Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis.

• Author: Britton-Purdy, Jedediah

FEATURE CONTENTS INTRODUCTION 1786 I. THE TWENTIETH-CENTURY SYNTHESIS 1794 A. The Autonomy of the Economy 1795 B. The Law of the Economy Remade 1801 C. The Twentieth-Century Synthesis Comes to Maturity 1806 D. The Putative Liberal Appeal of the Synthesis 1813 E. The Fragile Success of the Synthesis in Historical and Political Context 1815 II. CRITICAL QUESTIONS AND REORIENTATIONS 1818 A. From Efficiency to Power 1818 B. From Neutrality to Equality 1823 C. From Antipolitics to Democracy 1827 CONCLUSION 1832 INTRODUCTION

We live in a time of rolling political, economic, social, and ecological crises. In the United States and across the world, income inequality has returned to the levels of the Gilded Age. (1) Conventional monetary policy seems unable to generate the stable and shared growth that previous generations of economists and policymakers took for granted. (2) Factors such as the weakness of labor unions, (3) the increasing concentration of industry, (4) and the degradation of social insurance schemes (5) have contributed to inequality and intensified precarity. (6) Markers of despair, including early death, are on the rise for young and middle-aged adults in the United States. (7)

This economic crisis is creating a crisis of care and social reproduction. (8) Low wages mean longer work hours, high rents mean longer commutes, and unaffordable childcare and weakening social-insurance schemes mean heavier burdens on caregivers. (9) These trends are intensified, particularly among the poor and people of color, by mass incarceration, (10) misdemeanor-control policies, (11) penal welfare, (12) and penal debt. (13) Racialized violence and structural inequity pervade the American social order, even the physical structure of our cities, and foster unequal vulnerability to environmental problems, economic exploitation, and physical insecurity. (14)

Climate change threatens to exacerbate all of these crises. It challenges our way of life so fundamentally that it is hard to adequately conceptualize the potential harms in relation to current institutions and intellectual frameworks. (15) The model of economic growth and resource extraction at the heart of today's capitalism is on a collision course with human existence as we have known it. (16) Even short of widespread catastrophe, the costs of climate disruption will fall on those least able to bear them. (17)

The political response to these problems has proven insufficient. Our democratic structures of decision-making are hollowed out. (18) Government enacts the policy preferences of the rich over those of the majority (19): political scientists studying the problem have deemed money itself "the root of representational inequality." (20) Citizen frustration with this intertwined and increasing concentration of economic and political power is visible on the right in the rise of the Tea Party and the election of Donald Trump and on the left in social movements such as Occupy and Black Lives Matter and in growing calls by prominent parts of the Democratic Party for socialism or renewed social democracy. All of these movements express deep dissatisfaction with political elites. They manifest ordinary people's anger at their limited influence over both their individual lives and our collective political future.

Together, these developments pose a deep challenge to prevailing models of legal thought and scholarship, which have been profoundly shaped by a misconception of the relationship between politics and the economy. That misconception inhibits our ability to address urgent problems of distribution, democracy and ecology. Indeed, legal discourse has helped consolidate these problems by serving as a powerful authorizing terrain for a set of "neoliberal" (21) political projects that have fueled these same crises.

Although a full defense of these claims will take many pages, any first-year law student can appreciate the problem's basic contours. She may begin her education imagining it as an invitation to ask fundamental questions concerning justice and power. But she is likely to "learn" quicldy that serious legal thought in areas such as contracts and property prizes a certain version of efficiency over all else. Meanwhile, constitutional law advances visions of equality and liberty that leave many forms of unequal power and vulnerability unchallenged or even enshrined as constitutionally fundamental. Upper-level courses such as antitrust and antidiscrimination law extend and consolidate the same lessons. To enter law school today--particularly the elite law schools that send the most students into powerful legal and political positions--is to join a conversation shaped by the depoliticization and naturalization of market-mediated inequalities. (22)

The sum of these parts is a division of labor among legal fields that we dub the "Twentieth-Century Synthesis." (23) It rests upon two interrelated developments. First, some legal subfields have been reoriented around versions of economic "efficiency." These are the fields in which law and economics has become dominant and which are generally considered to be "about the market": contracts, property, antitrust, intellectual property, corporate law, and so on. Here, efficiency analysis anchors both the descriptive framing and the normative assessment of law. Efficiency itself is typically defined--in practice if not always in theory--as a land of "wealth maximization" that works to structurally prioritize the interests of those with more resources. (24) This methodological approach offers no framework for thinking systematically about the interrelationships between political and economic power. Its commitment to summative conceptions provides it no means to analyze, let alone counter, contemporary concentrations of wealth and power, except insofar as they interfere with overall efficiency. (25)

The second move has redefined so-called political and public legal fields, centrally constitutional law. Here, questions of coercion and legitimacy remain central but are delimited to exclude economic power and other structural forms of inequality. Scrutiny in these fields tends to be restricted to narrowly defined differential treatment of individuals, especially by the state. As the economy was read out of working conceptions of constitutional equality, it was read back into constitutional law to enshrine certain forms of economic liberty through developments in free-speech law. Meanwhile, more diffusely, pessimism about the possibilities of politics and the effectiveness of the state rippled through our constitutional imaginary and doctrine, shaped by ways of thinking that transposed market logics onto politics and political subjects. The result is a vision of constitutional equality and liberty that enshrines structural inequality and economic power. (26)

Altogether, the Synthesis has muted problems of distribution and power throughout public and private law. As a result, the economy has receded as a subject in fields now reconstituted as fundamentally political, and politics has receded as a subject in fields reconstituted as fundamentally economic.

A word is in order about how we envision the contributions of this Feature --a sort of "How to Use This Argument" manual. We seek to map the broad sweep of legal argument, interpret a professional culture, and bridge scholarship and doctrine, across decades and across a variety of substantive fields. To everything we say there will be counterexamples. We have many of them in mind ourselves. There are also many areas of law we do not discuss. We expect that readers will be able to identify many confirming examples and details from their own fields, some outside our knowledge, others simply beyond the scope of our drafting.

With all due caveats, we believe this argument captures essential shifts and stakes that have constituted the legal era of the last several decades. The Twentieth-Century Synthesis makes up the air we breathe, and is the only disciplinary atmosphere younger scholars and lawyers have known. This Synthesis was always contested, often passionately, and many tools to contest it have been built over decades. We note some of our precedents, but they are so many and our debt is so great that we lack the space here to acknowledge each individually. Having said that, we also believe that--at a moment when structural and political shifts have reopened essential questions about the meaning of liberty and equality, the relationship between the state and the economy, and the interactions between capitalism and democracy--a reassessment of legal scholarship and its tasks is in order.

In this moment, it is newly possible to reorganize the fundamental orientations of legal scholarship. The conditions that made the regnant legal culture halfway plausible to so many people have shifted. Its costs are now clearer. We propose a statement of the current stakes and offer some preliminary ideas about how we might best reconstruct legal scholarship to address the fundamental challenges of our time. We must replace the Twentieth-Century Synthesis with a different framework for legal thought. At the core of this reconstruction is a renewed commitment to questions of political economy. With others, we have thus begun to practice a scholarship of "law and political economy" (LPE), rooted in a shared set of insights, concerns, and commitments. (27)

The term "political economy" is historically variable and contested. We do not mean the "political economy" analysis of institutions and policies as practiced in mainstream economics departments, which turns on the application of rational-choice models to government actors or institutions. (28) Rather, we intend the older and more foundational usage familiar to nineteenth-century audiences, which persisted in traditions of "radical" political economy until a few decades ago. This political economy investigates the relation of politics...