Law & Political Economy

Luke Norris

At the turn of the twentieth century, a host of legal scholars developed innovative analyses of the relationship between law, democracy, and the economy. These scholars of political economy refuted laissez-faire ideas by showing that the state, with law as its instrument, necessarily constructed the rules of the marketplace. They also showed how forms of power, constraint, and coercion worked in the economy, along the way justifying governmental regulation to equalize the playing field and provide for the security of citizens. In these ways and others, scholars of political economy reshaped thinking about law, democracy, and the economy, and built an intellectual infrastructure to undergird the regulatory developments of the New Deal and Great Society. Soon, however, there was a shift: the study of economics largely supplanted political economy, and neoclassical ideas about the autonomy of the market and efficiency again took hold. In what became thought of as “private law” fields, such as contracts and antitrust, market baselines were generally accepted, and legal analysis came to be organized around issues of efficiency, marginal utility, and wealth maximization. And in what became thought of as “public law” fields, such as constitutional law, questions of economic power, insecurity, and constraint were largely sidelined.

Today, under conditions of mounting economic inequality and insecurity and concentrating corporate power, a burgeoning group of legal scholars is paying renewed attention to questions of political economy by building out a modern law-and-political-economy (LPE) framework. LPE scholars—drawing insights and inspiration from earlier political economy struggles and work, feminist theory, and critical theory—seek to enrich our understanding of law’s role in mediating the relationship between democracy and economic ordering. In doing so, they aim to reorient legal analysis away from a focus on efficiency and towards a focus on power, away from concepts of neutrality and towards a focus on equality, and away from anti-politics skeptical about government and insulative of markets and towards a richer account of democracy and its regulatory roles and functions.

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