and the Players

As David Kennedy puts it, the distributions achieved in social life are
produced through struggle.7 All the places GF emerges are such sites
of struggle. To envision that struggle, he urges, we should think not of
institutions like states and political parties but of people with projects.8
 Conclusion 255

It is possible to think of the transaction you are concerned about ei-
ther as a game with many players or as a zone of human concern
marked by convergence and conflict. You can think of the various
people involved in the game, in the struggle, as players, as stakehold-
ers, as the end users of the legal system. Let us look at prostitution.
Who besides the prostitute and the customer is involved? Do we see
landlords? Madams? Pimps? Police? Clients? Johns? Brothels with in-
stitutional structures of their own? Neighbors? Communities? What
about the husbands or boyfriends of the sex workers, or the wives of
the clients? Does anyone have children to support? How do they inter-
act among themselves? What are they seeking? What strategies do
they follow, and why do they think those steps will lead them closer to
their goals?
Envisioning people with projects makes it easier to stay attentive
when players in struggle identify costs and benefits in surprising ways,
as they often do. Here, again, we find a deviation from standard wel-
fare economics: critical distributional analysis makes no assumption
that goods are commensurable, zero-sum, or reducible to a single
­
yardstick like “the dollar” or even “value.” In sex, some are masochists:
they seek suffering. In market exchange, some love to be benefactors:
they tip big. Everyone is partly, if not mostly, crazy. Market rationality
does not begin to capture the range of motives, desires, and aversions.
To follow our sex markets example, some sex workers come into “the
life” through force, or force of circumstances, and often underage.
Collapsing the entire sex worker population under the rubric “under-
age victims of systematic rape” misses the fact that even those sex
workers — to the extent that they had any opportunities for exit that
 
 ­
they did not take — are in a different position later on, and have a very
 
 ­
different profile of desires and goals than they did when they first be-
gan to trade sex for compensation. Equating all sex workers as sex
slaves aggregates street sex workers, brothel-based workers, workers
­
who become pimps or madams over time, and escorts: but a distribu-
tional analysis would be interested in the fact that any robust sex mar-
ket differentiates. And it goes deeper than that: the affective life of a
single sex worker is complex, irreducible to formulae about trauma
and posttraumatic stress disorder. Would it be possible for a feminist
to engage sympathetically with the prostitute’s clients as people with
projects? With the pimp or the madam? With the trafficker? These
256 Conclusion

would be acts of imagination that could significantly expand the dis-
tributional analysis.

Identifying the Surplus at Stake

Now that you have the players, you can begin to think about the price
each of them pays to be part of the struggle, and the gains they hope
to capture by staying in it.
In the tradition of distributional analysis that Duncan Kennedy
draws from Richard Ricardo and Karl Marx and through legal real-
ism and CLS,9 this analysis starts by identifying not the injury — the

 
 ­
violence, the discrimination, the harm — in a given setting but the sur-
 
 ­
plus it generates. What gain in human welfare — quantifiable like prof-
 
 ­
its or nonquantifiable like pleasure or prestige — does a given struggle
 
 ­
produce?10
This step alone radically departs from liberal and neoliberal as-
sumptions about what an economy is and what the law does to help
and hurt people engaged with each other in economic exchange.
Liberal and neoliberal economic theory — both based on neoclassical
 
 ­
economics — assumes that free-market exchanges motivated by in-
 
 ­
­
dividual preferences and unhampered by transaction costs leave all
players better off. But Marxist economic theory posits that market
exchanges produce a surplus — value over and above the bare costs of
 
 ­
production—that can be appropriated by players with superior social
 
 ­
power.11 Liberal and neoliberal economic theory starts with an assump-
tion that the distributions of the market are fair; redistribution under
these circumstances is an appropriation needing a strong policy justifi-
cation. It systematically denies even the existence of a surplus. But the
latter sees the surplus as up for grabs, normatively, no matter where it
actually ends up in exchanges among market actors. A distributional
analysis that starts by identifying the surplus therefore posits from the
start a normative question about the justice of its distribution, and thus
the possibility of normatively justifiable redistribution.
This set of inconsistent assumptions then conditions the possibilities
for law. Under liberal and neoliberal assumptions, legal intervention
is justifiable only when business as usual goes awry. Call it John Stuart
Mill’s harm principle;12 call it the will theory;13 call it the freedom/
force distinction;14 call it political and civil emancipation.15 The basic
liberal idea is that people are and should be free until they interfere
 Conclusion 257


with the freedom of others, coerce others, harm others, or step into
the sphere of action properly allocated to others. Then and only then
can the state justifiably step in and restrict their freedom. In a free-
dom of contract regime, this means that trades are fair as long as they
are not formed through force, fraud, or coercion. In a regime pre-
mised on the idea that employers and service providers are market-

