LPE: A Rising Tide at Miami Law?

This post continues our series featuring efforts to organize LPE student groups at several law schools. You can read the rest of the posts here.

Maddie Seales and Amelia Daynes —  

Screen Shot 2019-10-28 at 2.34.10 PMOur introduction to Law & Political Economy came during the February 2019 Rebellious Lawyering Conference (“RebLaw”) at Yale Law School. The Miami Law chapter of the National Lawyers Guild sent six students to the conference, and three of those students attended the “Building the FedSoc of the Left” event organized by students from both Yale Law School and Harvard Law School. When those students returned to Miami Law, they reached out to other progressive Miami Law students and student organizations about these early efforts to organize the LPE Student Network, and other students got involved. Since then, students from Miami Law have been involved in the cross-campus organizing along with fellow students from Harvard, Yale, Berkeley, and University of Pennsylvania.

At Miami, we were particularly interested in adding LPE and critical legal theory courses to the curricular offerings at our school. Miami Law provides some institutional support for public interest—such as a center that connects students with pro bono opportunities, provides public interest scholarships and summer stipends, and oversees a student-run board to manage on-campus programing and fundraise for summer internship programs. But these public interest offerings do not create space for a more critical reflection on the law.

And in the classroom, it can be difficult for students, especially first year students, to find critical approaches to the law. First year students are allowed to take one elective course in their spring semester (only one of which can be explicitly considered a “social justice” elective); furthermore, the main 1L courses lack critical approaches. This dynamic leads to second-year public interest law students stretched beyond their means, doing anything and everything public interest and social justice they can get their hands on because they have not had that opportunity during their first year. Beyond this, the availability of courses that teach or engage with critical legal scholarship depends on what professors choose to teach. There are no courses devoted to critical legal approaches to the law. Thus, one goal of our LPE group is to demonstrate student interest in curriculum that engages with LPE and critical legal theories, in order to push the school to ensure that more of those courses are available and that existing courses incorporate critical approaches to a greater degree.

Continue reading

Challenging Legal Education Through Student Activism at HLS

This post continues our series featuring efforts to organize LPE student groups at several law schools. You can read the rest of the posts here.

Ava Liu —   

Screen Shot 2019-10-28 at 2.34.10 PMAt Harvard, institutional spaces for students to think about topics of law and justice remain limited, especially during the first year of law school when we are pummeled with work. While Harvard Law School has a rich history of student organizing, especially around teaching and academic appointments, we have had limited success in curriculum reform the last few years. From 2015 to 2016, student activists in the Reclaim Harvard Law School movement demanded academic reform as part of their broader demands for racial justice, but there still remain no dedicated critical race theorists appointed to the Harvard Law School faculty. On campus, official student organizations sometimes seem out of touch with the broader conversations happening on the left. Furthermore, these groups have been aligned with an old Democratic Party consensus in ways that felt intellectually staid in the post-2016 climate. Before fall 2019, progressive efforts active on other campuses such as NLG have had little presence.

Within these limited spaces, the alienation I experienced as a 1L led me to pursue work organizing what is now Harvard’s LPE. I came into law school interested in understanding the law and its relationship to power, but found the first year curriculum to be largely inattentive to questions of power and distribution. In particular, I thought the primacy of law and economics was strange. Having studied political philosophy in undergrad, I found the normative focus on grounding efficiency as the supreme goal of the law in Torts and Property to be rather arbitrary. In most classes, and especially in courses around private law, we rarely discussed the simple question of whether an outcome was “fair.” Concerns of distributive justice never entered the fray even when law was the chief mechanism by which distribution was conducted. I suspect this was an experience shared by many other students.

When other students and I found the LPE movement and this blog, it felt like discovering room to breathe. Starting in the fall semester of 2018, students at Harvard Law School began organizing around themes of law and political economy, grounded broadly in economic justice and its intersections with race and gender. Our efforts include reading groups, academic conferences, speaker events, and an alternative curriculum effort to support critical legal scholarship.

Continue reading

The App and the Operating System: Neoliberalism and “Social Reproduction”

Angela Harris 

In the LPE community, issues of race, class, sexuality, and environment are sometimes referred to collectively as “social and ecological reproduction.” In this post and others to follow, I want to think about the place of the social and the ecological in “law and political economy.”

