“Law and Political Economy”: A Solution in Search of a Problem

ABSTRACT:

Creating and implementing solutions to social problems requires a realistic assessment of the status quo. The authors of the Law and Political Economy Project movement’s ur-text instead tilt at windmills. They believe that law professors have a tremendous influence on public policy, when our influence, though greater than the average citizen’s, is insignificant relative to macro-trends in politics and society. They believe that the legal academy has been captured by Posnerians in private law and by neoliberals in constitutional law. In reaching this conclusion, they grossly exaggerate the influence of law and economics, misapprehend the focus of modern law and economics scholarship, and ignore the very strong leftward ideological leanings of public law scholars.

The authors believe that the American state has been “chastened” by neoliberalism, when it spends more and regulates more than ever. They think that economic policy is the font of inequality in America, while ignoring the changes in family dynamics that are the primary driver of multi-generational poverty and economic struggle. They blame public policy since the 1970s for oppressing women and non-white Americans, even though both groups are demonstrably better off today than they were fifty years ago. And their standard for a proper egalitarian democracy goes beyond the quixotic and into the impossible.

There may be a provocative, enlightening case to be made that the US needs to move its political and economic system closer to a left-progressive ideal. There may even be some reason to believe that an organized group of law professors interested in political economy is needed to move the US in that direction. But if either or both are true, the founders of the Law and Political Economy movement fail to demonstrate it.