­
rational actors who seek the “right” gain from trade in every encoun-
ter with workers and customers, discrimination is a wrong because it
robs transactions of their rationality.16 Both of these approaches take
for granted the baseline distribution that the players would have gotten
absent the harm or the force. Suing a corporation for discrimination is
seeking restoration of that presumed-market-rational deal. As Shamir
­
­
argues in chapter 5, prosecuting a labor broker for trafficking effec-
tively ratifies the legitimacy of all the labor deals made in the system
that respect the contract freedom of the worker. Starting a distribu-
tional analysis by identifying the surplus, however, assumes that all
the social goods at stake in an exchange are distributed in the game and
are normatively open to redistribution.
However beneficial antidiscrimination law may be in strengthening
the bargaining position of members of disadvantaged groups, there is
no reason to adopt its freedom/force paradigm or its harm principle for
analyzing complex distributional interactions, and good reason to sus-
pect that exploitation of superior social power, subtended by law, will be
exposed to view if we assume that a surplus is at play. Identifying the
surplus thus involves framing the whole transaction, not just the act of
violence or discrimination that may mar it. Identifying the surplus as-
sumes that market transactions can achieve bad distributions—horribly
 
 ­
unfair, immiserating, and exploitative ones—even when they are punc-
 
 ­
tiliously free of force, fraud, or coercion; of legally recognized harm;
and of discrimination. All the corporation’s profits, all the allure of its
stock on the stock exchanges, all its contracts with suppliers, all the
wages and benefits, even all the fun, security, and résumé enhancement
people enjoy by working for it, come within the frame.
A word on the frame. You cannot frame everything in. How far out
do you look for players? In our sex work example, do you want to in-
clude the wives of customers?17 How deep into the psyche do you want
to go to find surprising forms of surplus? Any distributional analysis
done with limited time and resources is subject to the depth/breadth
258 Conclusion

trade-off: the deeper you go, the less broad your coverage will be, and
vice versa. But the frame has to make sense to be a good fit with the
political and intellectual problem that motivates the analysis in the
first place. Ideally, your intended audience will recognize the frame as
a fair way to divide the world into a small part that you are paying at-
tention to and the infinitude of the rest, that vast zone you must leave
out. This is an inductive and political question. Getting the frame right
enough is part of the challenge.
One thing that does not make sense, ever, is to frame in only the los-
ers. What are they losing, exactly? Who are they losing to? How tri-
umphal are the winners in that transaction, and what do they lose to
other, even more powerful players? Can you see them as losers too, by
shifting the frame to include more of their struggle? Why were all
these people in the game in the first place? It almost always makes
sense to attend to local knowledge: if the sex workers think of and use
their brothel not as a sweatshop or a prison but as a household — sharing

 
 ­
daily chores and raising children there — you might want to try imag-
 
 ­
ining it that way too.
But above all, you have now identified the surplus. How does it get
distributed? Let us go back to our prostitution example. What are the
goods sought by the people engaged in this particular form of human
struggle? You could stop at monetary rewards; sorting that out would
be a major contribution. But there is so much else at stake. Some sex
workers value the entrepreneurial form of the labor, the flexible sched-
ules, and the ability (if they have it) to limit their clientele to repeat
players; others value the opportunity to work in a more cash-rich eco-
­
nomic setting than they can find in their home country, even if they
have to be among the lowest-paid workers and do the most dangerous
­
work; others are fleeing from something close to starvation or home-
lessness and find sex work to be a step up. Sometimes their only real-
istic alternatives to sex work in the labor markets available to them are
actually, in their view, more immiserating. The surplus sought by their
customers is equally diverse: some seek to have sex that degrades and
harms their partners, some intend rape, some are violent, and some
like to conjoin sex with subordination. But others seek connection, the
whole range of pleasures that come with sex minus a deep or domestic
relationship; others seek danger; and others are ashamed of what they
are doing and pursue commercial sex almost in a masochistic frenzy.
 Conclusion 259


