The Origins of the Supreme Court Bar: The Political Economy of Legal Services

 Jeremy Pilaar –

Why do the laws underlying capitalism so heavily favor the wealthy and corporations? One answer, according to my research, lies in the political economy of the legal profession. At the most elite level of the profession sits the Supreme Court bar, lawyers with enormous influence over key rules that structure market relations. In a recent piece, I trace the origins of the Supreme Court bar to better understand the Court’s rightward shift.

Over the past several years, the Court has used its power to give corporations a significant edge over average Americans—making it harder for consumers and employees to hold companies responsible for unlawful behavior, more difficult for workers to form a union, and easier for firms to engage in monopolistic practices and spend unlimited sums on elections.

Though part of this is due to the appointment of increasingly pro-business justices, Harvard Law Professor Richard Lazarus has shown that the Supreme Court bar has also played a role. This bar consists of the attorneys admitted to argue before the justices. As Lazarus and others have revealed, a handful of these lawyers appears before the Court much more frequently than the rest. This elite group also disproportionately works on behalf of large corporations, skewing the Court’s docket in favor of business and deepening the competitive imbalance between big companies and their opponents.

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Social Movements in the Struggle for Redistribution

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Aziza Ahmed – 

social-movementsIn their recent and compelling contribution to the LPE blog, Amna Akbar, Sameer Ashar, and Jocelyn Simonson push us to consider how a left political agenda ought to be crafted. They aim to give specific content to Jedediah’s Purdy’s observation that the Constitution’s core principles have been interpreted to entrench current power structures, thus undermining progressive efforts at redistribution. And, they seek to provide a path for those who agree when Sam Moyn claims that it is not courts but legislatures that will help realize a progressive vision. But how? The answer, they argue lies in turning to social movements. A left legal agenda must, they argue, “be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces.”

The idea that social movements should be central to progressive agendas is appealing, I respond with two questions that aim push this discussion further. First, it is important to explicitly consider what constitutes a social movement – which voices rise to the top, who sets the agenda, and who garners resources? These questions emerge from my own work on legal reform efforts by feminist social movements where the question of who can speak for women, how left legal activism ought to take shape, and what redistributive goals should take priority over others has splintered feminist organizations and has had material consequences, often negative, on the lives of very girls and women they purport to support. Second, and relatedly, legal realism teaches us that law exists in the foreground and background to shape our capacity to bargain, strategize, and organize. I wonder how lawyers and legal strategy constitute the redistributive imagination of left organizations?

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Coming of Age at the End of History

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

John Whitlow – 

social-movementsIn 1989, in the midst of the collapse of the Soviet Union and just before the fall of the Berlin Wall, Francis Fukuyama argued, famously, that we had reached “the End of History.’ Echoing Margaret Thatcher’s dictum that ‘there is no alternative’ to neoliberal capitalism, Fukuyama averred that the triad of free markets, liberal democracy, and consumerist culture had become universal, enveloping the planet so thoroughly as to flatten historical time. There would be no more revolutionary upheaval, no more transformative social change. An ever-expanding capitalism, governed by some variant of representative democracy, was the only game in town, and it was here to stay.

I was fifteen when Fukuyama penned “The End of History,” and – as much as I am loathe to admit it – I am a child of neoliberalism. I was born at the end of 1974, just as New York City entered its fateful descent into fiscal crisis. I grew up in Baltimore during the Reagan years, a witness to the ways in which racial capitalism eviscerated the city’s black and white working class, leaving many of my friends and their families adrift in an economy and a place that had been structurally abandoned. All the while, I was indoctrinated into a public policy common sense of austerity, privatization, and an expanding carceral state; as well as a hollowed-out notion of citizenship in which our subjectivities are constructed primarily through individual-entrepreneurial, rather than solidaristic-democratic, terms.

Looking back, I am struck by how much of this I’ve imbibed, how much it has ordered what I’ve regarded as accepted knowledge, even as I’ve attempted to resist it. For most of my adult life, I’ve been a poverty lawyer/movement lawyer/community lawyer (the terminological distinctions matter, but not so much for the purposes of this essay), and, at times (especially recently) I have found myself questioning how I’ve gone about my work. Of course I knew that the pronouncements of Fukuyama and Thatcher were bankrupt – that they were the product of a politicized theology – but to what extent have my own political, intellectual, and professional horizons been limited by an unwitting, silent acceptance of that same theology?

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Imperium, Dominium, Terra

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

Quinn Slobodian –

9780674979529About a year before Globalists was published, I presented in Mattias Kumm’s colloquium on Global Constitutionalism at the WZB Social Science Center. It seemed like an ordinary talk until the end when the first question came from someone who introduced himself as an international lawyer from Spain. “What are the normative implications of your talk?” he asked. I was stunned. It took me a moment to figure out why.

