Exceptionalism Everywhere: A (Legal) Field Guide to Structural Inequality

In the first two decades of the twenty-first century, American legal scholars have discovered exceptionalism everywhere: family law exceptionalism, tax law exceptionalism, bankruptcy exceptionalism, immigration exceptionalism, criminal law exceptionalism, and more. For several of these fields, the charge is that the field is not operating in accordance with some background conception of “normal” law—legal authority is allocated to the wrong institutions, or institutions are using the wrong methodologies to make legal decisions. In other instances, the challenge is to legal taxonomy itself, a claim that a given legal field is defined by a constructed and contestable category or classification. A survey of these various lines of exceptionalist argument helps illuminate two important dimensions of contemporary legal thought: skepticism toward (or outright abandonment of) classic accounts of the rule of law, and new efforts to understand law as one of the structures that preserves and reinforces inequality.