Many so-called pimps and madams are vicious exploiters, but others
­
are not. Most of them have ended up as petty managers in a danger-
ous underworld sector not because they are full of power but because
they lack it. Some of them are just eking by. Identifying the surplus is
a work of imagination, just as seeing the law from the point of view of
the bad man is an act of imagination. What do these people with proj-
ects see as a good they could extract from the struggle?

Bargaining in the Shadow of the Law — That Is,

 
 ­
in the Shadow of the Background Rules
We imagine all the players in the struggle not so much governed by
law as conditioned by it. They bargain with the other players not “un-
der” the law but in its shadow, in the predictive range of their individ-
ual and collective guesses about what the law might do if X, Y, or Z
happens. Following Lewis Kornhauser and Robert Mnookin, we call
this bargaining in the shadow of the law.18
There will almost always be some glamorous, ideologically satu-
rated legal rules that people focus on when debating a distributional
system. These foreground rules will often be constitutional rights or
crimes: freedom of contract / right to work; the crime of prostitution;
trafficking as force, fraud, or coercion. They are not even half the story,
however. Each of the player types has a deep field of background rules
that condition its play.
Bargaining in the shadow of the background rules is a much more
dynamic, crazily complex thing than determining whether a contract
was free or forced or whether an employment contract was denied “be-
cause of sex.” All but the most absolutely dominated and enslaved find
material to work with in the background rules; rules can come in and
out of importance depending on the state of play and its imagined tra-
jectory; players have highly differing estimates of the costs and bene-
fits of using various legally enabled strategies.
The legal theory classic that underlies Kornhauser and Mnookin’s
formulation is Robert Hale’s 1923 article “Coercion and Distribution
in a Supposedly Noncoercive State.”19 For Hale, the super-glamorous
­
foreground rule was the U.S. Supreme Court’s holding, in Lochner v.
New York20 and related cases, that the Due Process Clause of the Con-
stitution required the Supreme Court to uphold the freedom of
contract: the right of contracting parties to determine, without state
260 Conclusion

interference, the terms of their agreement. In the Lochner case itself,
this meant that a statute limiting the number of hours that bakers
could be required to work — a statute that had been unanimously ad-

 
 ­
opted by the New York legislature — was unconstitutional. All eyes

 
 ­
were on this constitutional holding as the Supreme Court repeatedly
blocked efforts by the legislative branch to regulate market exchange,
often, as in Lochner, to protect the weaker party. But Hale moved to
the background rules, specifically the rules of property, as the key to
understanding the social encounter of the factory owner and the
worker. And there, he argued, the liberal pairing of freedom (good)
with coercion (bad) implied in the theory of freedom of contract was
simply inapplicable: all contracts entered into by all parties — weak and

 
 ­
strong — were coerced when their opponents in struggle used their
 
 ­
law-endowed power to walk away from any particular deal. The prop-
­
erty owner had a lot more of this power and could refuse to deal with
the propertyless man up to and beyond the point where the latter
starved. Property rules allowing property owners to refuse access to
their property — whether it be a bag of peanuts, a plot of land to grow
 
 ­
food on, the material needed to make a broom to sell, or a factory with
shop-floor jobs on offer — gave them coercive power over the proper-
­
 
 ­
tyless man seeking to relieve his hunger. Any deal he made with them
was coerced. But the propertyless man had counter-coercive power en-
­
dowed by the same body of law: he could refuse to work for this or
that factory owner and drive up the wage all of them had to offer to
obtain his labor. Any deal the factory owner made with its workers was
also coerced.21 Hale here follows Holmes and paves the way to Llewelyn
in separating “is” from “ought,” by demoralizing concepts fundamen-
tal to liberalism in order to see more clearly the operation of law in
conditioning social bargaining.
Hale concludes: “The distribution of income . . . depends on the rela-
tive power of coercion which the different members of the community
can exert against one another.”22 Doing a distributional analysis can
enable you to analyze market interactions without requiring you to
ratify neoliberal fantasies about free choice and universal agency or
dominance feminist presumptions that the weaker party is abject. In
this work, we assume that almost everyone has choices, and that al-
most all of those choices are constrained. Absolute dominations are
surely possible, but are not ubiquitous or even frequent. Following
 Conclusion 261