I’d never been asked that question before.

Historians ask about sources, they ask you to push your story forward or back—or forward and back—or wonder about unheard voices and unseen actors, or dynamics of power, or subtleties of translation and evolving meaning, about temporality and meta-narratives and space and agency and disciplinary placement and categories of analysis, but very rarely—if ever—do they ask about normative implications.

A couple of years and miles from Berlin, I’ve come to expect and even demand the question.  There are, after all, always normative implications to our work. Why not talk about them openly?

The LPE blog has been generous enough to gather pieces from seven legal scholars about my book. Few shy from the question of their Spanish colleague.

All are critics of the settlement I call alternately neoliberal globalism or ordoglobalism that coalesced in its present form in the 1990s around institutions like international investment law, European competition law, and international treaty organizations like the WTO and NAFTA.

The blog authors’ interventions cluster around questions of description and prescription. I will argue that the former supply the grounds for the latter.

What we see tells us what to do. I will conclude by suggesting what we are still missing.

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On “Commerce and Civilization” – The Question of Order in the Post-Colonial World

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

Kojo Koram –

9780674979529“Commerce and Civilization!” These two terms formed the dual mandate popularized by Lord Lugard, the first British Governor-General of a united Nigeria. Despite its promise as being the encumbered, pure logic of the market, liberal capitalist trade has always carried a civilizational imperative, a desire to make or remake the moral order of the world. Quinn Slobodian’s Globalists: The End of Empire and the Birth  of Neoliberalism tells the story of capitalism’s most recent world-making revolution, giving us an intellectual history of the idea of neoliberalism. Spanning the breadth of the twentieth century, taking us from the chaotic disillusionment of the Habsburg Empire up to the triumphant establishment of the World Trade Organization, Slobodian’s book helps reframe the common understanding of neoliberalism as a project not of freeing the market but of instituting and safeguarding it. Through Slobodian, we come to think of neoliberalism as a productive and not a merely a destructive ideology; neoliberalism did seek to dismantle the model of labour power and social welfare that had arisen in post-war Europe, but it was also concerned with creating international institutions that could cultivate a fertile terrain for international capitalism. This post takes up the question of order as Slobodian articulates it, the quest for a fixed economic order underneath the potential disorder of competing nation states being a driver of neoliberalism. Specifically, I wish to reflect further on the history of neoliberalism as it was implemented in the Global South, a story that Slobodian points us towards in Chapter 5 of his book, but a story that remains underappreciated for its consequences upon the contemporary world.

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Globalism and the Dialectic of Globalization

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

David Grewal –


Quinn Slobodian’s Globalists has rightly received praise and critical attention as a groundbreaking study of the ideologies operative in the cloistered domains of international economic law. Indeed, the book has been reviewed favorably by everyone from radical academic critics of global capitalism through to some of the figures responsible for the construction of the neoliberal world order, with some reviews even reposted on the IMF website. Rare is the historical book that can bridge such diverse audiences, providing not just an account of past institutional contestation and reconstruction but the fundaments of today’s politics.

In this post, I want to bring out a dimension implicit in Slobodian’s book but which has not received as much critical scrutiny: the political theory behind what he calls “globalism” or “ordoglobalism” in contrast with what we might call “internationalism.” A confusion about the varieties of cross-border activity and the national politics that each entails is now rampant on the left, with what I believe are increasingly deleterious consequences for democratic and progressive aims of all kinds. A full analysis of these problems is of course beyond the scope of a blog post. Here, I hope merely to suggest the outlines of such a distinction by drawing attention to a key passage in Slobodian’s book to which other interested readers might turn and then to contrast “ordoglobalism” with a prominent form of progressive internationalism that was articulated in the last century. I then want to suggest that the doubling down of ordoglobalism has produced the current and much discussed “crisis of international liberalism” through what I call the “dialectic of globalization” (but which – following Slobodian – I might have called more precisely the dialectic of ordoglobalism).

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Many Neoliberalisms: Market Logic and Social Values

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Kate Redburn –


As many of the other contributors to this symposium have attested, one of the signal achievements of Globalists is the evidence that “neoliberalism” is indeed a coherent set of intellectual commitments, growing like any other ideological movement out of a particular set of historical conditions and contingencies. Fearful that the post-WWI proliferation of nation-states would obstruct the international flow of capital, a diverse set of economic thinkers converged on a new form of internationalism, intended to insulate transnational markets from democratic decision-making at the national level. Given the common suspicion that “neoliberalism” is a trendy, empty synonym for late capitalism, Slobodian’s persuasive account of substantial intellectual agreement – a real “there there” – gives historians of neoliberalism a more solid base from which to proceed.

