Yesterday, we provided a list of all the posts we published in 2021. Today and tomorrow, we do a bit of curation, offering a selection of our personal favorites.
Our Political Economy, Political Technology symposium, featuring posts from Jason Jackson, Salome Viljoen, Ben Green, and Jake Goldenfein, was and is a fantastic introduction to thinking about the relationship between law, political economy, and different forms of algorithmic or computational governance. They highlight the close and complex relationship between neoliberal economic thinking and what Viljoen calls “neoliberal computational logic,” and, taken together, they amount to a call to critique the latter with the same intellectual urgency as the former.
Public-Washing the Private Interest in International Investment Law by the brilliant Alessandra Arcuri argues that international investment law has, in effect, drawn parasitically on public law doctrines, public international lawyers, and the very idea of the “public interest” to advance private interests. In doing so, this body of law has hollowed out the spaces where more authentic public interests are formulated—“numbing the agency of real people, taking away their voice and rights.” The piece travels a great distance in a short time, moving from ICJ judges’ participation in the ISDS arbitration system to a critique of the investment treaty regime to a defense of the “situated knowledge” that is aggregated in the democratic public sphere. It’s worth a read or three.
It’s hard—sometimes it seems impossible—to think constructively and progressively about the First Amendment from within the bounds of existing doctrine. Genevieve Lakier and Nelson Tebbe’s effort to do so in their After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment is therefore especially commendable. The piece attempts to draw from cases like Marsh, Associated Press, and Red Lion a vision of the First Amendment that can accommodate the challenges of “private control of the mass public sphere” without simply extending the full panoply of First Amendment doctrines to private actors. Suitable for all who don’t want “to have to choose between John Roberts and Mark Zuckerberg as the guardians of democracy.” Which is to say: suitable for all.
I’m sure I won’t be the only one to boost this piece, but this summer’s Where is the Political Economy? by Angela Harris, Amy Kapczynski, and Noah Zatz deserves to be revisited again and again. It’s the best type of self-critique: a piece that marks the way toward new and sharper research questions even as it problematizes the way LPE scholarship has tended to select and define its objects and field of study.
Politics In, Of, and Through the Legal Academy (Part 1 and Part 2): Just months after Trump issued his anti-Critical Race Theory executive order, Amna Akbar sat down with core CRT theorist Mari Matsuda to reflect on building radical, anti-racist legal frameworks during reactionary times. There’s so much here—a mini-oral history of Matsuda’s career, a frank discussion of the sometimes-fraught relationships between “marginalized intellectual formations” (i.e. Critical Legal Studies and CRT), and Matsuda’s take on how to act in coalition and solidarity with communities outside your own (which includes an “obligation to not be stupid”). It’s a fascinating conversation between two incisive scholars on race and law. It’s also very much worth returning to after a year of distortions of CRT on the national stage.
Symposium on Universal Basic Income: My favorite symposium of the year, the UBI series is a microcosm of LPE themes and methods. In a moment where UBI has suddenly been taken seriously as a mainstream policy proposal, each contributor took up a unique problem or possibility embedded in its realization. The series offers intensely skeptical takes on UBI as a means of remedying racial and economic subordination, as well as aspirational visions of the role it could play in a more just society, usually all in the same post.
Market-Based Law Development by Kathryn A. Sabbeth: This incredible synthesis on the way market design shapes law development repeatedly broke the spell of my law school classes this year. Law schools reinforce the focus on what Sabbeth calls “elite fora,” by relentlessly adhering to the case method and by funneling high-performing graduates into federal clerkships or big law firms. Inside many of our classrooms, especially during 1L, we hardly account for how the allocation of legal services according to wealth renders most of what we learn meaningless for poor people in state civil courts (due to the “de-legalization of lower status courts”). Sabbeth tackles this reality from the perspective of an advocate and an educator, encouraging the legal academy to come to grips with these dynamics directly rather than turning away in shame or disinterest.
Law and Political Economy: A (Very) Brief Field Guide for 1Ls by Sam Aber and Caroline Parker. Nominally directed at law students, this post is appropriate for readers of all ages. As a newcomer to the Blog, I understood LPE primarily as a set of normative commitments (e.g., to substantive conceptions of freedom and equality) and conceptual commitments (e.g., about the relationship between the state and the economy). Sam and Caroline’s insightful essay helped broaden my understanding of LPE as a critical approach to law; it also helped me appreciate how this approach can be understood as a response to the prevailing pedagogy in law schools (what they identify as “1L’s worst intellectual depredations”). Along with the posts on their recommended reading list, this essay provides a great starting point for one’s exploration of the LPE cinematic universe (aka, the Blog).
Let’s Politicize Cost-Benefit Analysis by Beth Popp Berman. Our symposium on Cost-Benefit Analysis highlighted several important shortcomings of regulatory CBA—from its basic inability to quantify the benefits of regulation to its disregard for equality and future generations. Berman’s post took aim at a slightly different, and, to my mind, more difficult problem to address: the asymmetry between liberals, who have generally focused their energies on producing the most morally defensible analysis, and conservatives, who have treated CBA as a means of advancing more fundamental, political ends. While I’m not sure that I agree with Berman’s proposed solution—that liberals take a page out of the conservative playbook—her diagnosis of CBA’s conservative drift over the past few decades presents a serious challenge to progressive reform efforts.
The Bondholders’ Veto: Fiscal Federalism and Local Democracy by Brian Highsmith. Like many LPE readers, I will remember fall 2021 as the season of municipal debt. Our symposium on The Bonds of Inequality by Destin Jenkins—a collaboration with the fine folks at Just Money—contained several posts that have stayed with me, including David Stein and Abbye Atkinson’s respective reflections on the role that the federal government has and might play with respect to municipal debt. What I loved about Brian Highsmith’s post was how it placed Jenkins’ argument within a broader framework—identifying the perils of municipal debt as merely one example of a general dynamic that results from our distinctive system of fiscal federalism. Seen in this light, the power of the bondholder is continuous with the power of wealthy residents and public companies, all of whom possess the power to deprive cities of much-needed revenue. Highsmith’s analysis makes plain that, without redistribution across jurisdictions, local democratic control can do little to ensure the adequate provision of public goods.