Adam Davidson (The University of Chicago Law School) has posted Solving Baseline Problems from Below (Indiana Law Journal) on SSRN. Here is the abstract:
Baselines—assumed facts and ideas against which we act—are everywhere in both law and society. As scholars have long recognized, however, not all of these baselines are harmless. Because of their often unspoken, invisible nature, they can appear natural or immutable and so shape our behavior without our realizing it. Earlier work has shown how baselines have set the course of legal issues as wide-ranging as abortion and affirmative action.
What has been absent from the literature is a recognition that because the problem of baselines is trans-substantive, so too might be the tools to address them. This Article argues that to resolve these baseline problems, we must act “from below.” Empowering disempowered and oppressed people allows us not only to uncover the pernicious baselines that would be invisible from a top-down perspective, but to shift those baselines in more egalitarian directions. By analyzing the problem of baselines in the history and present of involuntary servitude, this Article develops tools for recognizing and shifting baselines. It argues that by combining the insights from this history with work developing the Marxian theory of ideology, we can recognize what makes a baseline troublesome and how we might change it.
Finally, recognizing the trans-substantive nature of these tools, it uses the tools developed in the context of involuntary servitude to analyze how baselines, including implicit and explicit claims that the law was being shifted “from below,” have shaped affirmative action. In doing so, it helps to explain several perplexing parts of the Supreme Court’s recent affirmative action jurisprudence; shows how that jurisprudence quickly spread from affirmative action in higher education to a broad attack on diversity, equity, and inclusion; and highlights not only how baselines are shifted, but who shifts them.
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Lawrence Solum