How Traditional Legal Rhetoric’s Myth of Neutrality Sustains Capitalism Article
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Recommended Citation
Elizabeth Berenguer, How Traditional Legal Rhetoric’s Myth of Neutrality Sustains Capitalism, 101 Denv. L. Rev. 721 (2024)Clicking on the button will copy the full recommended citation.
Through the lens of critical and comparative rhetoric, this Article examines how traditional legal rhetoric-the dominant analytical framework employed in the United States legal system-sustains capitalism and preserves inequities, such as financial precarity. This Article identifies the features that traditional legal rhetoric shares with the free capitalist market and then uses those features as an analytical framework to examine two cases that align with the theme of this Symposium on financial precarity and late capitalism: Bank of America v. Caulkett and Citizens United v. FEC. Comparing these two cases, the Court uses the same analytical tools of traditional legal rhetoric, albeit in contradictory ways, to reach outcomes that align with market values at the expense of the individual. More importantly, in both cases, the Court presents traditional legal reasoning as an objective, rational, unbiased, and neutral analytical framework, even though it is not actually objective, rational, unbiased, or neutral.
This myth that traditional legal reasoning is objective, rational, unbiased, and neutral aligns with the near-identical myth that the market is an objective, rational, unbiased, and neutral place where ransactions occur between individuals and entities who share similar bargaining power and play on a level field. Through these aligned myths, traditional legal rhetoric is essential to sustaining the free-market capitalism experiment. More importantly, traditional legal rhetoric cannot ever satisfactorily address the
inequities of the marketplace like financial precarity because traditional legal rhetoric was never intended to be egalitarian. Thus, in order to truly begin solving the problems of capitalism, advocates must understand how traditional legal rhetoric creates inequities and challenge the form and substance
of traditional legal rhetoric using other rhetorics, such as African Diasporic, Asian Diasporic, Indigenous, and Latine rhetorics. These insurrectionary
rhetorics establish frameworks for challenging dominant imperialist/colonialist power, centering community, and solving the real problems of inequity created by traditional legal rhetoric.
