At the Blog
On Monday, Talha Syed argued that if LPE wants a social and legal theory adequate to its ambitions, we cannot turn to the insights of the earlier CLS movement to develop it. This is because far from having too much theory, as Sam Moyn has recently claimed, CLS had far too little of it. In both the legal theory of interpretation and social theory of explanation, Syed argues, CLS sought to position itself between two extreme and implausible claims: that law is fully determinate and that it is radically indeterminate. Its sole contribution, then, was to settle on a somewhat platitudinous middle-ground between said extremes, without any indication of the substantive content of such a position. What is left is little more than gestures toward a theory. To move past these limits, he argues, LPE must focus on, “denaturalizing political economy as an arena of irreducibly social relations and dereifying law as a human artifact answering to human interests. Such critiques would bring in tow their own systematic, hence constructive, alternatives—or theories.”
On Tuesday, Douglas Kysar demonstrated how neoliberal welfare economics has constrained our moral and political imagination and, in so doing, limited our ability to realistically advance climate justice. Consider the logic of carbon offsets. As Kysar writes, “once one admits the possibility of counterfactual carbon as a basis for distributing economic rewards and behavioral incentives, there should be no limit to the kinds of mitigation schemes one could concoct. Yet the offset system remains tightly anchored to a business-as-usual vision. In this respect, the offset system seems politically palatable precisely because it is so consonant with the standard neoliberal path of finance, development, and growth.” Why not, for instance, award credits for legal and political actions that force downward our emissions pathways? Lawsuits, referenda, protests, boycotts, civil disobedience – these interventions too can lower emissions trajectories just as financial investments in offset projects supposedly do. So why don’t these groups earn carbon credits?
And on Thursday, Bernard Harcourt argued that critical legal theory and radical political practice, though sometimes cast as alternatives or rivals, are best understood as being in a dynamic, generative relationship. One does not precede the other or take priority. Instead, from W.E.B. Du Bois to Angela Davis, our most important critical thinkers have always engaged in a productive back-and-forth between theory and praxis. For example, as Harcourt explains, “Michel Foucault’s critique of criminal law—captured succinctly in his argument that ‘the penal law is from top to bottom political’—shaped the form, structure, and practices of the Prisons Information Group (GIP). Eschewing Jean-Paul Sartre’s model of a people’s tribunal, the GIP instead gave a bullhorn to incarcerated persons and the means to conduct inquiries. Vice versa, Foucault’s engagement in the GIP transformed his analysis of the prison from a repressive to a productive force and gave birth to the concept of a political economy of the body.” Our task, then, is to ruthlessly confront political praxis and experimentation with critiques of law and vice versa—a continuous back-and-forth in which each one challenges, checks, and transforms the other.
In LPE Land
Earlier this week, a group of more than 300 legal scholars, including many LPE and LPE-adjacent scholars, signed an open letter to President Biden urging him to use all the means at his disposal to bring about a diplomatic solution to the present crisis. As the letter states, this means “a cease-fire in Gaza and throughout the occupied territories, along with the unconditional restoration of food, water, electricity, and medical care to the entire Gaza Strip. It means a guarantee for Gazans to return to their homes. And it also means doing everything within our nation’s power to promote a safe return of all hostages.” The text of the statement and list of signatories can be accessed here.
Please join the LPE Project (in person or virtually) on Tuesday, October 24th at 12:10 for a lunch talk with legal scholar, Supreme Court expert, and Charles Alan Wright Chair in Federal Courts, Stephen Vladeck about his latest best-selling book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
Last call for Roll Call: Did you or a scholar whose work you love have an article accepted this fall? If so, let us know! Next week, we’ll be highlighting some of the hottest LPE and LPE-adjacent forthcoming work. Send nominations to managingeditor@lpeblog.org with a short description of the piece, where it will be forthcoming, and if available, a link to SSRN. Self-nominations are highly encouraged.