Hale, we see the systems in which surpluses are generated and power
circulated as pervasively coercive, though differentially so, for every-
body.23 Everybody in them is trying hard to restrict the range of mo-
tion of other players and to use law to hold that range narrow. It is the
distribution, not the fact that it is produced through pervasive coer-
cion and counter-coercion, that provides the nexus of moral concern.
­
One thing that classic liberal analysis leaves out — as did Ricardo

 
 ­
and Marx — but is crucial in any critical realist practice is the possibil-
 
 ­
ity that some or all of the players will actually break the rules.24 The
prostitutes in a legal brothel — bound by contracts to work in exchange
 
 ­
for pay and unprotected by legal unionization — can nevertheless go on

 
 ­
strike and force the madam to provide more security or to share more
of the take with them. Tenants angry about the landlord’s threats to
exercise his legal rights can burn the tenement down.25 The police can
look the other way or take bribes.
Or the players can turn rules that look, on the face of it, like a prob-
lem for them into bargaining advantages. Legal rules in action are not
simple; for instance, not only do duties often follow rights, but players
can “flip” rights into duties and vice versa. Among Amanda Chong’s
migrant brides in Singapore, for instance, one woman turned her
husband’s sex-discriminatory monopoly over marital property rights,
­
with its corresponding duty to pay the household bills, to her advantage
by being a bad homemaker wife. It was her job to keep the books, and
she stopped paying his monthly bills. Her husband promptly fell into
debt, her bargaining power soared proportionately, and he had to drop
his mistress to both save money and restore domestic peace.
Both illegality and perverse benefits converge when trafficking en-
forcement pushes prostitution underground, where it repeatedly morphs
into a more dangerous and smaller enterprise that is also more profit-
able for some of the players. This is surely what Elizabeth Bernstein
shows in her ethnographic comparison of end-demand regulation in
­
Sweden and legalization in the Netherlands.26 The Swedish sex market
shrank, went underground, became concentrated with illegal immi-
grant workers, and became less safe for those workers. But making pros-
titution legal also distributes costs as well as benefits. As Bernstein also
shows, legalization in the Netherlands brought regulation, which not
only put sex workers onto social insurance but also priced small pros-
titution enterprises out of the market. Be prepared for paradoxes.
262 Conclusion

For sex workers at any given moment in the struggle, the key back-
ground rules can be landlord/tenant law, land use law, public transpor-
tation, access to social security, health care, banking and credit, a
minor’s incapacity to contract, social media facilities, and immigration
law—even the rules governing the job they would be doing if they were
 
 ­
not doing this one—domestic labor perhaps, or work in a kitchen or
nursing home. Can the sex worker get a driver’s license? The answer to
that may lie in their probationary status with the misdemeanor court.
Can he, she, or they get identification papers that match his, her, or
their gender? The answer to that may depend on a struggle in the court
of last appeal. Can he, she, or they use online communications to work
directly with customers, and eliminate the madam and the pimp—and

 
 ­
their background rules—entirely? The answer to that may lie in the bar-
 
 ­
gaining power struggle over Backpage between dominance feminists
and Craigslist. Pay attention to the permissions that emerge from the
definitional limits of the law and from nonenforcement: the sex worker
is not entitled to them—in Hohfeldian terms they are “no-rights”—but
 
 ­
­
 
 ­
they are nevertheless legal permissions to act.27 Do the same for the sex
worker’s clients and for any brokers he, she, or they works with.
Now, pull it all together: who is playing, with what tools, including
what legal background rules, in pursuit of what fragment of the sur-
plus, at what cost, and with what success? You can never describe it all.
You have to typify. Underground markets will systematically defeat
precision and even vague hunches. Your so-called information is only
­
as good as the ideologies you used to make and collect it. But if you
put your description forward modestly and with the appropriate pro-
visos, you can do a lot better to assess a situation by describing its
distributional consequences than by uttering slogans like “end de-
mand” and “free the slaves.”