Given the novelty of this argument, it may be somewhat surprising that I’m not focusing my response on the core agreement within the neoliberal thought collective, but on its internal division over social policy and moral preference. Contrary to accounts of neoliberalism as a hegemonic governmentality, Slobodian illuminates the differences between socially libertarian and socially conservative neoliberals from the earliest days of the neoliberal thought collective. The result points toward a more analytically specific account of American neoliberalism, one which acknowledges the uneven and contested development of actually-existing neoliberal law.

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Envisioning Worker Voice in the Private Government(s) of the Twenty-First Century

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Amanda Jaret –

anderson book cover

For those of us who are interested in law and political economy, seeing a political philosopher of Elizabeth Anderson’s stature dedicate her Tanner Lectures to labor issues is deeply gratifying. In the lectures, Anderson forcefully argues that the state plays a constitutive role in shaping the “private government” of the workplace by establishing rules that preserve space for employers’ exercise of “private, arbitrary, unaccountable” power over workers. As a participant in the “marginalized academic subfields” of labor law and labor history—which Anderson notes are among the only disciplines which consistently raise questions about the normative implications of power disparities in the workplace—I think she is to be commended for addressing the curious invisibility of employers’ regulatory authority over workers’ lives and its broader implications for those who share Anderson’s egalitarian commitments. Nevertheless, I worry that Anderson’s analysis ultimately misses the mark, because it pays insufficient heed to structural economic changes that have transformed “private government” in the past few decades, with consequences that threaten the viability of her vision of ensuring worker voice in the governance of private firms.

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Neoliberal Encasement Infrastructure: The Case of International Organization Sovereign Immunity

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Isra Syed –

9780674979529Last month, the Supreme Court handed down a historic decision in Budha Jam v. International Finance Corporation, ruling that, under the International Organization Immunities Act (IOIA), international organizations are no longer subject to absolute judicial immunity in U.S. courts. The case marked a significant victory for the plaintiffs, who are a group of Indian fishing communities suing the International Finance Corporation (IFC) over tortious environmental damage in their communities caused by the IFC-funded Tata Mundra coal plant. However, the Budha Jam decision, which now restricts international organization immunity to the same level of immunity granted to foreign sovereigns, raises a set of questions about equitable transnational governance, brought into sharp relief by Quinn Slobodian’s “market encasement” thesis in Globalists. As per his thesis, global neoliberalism operates not through a theory of pure anti-statism, but rather through reliance on a strong order of supranational governance institutions with the ability to protect private property interests in a manner insulated from democratic feedback (i.e. “markets encased by institutions”).

In a world of encased markets, what would it mean to make organizations like the World Bank and IFC more democratically and locally accountable? And, to what extent is judicial review in U.S. courts a useful path toward such accountability?

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European Constitutionalism: The Neoliberal Drift

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Alexander Somek

9780674979529We have not yet seen the full story of “law and neoliberalism”, even though a number of legal scholars have written on related subjects from slightly different angles. Duncan Kennedy, for example, has repeatedly attempted to tease out and to distinguish periods of globalized legal scholarship. Herb Hovenkamp recently presented a sweeping account of the imprint that Darwinism and marginalism left on American law. As early as in the 1970s and 1980s, proponents of the critical legal studies movement, such as Roberto Unger or Mark Kelman, pointed out that the modern legal system as such lends expression to the values of liberal individualism (again, it is Kennedy to whom we owe important contributions in this context). Inadvertently, Kelman’s penetrating critique of Chicago school style law and economics, in which he was joined by many others, turned out to be the first critique of typically neoliberal legal thinking, even though it had grown out of the attempt to expose the pathologies of “liberal legal consciousness” tout court.

What we have now seen with the publication of Slobodian’s Globalists, is how, and in which respect, economic neoliberalism has fed into the emergence and growth of global and regional transnational legal institutions. As Slobodian artfully demonstrates, this connection is by no means accidental, it is, indeed, a consequence of the belief in the existence of a world economy. If the economy is in fact an entity of global expanse, the old liberal demand that the state not unnecessarily interfere with society has to be extended to external relations. States must not pursue protectionist policies nor affect adversely the interests of foreign investors. What is more, integrating the decentralised national regulators of the world economy into some international federal system promises to wipe out redistributive social policies in the long haul owing to intense economic pressures of regulatory competition.

In what follows I would like to underscore the importance of Slobodian’s contribution, for it allows us to perceive more clearly the relevant differences between the US American and the European variety of legal neoliberalism. I would also like to add an example for how the European version reinforces constitutional constraints on national democracies in practice.

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