Call for Papers: “Law and Political Economy: Democracy After Neoliberalism”
Over the past several years, a growing group of legal scholars have begun to center questions of “law and political economy” as part of a deliberate effort to enable a critical transformation in legal thought. Joined by the insight that the “the economy” cannot be separated from questions of power, distribution, and democracy, these scholars have advanced new conceptions of antitrust, constitutional law, criminal law, labor law, intellectual property, international trade, and other areas that begin to spell out what it means to reunite what decades of legal scholarship and governance have kept apart. In so doing, these scholars have highlighted law’s role in the perpetuation of racial and gender injustice, the devaluation of social and ecological reproduction, and the violence of the carceral state under capitalism. They have also sought to offer alternative visions for law’s role and concrete legal reforms designed to move beyond neoliberalism and toward a genuinely responsive, egalitarian democracy, with critical attention to the need for power and movement-building as part of any such transformation. There is still, however, much work to be done to map the path of this new scholarly initiative.
The Law and Political Economy (LPE) Project’s inaugural conference, to be held April 3rd & 4th, 2020 at Yale Law School, will be an opportunity for LPE scholars to come together to identify and develop pressing questions for law and political economy as a movement, and for the current political moment. Many of us already gather in generative sub-field conversations, so rather than reproduce conversations happening elsewhere and convening panels by topic (“labor,” “trade,” “criminal law”), we hope to organize panels to surface critical analytic questions that must be answered if we are to dislodge the status quo in legal thought. This aim is ambitious, so what follows is longer than the usual CFP. Please see this as an invitation to connect our work through productive lines of critique. Challenge or develop the prompts further as you see fit.
In hopes of fostering a more open dialogue, we welcome proposals for traditional legal scholarship (law review works-in-progress), as well as shorter pieces (of about 4000-5000 words that might be more suitable for online “forum” publication or other non-law review formats) addressing these difficult questions. In addition to proposals for individual papers (which will be placed onto panels), we also welcome proposals for fully formed panels. Drafts of all papers must be made available/circulated to all participants two weeks prior to the conference. Please submit proposals of no more than a page, clearly indicating whether for an article-in-progress or a shorter piece, to Sarah Harwood at [email protected] by September 15, 2019.
The LPE Project will ensure that cost is not a barrier to participation for all selected panelists. There will not be a conference fee. We will cover all participants’ hotel accommodations. We will also cover travel expenses for anyone without sufficient funding from a home institution.
Identifying Key Cross-Cutting Questions:
We hope that this conference will provide an opportunity to come together and wrestle with some of the difficult questions for law and political economy and for the political moment, as well as an opportunity to include new voices in the conversation. To support this more open conversation, the conference will be a combination of traditional legal scholarship and shorter political and theoretical engagements, in addition to a series of debates or salons. In an attempt to encompass the variety and breadth of the cross-cutting issues related to LPE’s commitment to moving beyond neoliberalism, we have laid out five of these questions in more detail:
1. How must politics govern the economy for democracy to be real? One purported appeal of the separation of the economy and politics is that elite or technocratic governance avoids the “messiness” or partiality of the political process. This notion is reflected in the policymaking apparatus in, for example, cost-benefit analysis, the delegation to bodies like the Fed, the entrenchment of market entitlements under the guise of First Amendment liberties, the encasement of private law rights in international law, and the exclusion of ostensibly partisan concerns (reproduction, state violence) from the realm of the “economic.” If, by contrast, law and political economy recognizes that we have an unavoidably political and normatively-laden economic policy regime that must be democratically controlled and legitimated, how can we understand what the process of democratization of the economy might look like? How would we know a democratized economy? What institutions, processes, and modalities of control are key to its creation?
Possible questions here include:
- Can the tools and methods of capitalism be repurposed? How far can the logic of competition go to democratize the economy? Could a revised version of cost-benefit analysis have a place in a democratized economy, and if not, what mechanisms of accountability should take its place?
- How should we govern production, exchange, and consumption, once we recognize the partiality inherent in the current market construction? Does the answer imply any necessary arrangements at the level of process or the administrative state, or does it operate in another register of political authority or power altogether?
- What institutional forms are essential to a democratized economy? Can economic democracy be achieved through the distributive and regulatory state, or do we need other institutions? Do we need to rethink, for example, antitrust, property, labor law, and the corporate form? If so, how do these areas of law need to be revised in order to render them more democratic?
- What can we learn from past or current experiments with economic governance about paths to achieving economic democracy? Are there precedents that highlight particular hazards or, conversely, refute dire prophecies about what happens when economic life is brought under political control?
2. How does law and political economy define the demos and who is its subject? The nation state still plays a primary role in the constitution of politics and the instantiation of democratic power. But a great many forces that influence our lives and shared fates today exceed its boundaries. Capitalism operates at a global scale, and has been institutionalized in part via the undermining of traditional forms of democratic control within the nation state. Ecological and climate crisis operate at a planetary scale, rendering the fact of global interconnection still more urgent. Taking into account these perplexities of scale, how should we think about the role of borders, migration, and movement in projecting a more just political economy? When we argue for the primacy of politics over the economy and call for re-embedding the economy in political life, what demos and which kinds of subjects does our analysis presume? To which traditions and concepts should we turn in further developing our ideas of politics and democracy?