As others have written on this blog, one of LPE’s central commitments is the idea that economic and political governance are both constituted through legal rules, reasoning, and institutions. A second commitment is that in a democratically constituted society, economic governance ought not to be treated like a fully autonomous machine, but rather as bound to some extent by political norms. These ideas, of course, are not new (even to legal scholarship, which tends to be a late adopter of new ideas). But they have new force today. As the late Erik Olin Wright observed in a paper on “strategic logics of anti-capitalism,” in the early decades following World War II (the “Golden Age of Capitalism”), federal government policy worked to ameliorate the most damaging effects of capitalism in at least three ways: reducing the exposure of households to catastrophic risk through social insurance; heavily subsidizing public goods such as libraries, education, transportation, parks, and basic science research and development; and creating a regulatory regime to address some of the most devastating “negative externalities” caused by corporate capital, including environmental degradation, predatory market behavior, and workplace exploitation. The reversal of all of these policies, here in the United States and elsewhere in the world, goes under the name “neoliberalism.” And “law and political economy” is critical legal scholarship reinvented for the age of neoliberalism.

What, though, does LPE want? Would rolling back neoliberalism lead us to pack away our laptops and go home? Take, for example, some infamous features of the “Golden Age:” the omission of agricultural and domestic workers from the Fair Labor Standards Act, the endorsement of “redlining” by the Home Owners Loan Corporation, the embrace of gendered labor markets, and the failure of the federal government to provide free child care (let alone abortion and contraception). Stirring as FDR’s “four freedoms” speech continues to be, I wouldn’t want to live in 1941. We need to do more than un-install the neoliberalism app; we need to change out the operating system, and that operating system runs on caste.

Continue reading

From Form to Reform in Law and Finance: Tammy Lothian

Robert Hockett –

As with most topics having to do with our primary modes of production and distribution – “microeconomics,” “macroeconomics,” “industrial economics,” “labor economics,” … – so with “financial economics” there is a well-entrenched orthodoxy that seems to enjoy pride of place in the academy and on the hustings. Indeed, one often hears “the financial markets” described as that site of economic activity which most closely approximates, in respect of its principal players, constitutive features, and felicitous outcomes, the received Smithian wisdom on decentralized market economies and their virtues.

Financial market participants lack market power, we are told, and the trading mechanism quickly impounds privately held value-pertinent information into publicly observable securities prices. Hence the financial markets can generally be relied upon smoothly to channel investment capital toward its “most valued uses” on a real-time basis. Continuous buying and selling produce informational efficiency, that’s to say, while informational efficiency produces allocative efficiency. Et voila, we are all of us left better off, producing more of what’s most valued and less of what’s least valued than could otherwise be reasonably expected. All thanks to our financial system – like our healthcare system, “the envy of the world.”

If there is any realm, then, in which public intervention should be “light touch” and minimal, orthodoxy tells us that it is the realm of finance. Sure, many a self-styled progressive economist will concede, there are market failures aplenty in some spheres that warrant public intervention. There is “the labor market,” for example, where monopsony power on the part of employers must be counterbalanced by state-sanctioned monopoly power on the part of employees. Or there is “the environment,” in connection with which pollution externalities are an ever-present source of inefficiency that must be made to be re-internalized. But the financial markets are one place where nature is best left to take its beneficent, Scottish Enlightenment course.

It is almost as if the vaunted “Fundamental Theorems” of welfare economics were conceived and derived with the financial markets as their “intended interpretation.”  And maybe they were: note the work done by futures markets, for example, in Hicks’s foundational Value and Capital – work of which Hicks’s intellectual descendants Ken Arrow, Gérard Debreu, and others made similar, and seminal, use later. Surely, then, the financial markets are our most market-like markets – they are markets at their just and efficient best, they are markets par excellence.

Now to anyone who has been paying attention to “real world” economic or even political developments over the past decade or so, the foregoing remarks must ring facetious. Isn’t “Wall Street” the seedbed of all that went wrong in the American and global economies during the lead-up to 2008 and its aftermath? Isn’t Wall Street itself what was accordingly “occupied” once it grew clear that neither Congress nor President Obama were going to do much beyond Dodd-Frank to put things right? And didn’t bank-bashing figure prominently, even if cynically, in certain “AstroTurfed,” pseudo-populist rightwing political movements in 2010 and 2016?

