A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

Inequality and Political Economy in Constitutional Doctrine

Kate Andrias –

Recently on this blog, Sabeel Rahman and Ganesh Sitaraman detailed the growing interest among public law scholars in questions of power, inequality, and political economy.  One feature of the emerging scholarship, they correctly note, is that it directs its attention not primarily to courts, but to legislators and social movements; it focuses not primarily on questions of judicial review but on problems of institutional design and constitutional structure.

There is good reason for the non-juridical focus, as I and others have previously argued.  Courts have rarely been leaders of progressive change, especially in the absence of well-organized social movements.  On economic issues in particular, courts have tended to be regressive.  Against this background and given the Court’s current makeup, relying on litigation as the primary method for opposing economic inequality would be a fool’s errand. Moreover, for public law scholars committed to building a more democratic and egalitarian political economy, there are normative reasons to focus beyond courts.  Courts, after all, are not fundamentally democratic or egalitarian institutions.  There is an irony in relying on elite, nondemocratic institutions to achieve a more egalitarian distribution of power and resources.

Continue reading