Law and Political Economy (LPE) is a critical approach to law that is focused on the way that purportedly neutral legal rules shape economic power, disguise the political and ideological choices behind inequality, and insulate “the economy” from democratic control. For law students who care about these problems, it offers a set of analytic tools for thinking about the way that certain neoliberal or “market fundamentalist” assumptions have been absorbed into legal common sense. LPE is invested in asking how law has been instrumental in making the political aspects of markets disappear, as well as how certain phenomena—the labor of the incarcerated, or the impact of racism on home values—get excluded from the boundaries of most “economic” thinking. And it seeks to articulate alternatives for a more sustainable, egalitarian, democratic political economy.
In the below post, we—two 3L LPE fans—try to distill some of the most useful LPE wisdom that we wish we had 1L year. Think of it as a very (very!) brief introduction to LPE, an antidote to some of 1L’s worst intellectual depredations, and a guide to further reading for the interested. On Wednesday, we’ll post a collection of some recommended readings that demonstrate what LPE is all about.
During our 1L orientation, our law school’s dean gave a welcome speech in which she reminded us, with great seriousness, that “law is the language of power.” Probably—aside from flattering the audience’s already quite healthy sense of self-importance—this was meant to make us feel the gravity of the subject that we’d come to study: the law isn’t just about quibbling about whether a stroller is a “vehicle” or learning how to adversely possess your neighbor’s driveway. It’s related to domination and subordination: who rules whom, who gets what, what gets created and what destroyed.
But as classes started it got harder, not easier, to make sense of that line. The experience of the first months of law school is an experience of narrowing. First vaguely and then with some force—usually after you end up feeling dumb for saying something that seemed like common sense—you start to feel certain limits taking shape around you. Some ways of thinking and talking about the cases and rules are permissible, acceptable, even commendable; others are palpably out of bounds. No one will look sideways at the student who analyzes a contracts or property case in terms of “efficiency,” or with reference to “externalities” or other “market failures.” We are taught, for example, that power differentials are not really relevant in assessing the validity of a contract. Tort law should not concern itself with distributional consequences since the market will distribute harm “efficiently” regardless. Economic justice, we’re told, is best addressed through the tax code. (Only to learn in upper level courses that it doesn’t happen there either!) The facts of cases in all classes come to you stripped of the history and the social realities—the lived experiences of race, class, geography—that produced them.
It can be a dizzying process of personal and moral decontextualization, as the conversation gradually hems in what everybody seemed to think was important on the first day—power and justice—by invoking, explicitly or otherwise, a set of assumptions about the relationships between law and markets, markets and politics, race and “the economy,” corrective justice and distributive justice. You’ll almost certainly learn to talk as if these assumptions were your own. The very structure of the curriculum—and the doctrine itself—will seem to exclude discussions of power and to require that you learn not just the law, but particular ways of thinking about it. One of these is “law and economics.” People might talk about it derisively, but it will be pervasive, and its apparently rigorous logic will seem hard to refute.
Some of the moral dissonance and the narrowing of discursive horizons that 1L brings are inevitable, and even salutary. Learning how to be a lawyer does, after all, involve learning to reason the way courts and other lawyers expect you to. It is a truism that you’ve got to learn the rules before you can break them, challenge them, or revise them. But the danger is that the received ways of reasoning about cases, along with the moral and political assumptions they entail, harden into a sense of the way the world actually ought to work—or a sense that there are simply no other reasonable ways of thinking about that question.
Of course critical theorists have long recognized the tendency of these market-loving frameworks to obscure hierarchy and domination. But it seems there is rarely time or space in the 1L curriculum to discuss Robert Hale or Cheryl Harris or Aziz Rana and Aslı Bâli. Perhaps this is why so many of us are left feeling alienated from the concerns that drove us to law school.
One antidote is to study neoliberalism’s effects on legal discourse, to grasp where its assumptions are false or misleading, and to learn about the alternative, more critical ways of grappling with the law and its effects. For us, LPE has provided pathways to put questions back in play that law school seems to rule out of bounds. Drawing on other critical legal traditions including Critical Legal Studies and Critical Race Theory, LPE provides an intellectual toolkit to help confront the gaps, silences, and creepy ethical ambivalence that suffuses so many doctrinal classes. More importantly, LPE can provide a community of professors, practitioners, and students with similar political and scholarly commitments.
Below, we have tried to articulate some of the core critical and constructive insights we have taken from our engagement with LPE. For each, we have identified a few starting questions that operationalize these insights when confronting legal reasoning in class. In contrast to the prevailing law school approach focused on narrow “legal” questions abstracted from social reality, these moves help to widen the field of inquiry.
First, LPE helps us excavate ideological assumptions embedded in legal reasoning. Many of these assumptions reflect idealized neoclassical scripts about human nature, wellbeing, and “the economy” that are simply presented as background facts. LPE helps us name these abstractions and recognize their material implications. This move draws heavily on the realist tradition exposing how purportedly neutral ideas like “efficiency” or “freedom of contract” work to conceal real-world consequences. It helps us to see that there is nothing natural or transcendental about “markets”; rather, modern markets are creatures of law that serve certain social functions—how well they serve those functions will depend on what we think society ought to look like.
- What assumptions does a given case make about the nature of “reasonable” or “rational” people? Who, if anyone, would you expect to actually act according to those assumptions?
- What inequalities are being ignored in the name of making everyone better off? Is any attention paid to the unequal starting point or its effects?
- In a given case, what real-world constraints affect the ability of parties to exercise their rights, but aren’t accounted for in the judge’s reasoning?
- What is the public good and how is it related to individual preferences?
- How does law itself structure the way that we think about or behave in the world?
Second, LPE helps us recognize contingency in legal doctrine by looking at the particular social circumstances from which it arises. Specifically, LPE instructs us to examine whose material interests are served by the creation of a new legal rule. As our classmates Luke Herrine and Jeff Gordon explained to us as 1Ls, this kind of genealogical work can reveal contingencies in the established order and “make it easier to see alternatives.” Here are some questions designed to reveal historical context:
- How was a given regime the product of a particular power struggle? What were the other possible outcomes?
- Whose interests did a given rule serve when it was established? Whose has it served since?
- How do other legal systems handle this question? What accounts for the differences?
Third, LPE trains attention to questions of power and distribution that are typically left out of purely “legal” reasoning. In practice, this means looking for ways that the law creates and reproduces relationships of subordination and facilitates the extraction of value. To help reveal these dimensions, ask questions like:
- Who has power in this case?
- Does the judge’s account highlight or obscure power or subordination?
- How does this legal rule structure the flow of resources or wealth?
- How does the law insulate certain areas of social life from political contestation?
- What is the relationship between economic and political—or between “private” and “public”—power?
Fourth, LPE invites us to imagine concrete alternatives to the current order and map out intermediate steps to help us move in that direction. Drawing on the work of socialist philosopher André Gorz, Amna Akbar has called these ideas “non-reformist reforms.”
- What would justice look like in this scenario? How could law help us approach it?
- What would this case look like if the disempowered party actually had power?
- Is this rule/norm compatible with our long-term vision of justice?
- How could law prefigure more equality?
Law is, in the end, the language of power—and like language it can constrain, enable, disguise, and smooth over even as it pretends to faithful representation. These questions represent a brief and pretty abstract view of LPE, but the hope is that they are a starting point for uncovering some of the ways in which power speaks through law. On Wednesday, we’ll go a little deeper by providing a more comprehensive list of the LPE Blog content that we, as law students, have found most useful and interesting. We hope you’ll check back then.