The expression “economic liberty” is a form of conceptual doublespeak. The word doublespeak refers to a kind of “language used to deceive usually through concealment or misrepresentation of truth.” This strategy of redefining reality with the clever use of language is central to the way in which power is exercised in Orwell’s dystopian novel 1984.…
According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice. Orthodox law and economics tellsus: all rights have a cost. Law allocates economic gain, but cannot generate…
In the 2015 case Texas v. Inclusive Communities Project (2014), the Court upheld the application of a disparate impact standard for judging violations of the Fair Housing Act, enabling advocacy groups to challenge urban development policies that (re)produced patterns of racial and economic segregation. In justifying this interpretation of the statute, Justice Kennedy offered in…
In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of…
“[T]ax policy is…human rights policy.” – Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights On the eve of December 1, 2017—as members of the United States Senate prepared for a late night of political contestation—Senator Bernie Sanders made the Republican tax bill a human rights issue. Senator Sanders drew attention to UN…
In the early weeks of the Trump presidency, Steve Bannon declared that one of its principal tasks would be the “deconstruction of the administrative state.” Though Bannon has since left the White House, this project has so far proved one of its most enduring preoccupations. Administrative bodies such as the Environmental Protection Agency, Departments of Health…
What would it mean to make economic and political life more democratic? One way toward an answer is by getting more precise about how they are now undemocratic. Avoidance of democracy runs very deep in American law, and perhaps in the modern legal and political order generally. This is so despite the fact that constitutionalism…
In their first post on this blog, Amy, David, and Jed assert that “politics and the economy cannot be separated.” Nevertheless, as they also observe, the separation of the two – as, for example, in the idea that economic activity is determined by laws of supply and demand that lie outside the power of governments…
This is not the first time that a similar moment of crisis has helped spur creative new thinking about the relationships between law, capitalism, and democracy—and it won’t be the last. In this post, I want to sketch a particular aspect of this trajectory: the long legacy of legal realism and its relationship to our current debates around law and political economy.
Neoliberalism is an indispensable term for making sense of the legal, political, and ideological conflicts of the moment, and also one of the most maligned. Liberals who feel criticized by it have insisted so often and so loudly on its uselessness that even those on the left who use it often seem compelled to apologize…
Why focus on what we call law and political economy, and why now? In the last decade, inequality has become impossible to ignore. The 2008 financial crisis and the foreclosures and dislocation that followed it shook public and (to a limited extent) elite confidence that financial markets would “police” themselves and work for everyone. The…
This is a time of crises. Inequality is accelerating, with gains concentrated at the top of the income and wealth distributions. This trend – interacting with deep racialized and gendered injustice – has had profound implications for our politics, and for the sense of agency, opportunity, and security of all but the narrowest sliver of…
