Law and Philosophy

This Essay concerns the evolving relationship between the economy and the methods society deployed to legitimate, control, and channel economic behavior, especially religion and law. Using the recently published work of three eminent academics—Benjamin Friedman, Jonathan Levy, and William Novak—it addresses first the changes in thought necessary to legitimate acquisitive economic behavior and the consequent centering of law as the secular replacement for religion. As capitalism fostered wider markets, as its evolution embodied industrialism and commercialism, it created problems that the regulatory state could not handle. In America, the transition from regulatory to administrative state was complicated by its federal structure and background democratic egalitarian yearnings. Friedman, Levy, and Novak illustrate and elucidate aspects of that evolution. This Essay suggests that reading them together explains more than each separately, and ends by noting how the tensions they explain usefully add to our understanding of American law, and, coincidentally, the potentially transformational administrative law decisions of the Supreme Court in the 2023–2024 term.

What is the meaning of the phrase “discriminate because of sex”? This was the key question the Supreme Court faced in Bostock v. Clayton County.