The Chicago symposium Law & Economics vs. Law & Political Economy was billed as a debate, and the framing tells us how the field still hears the quarrel: L&E on one side, LPE on the other, and a referee somewhere keeping score on rigor.
The exchange between Sarath Sanga and Amy Kapczynski shows how that framing plays out. LPE, Sanga writes, is right but “curiously unlettered”—correct that methods are never just methods, but strangely unwilling to learn the discipline it means to dismantle. Amy Kapczynski’s reply answers in kind: the unqualified demand that LPE be more “empirical” rests on a dogma, because good empiricism requires theory and data never interpret themselves.
The debate has reached a stalemate. One side asks whether LPE is rigorous enough to satisfy the economists (a test LPE has never agreed to sit for), and the other retorts that the economists’ rigor masks value judgments. LPE scholars can and should break the stalemate. Doing so requires more than insisting on the primacy of theory or gesturing broadly at acceptable methods; it requires asking pointedly what kind of methodological maturity a movement like LPE should want. Non-LPE scholars sometimes ask what the method involves, or how one “does” LPE; I suggest a straightforward answer below. But that inquiry raises a deeper question: can LPE have a “method” without becoming the thing it was founded to critique?
Start with a distinction that the word “method” keeps hiding. As I use the terms here, a perspective tells us what to look at, while a method tells us what to do. In this sense, a method is evaluative: a decision procedure for choosing between alternatives. This might involve the use of certain empirical techniques, like regression analysis, but it necessarily goes beyond merely establishing facts and identifying causal relationships.
L&E has an evaluative method that is demanding: it instructs us to select the law or policy that maximizes social welfare, taking as given people’s preferences and constraints. In legal practice, that usually means Kaldor-Hicks efficiency or wealth maximization. Concepts like these are what make the L&E approach a portable, teachable procedure that a student learns in a semester and carries into any field, generating determinate answers a differently situated analyst can check. That is a genuine achievement, and it is one (but not the only) reason for L&E’s diffusion in law over the decades.
But the achievement has a price. Because it measures what people care about by their willingness to pay, efficiency analysis can rank any two outcomes only by first translating everything into a single metric. L&E’s determinacy is bought through flattening. And even that determinacy is conditional: it holds only once the baseline of entitlements is taken as given—the very baseline that first-generation law-and-economics scholar Robert Hale taught us to question. L&E’s answers are checkable, but only within a frame that does much of the deciding ahead of time.
LPE, by contrast, has a perspective and a characteristic analytic operation. Call it the diagnostic move: confronted with an arrangement presented as natural, private, or efficient, the LPE scholar reconstructs it as a product of legal entitlements that allocate power and thereby determine distribution. It is far from the only thing LPE scholars do, but it is the move that most distinguishes the LPE literature and travels most readily across it. This is, in essence, Hale’s insight generalized into a technique that travels from finance and technology to labor and antitrust.
The diagnostic move is portable and teachable. What it is not, at least not yet, is adjudicable. It reliably tells us an arrangement is constructed and could be otherwise. It does not tell us which reconstruction to prefer, or how two analysts who otherwise share LPE premises should settle a disagreement. In other words, while it says plainly what it values, it leaves its criteria gestural and its causal claims untested. In this respect, LPE-as-field should want its mature method to move beyond the pairing of perspective with the diagnostic move.
One might conclude that LPE should build a determinacy procedure of its own. I want to resist this prescription, as the aspiration to reduce legal-political judgment to a neutral technique is itself one of the central objects of LPE’s critique of L&E. A movement founded on that insight cannot coherently reproduce the reduction under a new metric. To do so would be to commit, in its own name, the method-fetishism LPE seeks to expose.
There is a second, more basic reason for doubt. Even a fully specified set of LPE criteria is unlikely to deliver L&E-style determinacy, because those criteria are plural. Non-domination, capabilities, and democratic self-rule will sometimes pull apart, and there is no guarantee of a master formula for trading them off. Rawls tried to order competing commitments lexically; Sen concluded we should settle for partial rankings instead. G.A. Cohen, defending his own pluralism, concluded that “discursively indefensible trade-offs are our fate.”
