More than ten years ago now, Emma Coleman Jordan of Georgetown Law Center called me on the phone and invited me to join her in what she laughingly called an act of “academic imperialism.” She wanted us to collaborate in assembling a casebook – the first in the United States legal education market, we believed – on “economic justice.”
The target of our imperialism was a bifurcation within legal education. Emma and I, at Georgetown and Berkeley respectively, saw two distinct groups of students in our classes. Social justice students took courses on critical race theory, constitutional equal protection, and civil rights, while business-minded students focused courses related to economics, like securities regulation, international trade law, business associations, tax, and banking.
One effect of this divide was that our politically progressive students tended to have little understanding of how markets and market-related institutions work. Instead, they found themselves limited to a moral language under which, for example, corporations could be denounced as “evil” but corporate power and its workings remained opaque. A second, more subtle effect of this divide was to impoverish our teaching about structural inequality. The infamous “public-private split” in legal doctrine reinforces the popular belief that market power represents freedom while government embodies coercion. A similar split, insidious in a different way, limits anti-discrimination law to individual and interpersonal relations: the “intent requirement” in constitutional and statutory law protects institutional and structural subordination. At the same time, business law courses and “law and economics” seminars seldom engage with race, gender, or other forms of subordination – save for a day or two on “corporate social responsibility.” Our imperial project, then, sought to pull down the walls, disrupting both the citadel of law and economics and the cloister of critical race theory.
Though we didn’t succeed at building an empire with our book, we did develop an approach to teaching law and political economy that LPE teachers and scholars can use today. In a series of four posts, I’ll outline that approach using Keilee Fant v. City of Ferguson, Missouri, a class action filed in federal court in the Eastern District of Missouri in 2015. In my Economic Justice classes, I use the case to teach students about ways in which structural inequality in the United States is produced by both racial domination and capitalist exploitation, and what this inequality looks like in the age of “neoliberalism.” I also use it to teach students about how legal doctrine shields this structural inequality from effective challenge, giving them a perspective on the intellectual apartheid of legal doctrine and legal education. In this first post, I explain how I use the complaint in Fant to frame a discussion of law, political economy, and the “slow violence” of the criminal justice system. Subsequent posts will discuss how I use the case to teach students to connect racial and economic inequality to the concepts of neoliberalism, legal geographies, and municipal finance. Each post presents a different way to advance the LPE project in the classroom.
In her book Golden Gulag, the scholar Ruth Wilson Gilmore famously defines racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” The complaint in Keilee Fant v. City of Ferguson, Missouri makes Gilmore’s theory concrete, presenting a way to teach law students how the state helps produce racial and economic inequality together. The complaint opens with the story of Keilee Fant, at the time a 37-year-old African American single mother who had been working as a certified nurse’s assistant on and off for nearly twenty years. According to the complaint, “In the past two decades, the City of Ferguson has jailed Ms. Fant more than a dozen times for her inability to make monetary payments on old traffic tickets.” It effectively conveys the absurd, grinding details of the gauntlet faced by Fant and other poor, mostly black people while driving through the northern St. Louis suburbs. Here is a taste:
“Ms. Fant was arrested while taking her children to school in October 2013. She was taken to jail in the City of Jennings because of old traffic tickets in that city, and she was told by Jennings jail staff that she would not be released unless she paid $300. She informed jail staff that she could not afford to pay [that amount] * * *. After three days in jail, Jennings let her out for free.
“After Ms. Fant was ‘released’ from the Jennings jail, the City of Jennings kept Ms. Fant in its jail until her family could pay the several hundred dollars required for release by the City of Bellefontaine Neighbors. Bellefontaine Neighbors is so small that it does not have its own jail. Instead, it paid the City of Jennings to confine its inmate debtors in the Jennings jail.
“Ms. Fant was then sent to the custody of Saint Louis County for unpaid tickets, where she was kept for three days before being ‘released’ from County custody.
“Although Ms. Fant was ‘released,’ she was [still] not set free. Ms. Fant languished eight more days in the County jail because she could not afford the release amounts for unpaid [parking] tickets in two other cities too small to have their own jail: the City of Normandy and the City of Beverly Hills.
