Week 2 steps back from today’s monopoly crises to examine their doctrinal and theoretical origins. The readings demonstrate that the failings of the current U.S. antitrust and regulatory regimes are part and parcel of a larger neoliberal turn in law—one that has oriented certain legal fields (like contract, property, corporate law, and antitrust) around market efficiency, while relegating questions of political power and inequality solely to the domain of public law (especially constitutional law). The founders of the Law and Political Project call this neoliberal framework the “twentieth-century synthesis.” In its place, these scholars advocate for a “law-and-political-economy (LPE) approach” that centers questions of power, equality, and democracy across the public-private law divide.
The Week 2 syllabus also explores precursors to the LPE approach, including the legal realist and Critical Legal Studies movements. In addition, the readings introduce the Law and Economics movement, which has transformed many areas of law, particularly antitrust and regulation. As readings like Steve Teles’s The Rise of the Conservative Legal Movement and the so-called “Powell Memo” show, the rise of Law and Economics was intimately connected to conservative and corporate efforts to deregulate the economy by shifting legal education, doctrine, and policy. LPE seeks to push back against that shift and imagine alternatives.
The recorded lecture features Amy Kapczynski, who provides an overview of the twentieth-century synthesis and LPE’s major critiques of it. Professor Kapczynski discusses how the twentieth-century synthesis has undermined movements for racial justice, climate justice, and labor rights, among others. She also discusses how neoliberalism has “encased” markets from democratic control and redistribution, deploying the state to serve the interests of capital owners. Further, Professor Kapczynski breaks down the concept of efficiency, eventually reduced to wealth maximization, as it appears in the framework of Law and Economics, and how it sidelines questions of concentrations of power, inequality, and other values besides market values. Professor Kapczynski contrasts those ideas with the LPE approach, which recognizes that there is no such thing as a “natural” market and that law always structures markets—and that engages with the influence of racism, sexism, and colonialism on law and the economy.