This is an interdisciplinary course that examines the impact of neoliberalism on legal thought and practice. Neoliberalism refers to a body of ideas regarding the relationship between capitalism and democracy. Neoliberal theory holds that in a capitalist democracy markets rather than the state should serve as the preferred medium for resolving problems of political economy. Some of its proponents maintain more broadly that neoliberal market rationality provides a model, and a mode of governance, which ought to be extended beyond the economy into non-economic (and non-market) domains of public and private life. Focusing on cases, statutes, regulations, scholarship and other materials, class meetings will explore the “neoliberalization” of contemporary American law across a number of fields. Our investigation of “legal neoliberalism” and of U.S. law “after” neoliberalism will focus on a number of areas, inter alia, contracts, torts, civil procedure, criminal law and criminology, constitutional law, anti-discrimination law, and family law. In addition to issues of substantive law, the course will consider how neoliberal theory and its critiques offer a framework for understanding and addressing a number of current topics in legal sociology, law and the professions, legal ethics and legal education.
By the end of the semester, students enrolled in the course can expect to acquire (1) a working knowledge of the history and core ideas of neoliberal theory in the U.S. and abroad; (2) a solid understanding of the influence neoliberal concepts and categories have had in contemporary U.S. law and legal theory; (3) the ability to identify and critically discuss the key terms, enabling assumptions, analytic procedures and modes of argument that characterize neoliberal legal methods across several areas of public and private law; and (4) a values-based experiential perspective on U.S. legal education and law school culture “after” neoliberalism.