The New Leftist Lawyers
What is "Law and Political Economy"?
Law and Political Economy
This week, I’m attending a conference sponsored by George Mason University’s Law & Economics Center. The topic is a recent movement of leftist legal academics called “Law and Political Economy.” Not being based in a law school myself, I hadn’t previously heard of this phenomenon. But now that I’ve slogged through about 1,200 pages of assigned readings (Good Lord do lawyers like to pile on the readings!), I thought I would share some of what I learned with you.
The Law and Political Economy (LPE) movement started at Yale Law School back around 2017. Its core ideas are summarized in this 2017 blog post and explored in more depth in this 2020 essay published in the Yale Law Journal. In short, LPE is based on the belief that we are facing multiple, interconnected crises: rising inequality, environmental disaster, worker instability, threats to democracy, and more. According to LPE, these crises were caused or made worse by the "neoliberal" policies of the late 20th century. Those policies, in turn, were supported by key legal ideas like economic efficiency, neutrality, and formal equality. LPE rejects all of this and aims to replace the neoliberal paradigm with one that focuses on equality, democracy, and social justice.
The LPE movement is still small, in absolute terms. But its influence on legal ideas is spreading. The LPE Project promotes a series of conferences, and in 2020 a new academic journal devoted to LPE was launched at UC Berkeley. Many of the leading figures in the movement are fairly high-profile academics. Jedediah Britton-Purdy is one of the most prolific authors among the group, and a professor at Duke Law. Amy Kapczynski is a professor at Yale Law, and K. Sabeel Rahman is a professor at Cornell.
In terms of public influence though, LPE’s brightest star is Lina Khan, a law professor at Columbia and chair of the Federal Trade Commission since 2021. Under her leadership, the FTC has taken a much more aggressive stance on antitrust issues, in keeping with LPE thought on this issue (more on which below).
What Does LPE Believe?
One of the core theoretical ideas of LPE is that both law and economics are fundamentally embedded in politics, in a way that has been neglected by previous legal scholarship. One of the implications of this embeddedness, they argue, is that there’s no such thing as a free market, where “free” is understood to mean the absence of government interference. On this point, LPE draws explicitly on the ideas of Robert Hale (which I’ve discussed earlier) and the legal realist movement. All economic arrangements are coercive, and so they argue there’s no reason to prefer the coercion of so-called “laissez-faire” to the coercion a redistributive welfare state or even a more actively and more centrally managed economy.
Related to this point, but on a more practical level, most LPErs think that the state should be doing much more to reduce economic inequality. Almost every LPE piece I’ve read cites favorably the work of Thomas Piketty, and the movement takes as a starting point his claim that income and wealth inequality have exploded since the 1970s, leading to all sorts of disastrous effects.
Finally, as mentioned above, the LPE movement generally supports a much more aggressive approach to issues of antitrust. They reject the Borkian, Chicago-school, technocratic emphasis on consumer welfare, and advocate a more populist approach which some of them call “Neo-Brandeisianism.” On this view, the main purpose of antitrust law is seen as political rather than economic, guided by the republican ideal of preventing domination.
I find this last idea especially intriguing, and hope to have more to say about it in a future post. For now, let me just point out that the concern underlying this view is not too far afield from one I’ve recently heard expressed by some libertarians (like Randy Barnett and Todd Zywicki). I doubt those libertarians are quite ready to sign onto the “Brandeisian” platform, but they do share the worry about the power wielded by certain private corporations, especially when those corporations are already deeply enmeshed with the power of the state (think big tech, big banking). Traditional libertarian theory, they worry, hasn’t yet come to terms with the “private coercion” this power makes possible.
Problems with LPE
The LPE program is not without its critics. The best papers I’ve seen so far are this one by Peter Boettke and Rosolino Candela, and this one by Roger Meiners and Andrew Morriss. The critics raise a number of distinct points, but to my mind the two most telling objections to the LPE Project are the following:
Insularity - As Meiners and Morriss point out, the LPE approach rests on a number of contentious empirical claims. But the empirical evidence cited in support of these claims is strikingly weak. LPE scholars almost exclusively cite “within the family” sources such as Piketty’s Capital. And they generally ignore challenges to that evidence (which, in the case of Piketty, is abundant). Even in cases where there might be some intellectual overlap, such as the congruence between the LPE’s emphasis on power and politics and traditional public choice accounts of regulatory capture, LPE scholars are silent - either unaware of, or unwilling to acknowledge, insights originating outside of their own ideological camp.
Compared to What? - LPE is at its best when critiquing existing ideas and institutions. But of course we can’t really conclude that those ideas and institutions should be discarded until we have some sense of what to replace them with. And here, just like the critical theorists before them, LPE flounders. “Are we liberals or low-key Marxists?” asks Samuel Moyn in a sympathetic criticism of the project. What is LPE’s theory of capitalism? Of the role of law in society? Most significantly - what is its account of how the law can be used to reliably achieve its vision of equality and social justice? If law is politics, and politics is power, how can LPE ensure that this power will be used for the purposes they admire, and not for those they decry?
There’s a lot more to explore in the LPE Project, and I’m sure I’ll have more to say after the conversations at this week’s conference. So stay tuned for more!
There’s been a similar movement in the UK. Professor Michael Wilkinson of LSE leads the charge on that front. His most renowned work is a Marxist account of how the EU constitutes an authoritarian platform (https://academic.oup.com/book/42114). Much on the scholarship in this field, as you point out, is indeed quite impenetrable unless one is familiar with the family of sources they often cite and the in-group terminology and theories at play.