Imagining It Otherwise
By now the advantages of postponing ought should be coming into
view. It makes no sense to be against the deployment of power in these
systems: everyone is doing it. And it makes no sense to determine in
advance who is winning and who is losing until you know who is
playing, with what tools, in pursuit of what fragment of the surplus, at
what cost, and with what success.
 Conclusion 263


It is also premature to decide who you are for until you have some
sense of the distribution. It is not just unintended consequences,
though that is a very important form of surprise in this process. You
can acknowledge that rules that have been good for middle-class

­
women in developed economies might backfire for poor women there
or for women being entrepreneurialized in the developing world. The
analytic can also shift your object of moral concern. You can think
that the entrepreneurialization of women is good or bad because it em-
powers or exploits them, but find yourself worrying with new inten-
sity that the fates of the men they love are rapidly declining.
Doing a distributional analysis discloses the large and tiny rules,
buried deep in the background assumptions of a liberal legal order, that
condition bargaining power. As a result, many more law reform tar-
gets come into view. For Hale, this meant that law reform projects that
redistributed the social powers endowed by the rules of property be-
came fair game. For example, the control that an industry accumu-
lates to determine the activities of its workers can be distributed
elsewhere:

To take this control by law from the owner of the plant and to vest it in
public officials or in a guild or in a union organization elected by the
workers would neither add to nor subtract from the constraint which
is exercised with the aid of the government. It would merely transfer
the constraining power to a different set of persons. It might result in
greater or in less actual power of free initiative all round, but this sort
of freedom is not to be confused with the “freedom” which means ab-
sence of governmental constraint.28

Doing a distributional analysis thus opens up for challenge the deep

background assumptions built into the rules of the game.
The options for change are equivocal in their operation, of course: you
can do harm as well as good by keeping them as well as by changing
them. Many small rules are softer targets than the highly ideologized
foreground rules, where doctrinal impasses—war, or truce in an ongo-
 
 ­
ing war — sediment themselves into seemingly permanent patterns.
 
 ­
They can be ticked in various directions, to influence various distri-
butions, in incremental and major ways; small changes can concatenate
into so many ever-larger ones until the overall system is transformed,
­
264 Conclusion

for good or for ill.29 It can be more revolutionary to work on the small
rules than to issue thumping denunciations.
But summing up the distributional analysis is where ought really
begins. By that we do not mean deontological morality deducing com-
mands from principles of human dignity. We mean increasing the
equality of the distribution of income and other social goods in a world
where inequality is both vast and growing. We mean redistribution by
changing the rules of the game. We are, in short, leftists.
Doing a distributional analysis can be good for feminists confront-
ing the myriad dilemmas posed by the entrance of feminism into gov-
ernance. Some forms of feminism now have some control over some
rules and some enforcement decisions: denying this strikes us as irre-
sponsible. But affirming it does not require feminists to assume they
are somehow to be glorified for everything good and blamed for every-
thing bad that happens in the wake of their reforms. The users of the
legal system play a huge role in determining the outcomes, as do, of
course, the liberalism, neoliberalism, religious conservatism, and car-
ceralism with which so many feminist reforms have gone to bed. Femi-
nists following the surplus can reassess their achievements, repoliticize
internal feminist debates about them, invent and tailor new goals, and
live as responsible governors. In Max Weber’s term, they can opt out
of an ethic of absolute ends and adopt an ethic of responsibility.30
Deciding how and even where to do this is a daunting task. Take
Shamir’s story of how Israel transformed its prostitution market in
response to U.S. anti-trafficking reputational sanctions. By the conclu-
­
sion of this campaign, the Eastern European migrant sex workers were
all repatriated, the shelters were mostly empty, and the prostitution
segment of the sex sector was back in the hands of Israeli sex workers.
Good or bad? Hard to say. It is possible that the migrant workers were
better off now — but they could also be much worse off. It is possible
 
