Political Economy

Is President Donald Trump appealing in part because he has made contracts seem like provisional arrangements likely to endure only insofar as they serve his (or putatively national) interests? Two political economy studies of U.S. workplaces and firms, one ethnographic and one historical, can begin to shed light. Ilana Gershon’s ethnography explores how people’s everyday legal and political consciousness is formed through their experiences of regulatory decision-making in a contract-filled workplace. Sociologist Melinda Cooper’s historical account reveals how a turn to viewing corporations as a conglomeration of individual contracts paved the way for a veneration of autocratic rule. In making this argument, this Essay contributes to the Symposium in two ways. First, it illustrates the value of an insight that has helped organize the field of law and political economy but not law and economics: namely, that people’s legal and political sensibilities are often shaped by their experiences in economic life. Second, it illustrates the value of interpretative social sciences, which has remained marginal in both fields. It argues that qualitative and ethnographic research methods are particularly useful in moments such as the political present in the United States when what can be assumed about political, legal, and class identities and categories is rapidly changing.

Do police help keep us safe? Do prisons make the world less violent? This Essay argues that effectively engaging with these and other notoriously difficult questions about our criminal legal system requires a diverse suite of methodologies. Too often, however, scholars have purported to answer these questions definitively by reference only to top-down, state-created, data categories and numbers: arrest rates, crime rates, formal adjudication outcomes. This Essay argues that opening up research methods to seek knowledge from grounded and communal sources can help unseat assumptions and guide researchers toward more nuanced and expansive understandings of the relationships between law, politics, economics, and our material world. The Law and Political Economy movement (LPE) has provided a natural intellectual home for those who turn to bottom-up sources of knowledge, precisely because of the attention given by LPE scholars to interplays of power, politics, and the law.

The law and political economy (LPE) approach is a new scholarly framework that stresses that the economy and politics cannot be separated, but deeply shape one another, and are mediated by law. This Essay describes how LPE scholarship relates to and differs from two other major legal schools of thought that have notably engaged questions of political economy: the legal realism associated with Professor Robert Hale and the law and economics movement associated with Professors Richard Posner, Steve Shavell, and Louis Kaplow. This Essay argues that LPE work, though critically inflected, has also been quite methodologically open. It is oriented by a set of shared critical insights, literatures, normative aims, and practical projects, and does not draw its practices or theories from any single law-adjacent discipline. It is, however, developing a distinctive "reparative" approach, aiming not to reorder the political economy in top-down fashion, but to facilitate democratic shifts in power and help bring about institutions that are more genuinely democratically ordered. One strand of this work calls for “non-reformist” or “power-building” reforms that operate dynamically to empower tenants, workers, and others who have been historically disempowered. Another seeks to bring private power under more public authority, for example by introducing public options or proposing new foundational norms to ground private law.

The law and political economy (LPE) movement claims concern for marginalized communities as a motivation for its crime agenda. However, efforts to defund police, elect progressive prosecutors, and eliminate prisons are likely to generate large costs for the very communities LPE scholars say they care about. Existing empirical analyses demonstrate that Black individuals benefit disproportionately from the deterrence provided by police. This Essay also provides new evidence that progressive prosecutors have put Black people in lethal danger. Finally, it argues that there are reasons to believe that decarceration would not be costless for the Black community.

The law and political economy (LPE) critique of law and economics offers a clarion call reminding us that methods are never just methods. They are vantage points on power that affect what we see and what we overlook. The LPE critique insists that economics is not a neutral science and that the law and economics approach to understanding society is neither apolitical nor inevitable. It is a compelling critique because, at root, it is correct. And therein lies the tragedy. This Essay argues that in stumbling upon this truth, the LPE movement has managed the remarkable feat of being simultaneously right and curiously unlettered. It has constructed an elaborate structure for critique without engaging with the discipline it claims to dismantle.

When one thinks of government, what comes to mind are familiar general-purpose entities like states, counties, cities, and townships. But more than half of the 90,000 governments in the United States are strikingly different: They are “special-purpose” governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations—such as consumer cooperatives—and thus underscore the nebulous border between “public” and “private” enterprise. Where does that border lie? Second, special-purpose governments typically provide only one service, in sharp contrast to general-purpose governments. There is little in between the two poles—such as two-, three-, or four-purpose governments. Why? This Article answers those questions—and, in so doing, offers a new framework for thinking about special-purpose government.

Under the Supreme Court’s contemporary approach to constitutional meaning, there is a surprising degree of doubt about whether key aspects of the Federal Reserve (“Fed”)—its independence from Congress and the President, and even its power to create money—are constitutional. In particular, we propose that the structure and monetary authority of the Fed can be justified by Article I, Section 8 borrowing power, and by the Public Debt Clause of the Fourteenth Amendment. In 1935, eight members of the Court agreed that these provisions require credible commitments: to meaningfully exercise the borrowing power, Congress must be able to promise creditors it will not undermine the value of its debts. We argue that judicial enforcement of sovereign promises is unlikely to fulfill this goal. Instead, the exercise of monetary authority by independent central banks is the most promising current solution to the credible sovereign borrower problem.