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What’s Beyond “Beyond Neoliberalism”?


Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Part of the nature of a governing paradigm is that it is shapes how we see things. But something we look through is, of course, hard to see beyond. Perhaps there’s an iron rule at work here. So suggests Hegel’s claim about the Owl of Minerva flying only at dusk. But if we seek not just to interpret the world but also to change it, it is especially important to try to glimpse the future that might be emerging in our present.

I’ve been thinking about this while re-reading Corinne Blalock’s superb examination of the decline of critical legal theory. It’s a story of Minerva’s Owl, really: She argues that the crits lost their critical power because they oriented their critique toward legal liberalism, at just the moment that a new paradigm was taking over: neoliberalism.

You see where I’m going here, as the New Year dawns. LPE scholars are seeking to theorize and contest the neoliberal turn, but that paradigm is under more challenge than ever before. It’s increasingly common, even, to hear that “we are in the midst of a transition away from neoliberalism.” It’s a good time, then, for us to be thinking about what comes next. What paradigms might come to end neoliberalism, or to give it one more mutated form?

This week, I’ll describe two efforts to name and shape what comes after neoliberalism, and offer a few thoughts about what they mean for our critiques today. In this post, I’ll focus on an idea gaining attention in mainstream progressive policy circles – some call it “productivism,” others “supply side liberalism,” and still others the “new industrial policy.” On Wednesday, I’ll discuss a competing claim emerging on the theocratic right, which in law schools is calling itself “common good constitutionalism.” Both are more likely to lead to a mutant form of neoliberalism than to a real alternative to it, I think – in part because our political institutions are what they are, and neoliberalism is not just as set of ideas but also a paradigm of governance.

There are other contenders out there, I’m sure. But these two deserve our attention now, because both could significantly shape the intellectual and political fault-lines of the future, whether post-neoliberal or not.

The New Productivism

Today in Washington, its common to hear that industrial policy is back. The Biden Administration’s signature legislative achievements—the infrastructure bill, the semiconductor bill, the Inflation Reduction Act—all plausibly fall under this heading. Voices on the right are also calling for new investments in industrial policy, particularly among the small set of Republicans – the circles around Rubio, Romney, Hawley, and Vance – who are styling themselves as post-neoliberals.

Noting this, Dani Rodrik argues that “a new bipartisan consensus may be emerging” around an alternative to neoliberalism that he calls productivism. As he describes it, this is a view that

emphasizes the dissemination of productive economic opportunities throughout all regions and all segments of the labor force. Unlike neoliberalism, productivism gives governments and civil society a significant role in achieving that goal. It puts less faith in markets, is suspicious of large corporations, and emphasizes production and investment over finance, and revitalizing local communities over globalization. Productivism also departs from the Keynesian welfare state by focusing less on redistribution, social transfers, and macroeconomic management and more on supply-side measures to create good jobs for everyone. And productivism diverges from both of its antecedents by reflecting greater skepticism toward technocrats and expressing less knee-jerk hostility to economic populism.

Ezra Klein, a few months earlier, in an essay that also winged its way around progressive Twitter (remember that?), emphasized some of the same points. He argues that we’re seeing a turn toward “supply side progressivism,” evinced by a move away from “demand side” programs that solve problems, for example, by giving people money or vouchers, and toward solutions on the “supply side,” for example to directly build new housing, develop green technologies, and make our pharmaceutical industry more innovative.

Something is on the move here, but it’s less clear how new it is, or how transformative. Many of the problems with our political economy that are discussed on this blog, for example, could easily remain untouched by – or even be exacerbated by – a new emphasis on “production.” An obvious one is the extractive political economy of reproduction. Biden’s infrastructure bill initially had a focus on care, which he had pledged in the campaign to address. But it was quickly dropped, despite the fact that care remains one of our most important and fastest-growing sectors of formal work, and central, I’ve argued, to what ails our political economy more broadly.

Additionally, it’s not clear that productivism would entail changes to our rapacious carceral state, or provide us with any commitment to universal access to healthcare or other forms of decommodification. It is fueled in significant part by concerns about climate, but does not seem to demand a just energy transition, or any kind of reparative politics, focused on what justice demands of us in a democracy of equals.

Debates about the nature of neoliberalism and capitalism often seem obscure and academic, but their very real implications are visible here. If our political economy today is only – not also but only – a system of production, one based on an ostensible separation between market and politics, then industrial policy can claim (accurately or not) to fix what ails it. But if instead these systems are, as I and others have argued here, historically embedded relations of extraction and expropriation that are deeply entangled with dynamics of racialization and engendering, then what we need is not just far more ambitious, but different in kind.

A second problem is the fate of a progressive industrial policy agenda once it meets the political reality of our institutions. While work in these pages has emphasized the central role of power-building for radical political change, these views are rarely reflected in mainstream conversations about industrial policy, which are still conducted, even among progressives, as if they are technical matters that will be realized by proper elite design. Experts identify a problem, define some solutions, and the world apparently changes.

Our first glimpses of the new industrial policy in practice reveal the limits of this approach. The IRA, for example, contains within it much to celebrate, but it operates in large part though massive subsidies to the private sector. There is real reason to fear that the IRA’s investments in the energy transition – like far too much of the pandemic aid – will end up supercharging private profits and spur new waves of corporate concentration.

One might also wonder how different this version of industrial policy is from the one that defined neoliberalism itself. After all, even if it was often submerged, neoliberal market governance has relied centrally on government spending as a foundation upon which private industry was intended to operate in its normal, profit-seeking mode. A turn toward industrial policy and an embrace of public investment and job creation need not, history tells us, produce something genuinely egalitarian and democratic. In fact, when that investment happens fast, and through institutions hollowed out by neoliberal reforms, it seems exquisitely unlikely. That’s especially so given that our political institutions make spending via reconciliation much easier than lawmaking in general. As a result, we get what Felicia Wong calls the “sunny side of post-neoliberalism” – cash and investments, but not legislative reforms to strengthen labor, promote universal healthcare and housing, reform the courts, or challenge corporate power.

If this spending is in fact to challenge the status quo, it will only succeed with much more attention to its conditions – guardrails on corporate conduct, for example, but also requirements to allocate real power to workers and local communities. We also need a much more serious conversation about where and why such investments should generate public ownership and control over the results of key investments.

Part of what this all suggests, too, is that some of the most critical questions in the next few years of LPE will be about the limits of a narrow version of industrial policy or productivism, and the terms under which public investments can reflect the ideal of economic democracy. More broadly, the challenge is to envision the kind of democratic institutions we need to govern that economy, with history and existing social relations of power in mind.

What kind of institutions are capable of holding open the nature of our “we” (so that the center of democracy remains an empty place, in Claude Lefort’s terms, ensuring that groups, marked by status hierarchies, don’t entrench themselves via their positions of influence over production and care); what kind of institutions are capable of allowing us to learn from people closest to the problems and who bear the heaviest costs (doing Hayek one better, because market signals systematically devalue the input of many such people); and what kind of institutions are capable of consolidating sufficient public power to adopt and enact programs at a scale that matches that of our problems? Is public “ownership” critical and distinctive, as well as one regulatory tool among many? These are far from the only questions that demand our attention, but addressing them becomes more urgent as we look at the intellectual and policy shifts the work of so many writing for this website has helped to produce.

To continue to part two of this essay, addressing so-called “common good constitutionalism,” click here.