Continue reading

Structural Inequality and the Law: part II

K. Sabeel Rahman

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 his majority opinion a brief account of the ways in which racial and economic segregation has persisted and been codified by a variety of legal and policy regimes, despite the formal elimination of de jure segregation.  Meanwhile, writing in dissent in the 2013 Shelby County v. Holder case where the Roberts Court struck down the preclearance protections of the Voting Rights Act, Justice Ginsburg provides in her opinion a lengthy exposition of the various “second-order” forms of voter suppression and discrimination, outlining how an apparently well-functioning democratic process in fact was riven by systemic patterns of discrimination and political inequality.

These glimpses are indicative of a growing awareness that social justice must be understood as a structural phenomenon encompassing a complex interplay of economic, racial, gender, and political dimensions. Many different legal and policy choices combine to create systemic forms of inequality and exclusion. As discussed in the previous post, one of the key ways these claims for greater inclusion and equity are precluded is by casting them as products of “natural” economic forces, not subject to human agency and alteration. However, even if structural forces are acknowledged to be within the scope of public redress, how to combat them is often viewed too narrowly. This post suggests that the remedies for structural inequities require a similarly structural approach.

Continue reading

Structural Inequality and the Law: part I

K. Sabeel Rahman 

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 the sort that marked the Jim Crow South—had been officially eliminated as in the case of Louisville, and had never been employed in Seattle. Thus whatever racial disparities existed in these regions were not the product of law. For such schools, Roberts wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The systematic racial segregation of modern metro areas, long documented by urban scholars as a result of economic inequalities, racial wealth disparities, and deliberate policies of zoning and urban planning, did not factor into Roberts’ analysis.

A relative lack of concern for what might be termed “structural” inequality has characterized the Roberts Court’s voting rights jurisprudence as well. In Citizens’ United v. FEC, which upheld corporate campaign contributions as political speech, the Court ignored how disparities in economic wealth could skew the otherwise free-flowing marketplace of ideas or the dynamics of political competition. In Shelby County v. Holder, Roberts suggested that the preclearance regime established by the Voting Rights Act of 1964 to oversee voting regulations in many Southern states was no longer needed. In her dissent, Justice Ginsberg castigated Roberts’ argument as, among other things, exhibiting a blindness to more subtle “second-generation” barriers preventing minority groups from exercising their voting rights in full.

These glimpses point to a larger challenge for legal scholarship, analysis, and policymaking. The question of structural inequalities often stump courts and lawmakers alike. What does it mean for inequality to be “systemic”? Can any single actor be held responsible for such systemic or structural disparities? If these disparities are so diffuse, so baked into the background patterns of social and economic activity, how would they even be redressed or counteracted? This two-part series offers a means of conceptualizing both structural inequality and its means of redress.

Continue reading

Where Is Race in Law and Political Economy?

Angela Harris

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 to influence, other than through misguided “intervention” – continues to influence law and policy. A similar separation runs through scholarship in several disciplines, including law, between the study of economics and the study of race. As the new field of “law and political economy” grows, one of its tasks must be to trouble this separation as well.

We know the separation most familiarly as the “race or class?” question (note the either/or framing). In the affirmative action debate, it manifests as this: Isn’t a poor white kid from Appalachia more deserving of the last spot in a freshman class than a black doctor’s kid? In academic discussions, here’s how it typically goes: All this stuff about race, or more broadly, all of this “identity politics,” is a distraction from the deeper and more fundamental realities of wealth and poverty, production and exchange. Sometimes race distracts because it is considered to be a matter of “culture,” which is “epiphenomenal” to material relations: It’s about exploitation, stupid! Other times, race is considered a distraction for pragmatic reasons, because its appearance is “divisive,” threatening the solidarity of labor, or the electorate, or progressive communities, or women. At still other times, especially within academia, the separation of race from economics looks something like a polite form of intellectual self-segregation: while all the black kids are sitting in the cafeteria together talking about critical race theory, the law and economics kids are at their own table, drawing supply and demand curves and talking about Pareto optimality. To each their own, and everybody’s happy.