“After eight days, Ms. Fant was taken to court in the City of Maryland Heights, where the judge ‘released’ her for free.
“Nonetheless, Ms. Fant was still not free. Instead, she was transported to Ferguson. When she arrived in Ferguson, City jail staff told her that her release amount was $1,400. They told her that she would be held indefinitely until she paid it. After three days, Ferguson jail staff came and informed her that they had decided to let her out for free.
“During her repeated and indefinite jailings because of her inability to pay, Ms. Fant was fired from several jobs because of absences. She was indigent and depending on food stamps to supplement her income to feed her children.
“Similar experiences happened to Ms. Fant more than a dozen times in the past two decades, including one occasion in which she was held in jail by the City of Ferguson for nearly 50 days without a toothbrush, toothpaste, soap, shower or change of clothes for unpaid traffic tickets because she could not afford to buy her release. During that time, Ms. Fant missed her father’s funeral. * * *
“Ms. Fant was never provided an attorney by the City or brought to court while in custody in 2013 or 2014.
“Ms. Fant still owes significant debts to the City. She is frightened that the City will again jail her indefinitely until she and her family can pay enough to secure her release.”
By 2016, the litigation in Fant v Ferguson had triumphantly concluded with a $4.7 million settlement for those jailed for unpaid traffic fines in Jennings. Keilee Fant, however, was homeless, having been evicted from her north St. Louis County house.
One way to understand Fant v Ferguson is through the lens of criminal justice as a system for the control and risk management of valueless black and brown bodies. The Black Lives Matter movement – which took root in Ferguson after the 2012 killing of Michael Brown there – has built on the insights of Michelle Alexander’s The New Jim Crow and made visceral the litany of names, the cell phone videos of violent assaults on unarmed people, and the predictable decisions not to prosecute, the acquittals, the hung juries. If death at the hands of police officers or self-appointed vigilantes represents the most spectacular expression of the proposition that black and brown lives don’t matter in America, Fant represents a less visible but no less lethal, kind of violence – what in another context Rob Nixon calls “slow violence”.
Nixon uses the term to refer to environmental catastrophes that emerge over generations: the nuclear testing “sacrifice zone” in the Marshall Islands that produced birth defects generations later in the local community; the slow destruction of the Ogoni people’s farmland and fishing waters by European and American oil conglomerates in cooperation with the Nigerian government. We might borrow the term, however, to recognize the way that racial discrimination and poverty injure people not only suddenly with a bullet or a stun gun, but also through the slow accretion of insults that cumulatively act to lower life expectancy and produce ill health.
The New York Times recently published a story on research demonstrating that today, “Black infants in America are now more than twice as likely to die as white infants — 11.3 per 1,000 black babies, compared with 4.9 per 1,000 white babies, according to the most recent government data — a racial disparity that is actually wider than in 1850, 15 years before the end of slavery, when most black women were considered chattel.” Importantly, this gap is not generated simply by poverty; it remains after controlling for income and education. As the Times wrote, “For black women in America, an inescapable atmosphere of societal and systemic racism can create a kind of toxic physiological stress, resulting in conditions — including hypertension and pre-eclampsia — that lead directly to higher rates of infant and maternal death.” According to the complaint in Fant, officials of the Saint Louis County jail told inmates who could not afford to pay for phone calls or buy food that they could call their families and receive candy if they did the jail laundry without monetary compensation. The “inescapable atmosphere of societal and systemic racism” is a form of environmental degradation that endangers lives and health slowly.
If Trayvon Martin, Michael Brown, Eric Garner, Alberta Spruill, Rekia Boyd, Shantel Davis, Shelley Frey, Kayla Moore, Kyam Livingston, Miriam Carey, Michelle Cusseaux, Tanisha Anderson, Stephon Clark, and the many other black men and women killed by the police represent the “fast,” spectacular form of racism, Keilee Fant’s infuriating trips from jail to jail, accompanied at every step by little humiliations, represent the slow form. Both forms of violence, fast and slow, mobilize state power against black and brown people in the name of security. And both are only ambivalently sanctioned by law.