Law & Political Economy

Amy Kapczynski

Much of legal scholarship and practice in recent decades has held politics and economics apart, abstracting away from, or actively denying, their interdependence. Law schools and legal scholarship are organized along an implicit divide between “public” and “private” fields of law which is defined in significant part by the role that economics is thought to play in these respective fields. Many fields are thought of as being “about the economy” – contracts, torts, anti-trust, intellectual property, trade, consumer protection are examples. For the past several decades, scholarship in these fields has been dominated by law and economics approaches that have downplayed considerations of distribution and elevated questions of efficiency. This approach treats efficiency as a “neutral” value, yet construes the term it in a manner that reproduces a constitutive priority for the privileged. Public-law scholarship, in turn, has tended to make questions of economy foreign. To learn and practice constitutional law today, for example, is often to assert that constitutional values have no purchase on questions of economy or class: these, after all, are the received lessons of Lochner and Carolene Products, of San Antonio and McRae. These areas of law have become dominated by a particular version of formal equality, bounded for example by a specific rendering of the state- action doctrine, and by investigations of power and coercion that tended to stop wherever the market is seen to begin.

A new body of “law and political economy” scholarship is emerging to challenge this artificial division between the economy and politics across a wide variety of legal fields. This course will explore the predicates and possibilities of this new approach, discussing also what it can draw from and contribute to social mobilization against intensifying inequality, precarity, racialized and gendered injustice, and ecological destruction.

Part I of the course begins with key theoretical readings that articulate the embeddedness of the economy in politics (e.g., Polanyi, Wood, Robinson), and that describe the role of law in the constitution of markets. We will review the key conceptual moves within law and economics and neoliberal thought and consider how they have worked their way into legal thought and helped to naturalize market-mediated and intersectional inequalities. We will also review key critiques of neoliberalism and law and economics.

Part II of the course asks: what might a mode of legal analysis look like that took the political nature of the economy seriously? What questions would it center? We will begin by exploring what it might mean to democratize the economy, and discuss recent work on how we might identify “non-reformist reforms” that build incrementally toward more a radical democracy. We will then explore a range of legal topics that are central to the effort to construct a more democratic and egalitarian society, and ask what a political economy approach might help us understand or achieve in each realm. We will focus on five topics that are central to intellectual, political, and movement-based efforts to make our legal and social order more just, equal, democratic, and sustainable: healthcare; basic income / work guarantees; reparations; the carceral state and abolition; a renewed constitutional political economy; and trade and global capitalism. The topic of the final class will be determined by seminar participants.

Download Syllabus