But this story of race and racism as either irrelevant to or reducible to the story of production, exchange, and consumption is wrong. Black studies scholars have been saying so for quite some time. In 1935, W.E.B. Du Bois argued that what turned the tide of the Civil War was a mass withdrawal of slave labor, amounting to a “general strike.” In his view, the North’s victory was neither a race story nor a labor story, but a powerful demonstration of how the two were intertwined. Generations later, Cedric Robinson’s Black Marxism provided a similar attempt to take race seriously within a materialist frame, arguing that the Eurocentric origins of Marxist theory left it unable to adequately account for black history.

Continue reading

Law, Political Economy, and the Legal Realist Tradition Revisited

K. Sabeel Rahman — 

As David, Amy, and Jed note in their opening post, the economic, social, political, and ecological crises of the current moment are helping fuel an exciting wave of legal scholarship. This emerging trend, the “law and political economy” (LPE) approach, interrogates the relationships between law, politics, and economics, exploring issues of power, inequality, democracy, and social change. As we explore what this approach might mean and what its implications might be, it is important to situate these inquiries in a larger history of legal scholarship and reform politics. 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.

This legacy is important for two reasons. First, now, as then, we face a similar period of socioeconomic upheaval and political conflict, prompting us to rethink our legal structures. As a result, the substantive insights of legal realism remain valuable for an LPE approach today. Second, recalling the trajectory of legal realism and its successor intellectual movements is helpful in highlighting the kinds of tensions and questions that an LPE approach will have to continue to address.

Continue reading

Thinking Intersectionally About Race and Class in the Trump Era

Trump_victory_speech

Noah Zatz –

More than a year after the 2016 election, progressive analysis and strategy continue to be limited by the ping and pong of class-not-race and race-not-class accounts, and recriminations they provoke. Understanding what happened and charting a way forward require an alternative, a thoroughly intersectional analysis of race and class. On such a view, taking race seriously is necessary to understand how class works, not to diminish its importance.

“Intersectionality” risks depletion with its rise as a buzzword, but I mean to invoke specific insights animating the pathbreaking work of Kimberlé Crenshaw and other feminist scholars of color. In particular, they argued that understanding race and racial oppression requires an analysis of how race is gendered and gender is racialized. As Sarah Haley argues in a recent tour de force in this tradition, “gender is constructed by and through race.” So, too, we cannot understand and respond to the racism on display in the 2016 election and since without understanding its intersection with class, and how class is constructed by and through race.

Continue reading

Law & Neoliberalism

David Singh Grewal and Jedediah Purdy –

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 as they do so, to distance themselves from all its other uses and users. People thus use the term in the very conditions it should work to criticize: isolated, idiosyncratic, mutually mistrustful, and “entrepreneurial.”

The term matters because it names key strategies in one of the major conflicts of the time: the struggle between democratic claims on economic life, usually on behalf of the security and autonomy of workers and other “ordinary” people, and the claims of capital and management: for higher profit, greater capital mobility, the subjection of non-market practices to market logic (from childrearing to universities to the professions), and “freedom to manage” through “labor flexibility.” To use the term, in the early twenty-first century, is generally to acknowledge the lines of this conflict, and often to take sides. For this reason, it is often discomforting to anyone whose view of the social and legal worlds is fundamentally conciliatory – Make the pie bigger through overall efficiency! – or organized by a different division, such as good Democrats versus wicked Republicans, or responsible conservatives versus heedless liberals.

If you are looking to identify neoliberal forms of argument, look first for four overlapping kinds of claims. The first and simplest is an efficiency-based view, sometimes called (by its critics) “market fundamentalism,” holding that strong property rights and private contracting are the best means to increase overall welfare, and that law should promote these except when it intervenes to “correct market failures.” Second is a more explicitly moral line of argument (though of course promoting overall welfare is an intensely moral project) that property and markets best protect the freedom and dignity of individuals, so a market society is the most decent social order possible. The third line of argument adopts a tragic register to deny that democratic politics and public institutions can ever successfully discipline and shape economic life. This pessimistic position tends to serve as a backstop when it is clear that market arrangements are failing to deliver overall welfare – because of intermittent crises and runaway inequality, let us say. “That may be so,” the neoliberal argument now runs, “but the alternatives are always worse – corruption, abuse of power, utopian tyrannies.” The last line of argument is the subtlest, often implicit, and also often the most important: the exclusion of certain kinds of ideas and proposals from any place at the table. Continue reading