Pluralism need not mean paralysis, however. The late sociologist Erik Olin Wright’s Real Utopias project offers a model. Wright was openly committed to a cluster of values (equality, democracy, and community) that he acknowledged can conflict, but he never reduced them to a single metric. He instead evaluated concrete institutional designs, such as worker cooperatives and universal basic income, along dimensions of whether they were desirable given those values, viable in practice, and achievable from where we stand. The trade-offs are worked out design by design, in the open, and the viability question was an empirical one that the evidence could answer against the designer.
Similarly, refusing method-fetishism is not the same as forgoing rigor. A field can be rigorous about its normative commitments while remaining candid that they are commitments. I suggest this is the maturity LPE should want: candor plus rigor, the opposite of technique plus neutrality. LPE already shows this in places. Three things would make it the norm, and none asks LPE to pretend to a neutrality it has spent its life exposing.
First, specified normative criteria. LPE criticizes L&E for presenting Kaldor-Hicks efficiency as neutral technique rather than the master value it is. When asked for alternatives, LPE cannot then answer with only a general concern for power and democracy. Non-domination, a capabilities threshold, democratic legitimacy, anti-subordination, decommodification: whichever a given scholar holds, these can be avowed, defended, and used to convert internal disagreements from unstructured clashes into structured arguments. Specification will not dissolve every disagreement, since scholars who share criteria may still weigh them differently. But it tells us whether we are disputing facts, criteria, or weights. Disagreements about weights, argued in the open, are more honest than those buried inside metrics. My aspiration here is not a movement-wide creed but legible disagreement.
Second, an empirical program adequate to LPE’s own causal claims. The claim that a legal rule allocates power is a claim about the world, and it can be wrong. Some such claims are about marginal effects and suit quasi-experiments; others are about how institutions were constituted and call for historical evidence. The point is not to privilege one kind of evidence but to match the evidence to the claim. If codetermination as practiced in Germany turns out to move wages less than one might hope, a mature LPE might ask what that tells us about which forms of worker voice matter. It would also ask what else to measure: re-governing the economists’ tools means choosing our own outcome variables, such as voice, security, and dignity, rather than adopting theirs wholesale.
Third, doctrinal determinacy. One proof of concept already exists: New Brandeis antitrust performed the diagnostic move, specified its criterion openly, and then descended to doctrine—structural presumptions, thresholds, tests—defended with the ordinary materials of legal argument and durable enough to be written into the 2023 Merger Guidelines and survive a change of administration. One can think New Brandeis did not go far enough (and many in LPE do) while still recognizing that it shows how an LPE-style critique can become durable doctrine. That template is portable, and the LPE Blog’s 2022 antitrust symposium shows the movement already working out mid-level principles of this kind. New Brandeis is also instructive about where determinacy comes from. New Brandeis did not derive its thresholds from a formula weighing competition against other values. It settled those trade-offs at the level of doctrine, through presumptions and bright lines chosen and defended as judgments. For a pluralist field, that is likely the realist path: determinacy made in doctrine rather than deduced from theory. Doctrine is one place determinacy gets made; movements that fight for and defend particular institutional choices are another, and arguably the more democratic one.
None of this concedes the economists’ terms, because the audience for more rigor is not the economists. It is the LPE community itself: scholars, advocates, and movement organizers who need to know where we actually disagree. Kapczynski is right that empiricism is theory-laden; the response is not to cede the terrain of evidence but to control the framing of it. Sanga is right that LPE should engage the discipline it critiques; the response is to borrow the tools and re-govern them.
Meanwhile, the deeper worry—that specifying criteria and operationalizing power will tame LPE—inverts the truth. An unspecified concern for “power” or “democracy” is what lets two allies talk past each other without knowing what they disagree about. Specification is what rescues the concept from gesture, even if it cannot rescue us from hard choices. Samuel Moyn has already asked whether LPE needs theory. My answer is that it needs theory, evidence, and doctrine—and that acquiring them need not cost the candor about normative commitments that makes LPE worth having.
The symposium poses the movement’s choice more sharply than it knows. The ambition for LPE is to influence not just scholarship but policy—in a paraphrase of the famous saying, changing the world rather than just interpreting it. I hope that LPE flourishes and is not remembered as a critique that crested and receded, having changed the questions without building the apparatus to answer them. May our future colleagues instead look back admiringly on LPE as a discipline that reorganized the field, as L&E once did—but on more honest terms: rigorous about its politics rather than concealing them. Which future LPE inherits is not yet settled, and it turns on whether the movement is willing to become mature without becoming what it set out to critique.