 ­
that the Israeli sex workers demand, and get, a safer, more remunera-
tive operation than the system needed to provide the migrants. Is that
good, in that sex work is now more profitable for them, or bad, in that
it is more attractive than ever despite its social stigma and aspects of
illegality? It is possible that Israel’s catastrophic love affair with bor-
der control has been intensified by this “success” story. Our sense is
that morals alone will not help you pick among these visions of the
outcome, that you need politics as well, and that feminist politics alone
 Conclusion 265

will not get you all the way to a decision. But an ethic of responsibility
can directly confront, rather than blindspot, the challenge of that
indeterminacy.
Doing a distributional analysis can pave the way for engagement.
But it makes enchanted engagement much harder. Now you can see
that to help your friends you might have to hurt some group of even
less well-off players; that not all players enjoying more bargaining
­
power than your friends are evil dominators (some of them may have
merely a different, slightly higher-ranking but similarly precarious

­
perch in an asymmetric game); and that you can befriend a group
without completely understanding its own investment in the game and
misconstrue what the people in it think is their best outcome. You can-
not intervene while keeping your hands clean.
The temptation at this point is to wait for more information or work
harder on your justifications. These can be exactly the right reactions
to moments of doubt, uncertainty, and ignorance. But if you wait for-
ever for these blessings, you run the risk that they will never fully ma-
terialize. Indeed, they are very unlikely to. Your information is not
merely partial; its very constitution as information is an achievement
of ideological precommitments that are invisibly baked into the facts.
You are not a god of knowledge capable of rising entirely above this
enmeshment of knowledge with power. And the minute you think
your justifications fully warrant what you plan to do, you become a
danger to society: you are now a zealot who will stop at nothing.
We believe, instead, that the information and the justifications are
indeterminate not only for those who admit it but also for those who
do not, and that it is more responsible to admit it. You have to leap to
decide. The great goal we have for GF is that its participants take this
leap while maintaining a critical analysis of it. We envision feminists
as decisionists, both as actors and as analysts:

If the decisionist is a responsible actor, and time has run out at the same
time “the law” has, then she accepts that she will just have to “do it” on
the basis of intuition rather than with a “warrant.” The decisionist as
analyst, on the other hand, wants to talk about how we can understand
decisions that are underdetermined by the discourse that is supposed
to guide them. This inquiry into the intelligibility of the indeterminate
can have either a normative or a descriptive focus — either on making
 
 ­
266 Conclusion

ethical sense of underdetermined action, or figuring out how the exis-
tence of denied lacunae in normative systems modifies their operation
as normative facts (internalized by actors) in the world.31

Whether disenchanted critical engagement takes the form of action

or analysis, it consistently involves making decisions — large and

 
 ­
small — under conditions of indeterminacy. Responsible governance is
 
 ­
not perfect governance; rather, it is critically engaged governance.

Notes
1. Max Weber, “Politics as a Vocation,” in The Vocation Lectures, ed. David


Owen and Tracy B. Strong, trans. Rodney Livingstone (Indianapolis: Hackett Pub-
lishing Company, 2004), 83. For a discussion, see the Preface, xiv–xvi.
2. See, e.g., Duncan Kennedy, “Sexual Abuse, Sexy Dressing, and the Eroticiza-


tion of Domination,” in Sexy Dressing, Etc. (Cambridge, Mass.: Harvard University
Press, 1993): 126–213; Amanda Wei-Zhen Chong, “Migrant Brides in Singapore:
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Women Strategizing within Family, Market, and State,” Harvard Journal of Law and
Gender 37, no. 2 (2014): 331– 405; Prabha Kotiswaran, “Born unto Brothels — Toward
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 ­
a Legal Ethnography of Sex Work in an Indian Red-Light Area,” Law and Social
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Inquiry 33, no. 3 (2008): 579– 629; Benjamin E. Apple, “Mapping Fracking: An Anal-
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ysis of Law, Power, and Regional Distribution in the United States,” Harvard Envi-
ronmental Law Review 38, no. 1 (2014): 217– 44; Hila Shamir, “The State of Care:
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Rethinking the Distributive Effects of Familial Care Policies in Liberal Welfare
States,” American Journal of Comparative Law 58, no. 4 (2010): 953–86; Philomila
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Tsoukala, “Gary Becker, Legal Feminism, and the Costs of Moralizing Care,” Columbia
Journal of Gender and Law 16, no. 2 (2007): 357– 428; Havva G. Guney-Ruebenacker,
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“An Islamic Legal Realist Critique of the Traditional Theory of Slavery, Marriage,
and Divorce in Islamic Law” (S.J.D. diss., Harvard Law School, 2011).
3. For a more thorough theoretical statement than I attempt here, see David


Kennedy, “Law and the Global Dynamics of Distribution,” in A World of Struggle:
How Power, Law, and Expertise Shape Global Political Economy (Princeton, N.J.:
Princeton University Press, 2016), 171–217.
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4. For another, similar effort to present the effort stepwise, see Kennedy, “Struggle:


Toward a Cartography of Engagement,” in A World of Struggle, 54–86.
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5. Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 110, no.