Possible questions here include:
- Does political economy analysis give us distinctive perspectives on topics such as suffrage or the political units we have inherited (states, countries, etc.)? For example, does economic democracy require extending citizenship (i.e., suffrage) to all residents? Might economic democracy instead (or in addition) demand a radical scaling-down of political communities? Or must politics and institutions go global to match the scale of the problems that must be governed?
- In what ways do ecological perspectives demand that we rethink the boundaries of those included in our communities of concern? In our communities of power? How might vulnerability analysis or other forms of feminist thought centering the crisis of care contribute to these dimensions of our work? What can histories and sociologies of race and racism tell us about the need to rethink the boundaries of the demos? How do collectives create and modify new forms of subjectivity?
- Do we need a distinctive conception—or conceptions—of subjectivity: how persons are formed, what kinds of identities and relationships constitute our flourishing or freedom, what sorts of communities and types of activities we hope to make possible? Which traditions (e.g., socialist, feminist, etc.) have resources to offer here?
- How might participation in social movements alter the relationship of individuals to the political? How do social movements facilitate democratic engagement and what are the limits of this channel of politics? What can we learn about the role of social movements from the development and entrenchment of movements on the right, such as neoliberalism and twentieth century law and economics?
3. How do we build an account of political economy that makes intersectional analysis, feminism, and anti-racism central rather than additional? Capitalism arose intertwined with racialized slavery and imperialism: all known capitalism is arguably racial capitalism. Patriarchy, too, infuses the systems of labor and value that have developed under capitalism. At the same time, advocates and practitioners of capitalism style themselves as egalitarians and emancipators, even producing neoliberal versions of feminism, anti-racism, and equality of citizenship. What are the best analytic and prospective approaches to dismantle these neoliberal framings? What is the role of intersectional identities, from race to sex to sexual orientation, to disability in the analysis of political economy? How does one best incorporate the insights of intersectionality analysis into a theory of political economy? How can law and political economy challenge/transcend the forms of subordination and exclusion that have defined and limited democracy under capitalism?
Possible questions here include:
- In what ways are racism, sexism, and other modes of domination embedded in / central to actually existing capitalism? Does the concept of class need to be rethought through an intersectional lens? Does the figure of the emancipatory subject need to be rethought, and if so, in what ways?
- How do theories of social reproduction and racial capitalism diagnose essential and perennial features of capitalism? Are there parts they leave out?
- What would an alternative political economy that dismantles structures of racialized and gendered exploitation look like? What are the key concepts, sites of contestation, and specific legal reforms that a law and political economy approach should focus on?
- What do non-binary identity and other more foundational challenges to extant epistemologies mean for the law and political economy approach? And what might those epistemological challenges teach us about theories of change?
4. What does “the rule of law” mean from the perspective of political economy? In this moment of democratic crisis and authoritarian backsliding, there is a strong attraction to rallying around institutions familiarly identified with the rule of law, such as judicial review, neutral technocratic administration, a sharp divide between public and private domains, and the restoration of “norms” against “hardball” constitutional politics. But both history (e.g., the Lochner Court) and principle (such institutions tilt in a heavily counter-majoritarian direction) suggest that liberal rule-of-law tropes are conservative in effect and might disproportionately impede progressive reform (even while being violated strategically and brazenly by the right). How should a vision of a democratized political economy relate to more conventional legal norms and concepts of the “rule of law”? How should law, lawyers, and legal scholarship locate the role of law and legal institutions in an effort to move beyond neoliberal political economy?
Possible questions here include:
- What relationship between norm-breaking “hardball” and norm-stabilization would most effectively support democratization?
- What is the role for courts, if any, in constructing and maintaining a democratized political economy, or in moving beyond neoliberalism? How do we understand the legitimacy and scope of judicial review and the role of the courts as against the administrative state or other dispute-resolution institutions? And how does the law and political economy perspective relate to the debates over Court-packing and other Supreme Court reforms?
- What are the limits, if any, of majoritarianism? Does being for democracy ultimately come down to majority rule? If not, what are the alternatives, and what would it mean to call them democratic?
- In what ways do current practices in particular legal domains undermine democratic ordering? How have certain concepts (such as efficiency) come to be imposed within legal thought without a democratic warrant, and how might more democratic accounts of value emerge in particular domains?
5. What are the theoretical and political commitments of law and political economy? There is an increasingly diverse array of scholarship on law and political economy, from theoretical critiques of neoliberalism to the crafting of new democratic policy visions for particular doctrinal areas of law. Are there one or more normative, methodological, or political commitments that unite this diverse body of work? Do there need to be? What are the fundamental or urgent questions we have not included in this CFP that face LPE as an approach/movement? What are the possible oversights or blind spots of law and political economy as an approach?
Possible questions here include:
- When we center the “economic” do we risk leaving aside issues traditionally thought of as outside the economy (national security, the carceral state, the family, planetary sustainability, etc.)? How might the term, or our work, be reshaped to better insist on these as also the terrain of political economy?
- Does LPE have a theory of power? How should LPE scholarship conceive of power in the economy, and private power more broadly? If “market power” is too narrow a construct to capture the power that private actors have, what theories of power should we call upon instead?
- What is LPE’s relationship to critique and earlier critical movements? What is LPE’s relationship to praxis? How can LPE scholarship be in service of, collaborate with, and learn from social movements and those working within the policy landscape? What tensions and conflicts arise from the fact that most LPE scholarship takes place within university settings?
- How might one embody the law and political economy approach in pedagogy? In teaching traditional law school courses? What does “LPE in practice” or LPE lawyering look like? How might we think about these careers for our students?