5 (1997): 991–1009 (a centennial reprinting of an address delivered by Justice Holmes
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in 1897 and originally printed in the Harvard Law Review that same year).
6. Karl N. Llewellyn, “Some Realism about Realism — Responding to Dean


 
 ­
Pound,” Harvard Law Review 44, no. 8 (1931): 1222– 64.
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7. Kennedy, “Struggle,” 59.


8. Ibid., 66– 69.


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9. Duncan Kennedy, “Analyzing Distribution: Ricardo, Marx, CLS” (unpub-


lished manuscript, March 12, 2013), Microsoft Word file.
 Conclusion 267

10. Kennedy, “Law and the Global Dynamics of Distribution.”


11. Richard D. Wolff and Stephen A. Resnick, Contending Economic Theories:


Neoclassical, Keynesian, and Marxian (Cambridge, Mass.: MIT Press, 2012), 27–28.

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12. John Stuart Mill, On Liberty (London: J. W. Parker and Son, 1859).


13. Duncan Kennedy, “Three Globalizations of Law and Legal Thought:


1850–2000,” in The New Law and Economic Development: A Critical Appraisal, ed.
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David M. Trubek and Alvaro Santos (Cambridge: Cambridge University Press, 2006),
19–73.
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14. For a discussion, see chapter 2, 28–29.


15. Karl Marx, “On the Jewish Question,” in The Marx-Engels Reader, 2nd ed., ed.


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Robert C. Tucker (New York: W. W. Norton & Company, 1978), 26–52.

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16. Mark Kelman and Gillian Lester, “Ideology and Entitlement,” in Left Legal-


ism / Left Critique, ed. Wendy Brown and Janet Halley (Durham, N.C.: Duke Uni-
versity Press, 2002), 134–77.
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17. Prabha Kotiswaran, “Wives and Whores: Prospects for a Feminist Theory of


Redistribution,” in Sexuality and the Law: Feminist Engagements, ed. Vanessa E.
Munro and Carl F. Stychin (London: Routledge-Cavendish, 2007), 283–303.
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18. Lewis Kornhauser and Robert H. Mnookin, “Bargaining in the Shadow of the


Law: The Case of Divorce,” Yale Law Journal 88, no. 5 (1979): 950–97.

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19. Robert L. Hale, “Coercion and Distribution in a Supposedly Non-coercive


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State,” Political Science Quarterly 38, no. 3 (1923): 470–94.
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20. Lochner v. New York, 198 U.S. 45 (1905).


21. Hale, “Coercion and Distribution,” 470–79.


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22. Ibid., 478.


23. Ibid., 470–94.


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24. Kennedy, “Analyzing Distribution,” 32–33.


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25. Ibid., 34. This is Duncan Kennedy’s example — vividly real in the agricultural


 
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land contracts he describes.
26. Elizabeth Bernstein, “The State, Sexuality, and the Market,” in Temporarily


Yours: Intimacy, Authenticity, and the Commerce of Sex (Chicago: Chicago Univer-
sity Press, 2007): 142- 66.
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27. Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Ap-


plied in Judicial Reasoning,” Yale Law Journal 23, no. 1 (1913): 30.
28. Hale, “Coercion and Distribution,” 478.


29. Kennedy, “Analyzing Distribution,” 39– 43.


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30. Weber, “Politics as a Vocation.”


31. Duncan Kennedy, “A Semiotics of Critique,” Cardozo Law Review 22, no. 4


(2001): 1163. For Kennedy’s discussion of the tradition of decisionism that he derives
from Nietzsche, Schmitt, Sartre, and Camus, see ibid., 1161– 69.
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