By Gwyneth K. Shaw
Even before the global coronavirus hit, 2020 promised a U.S. election more focused on economic inequality than any in recent memory. The COVID-19 pandemic and protests that erupted after George Floyd’s killing have further exposed the fault lines between the wealthiest citizens and the rest of society—and amplified the voices of some who have been advocating for change.
Berkeley Law Professor David Singh Grewal has been one of those voices, and a just-published paper in the Yale Law Journal offers a timely platform for his ideas. Grewal and his co-authors (Amy Kapczynski of Yale Law School, Jedediah Britton-Purdy of Columbia Law School, and K. Sabeel Rahman of Brooklyn Law School) co-founded the Law and Political Economy Project, which produces a blog and has drawn law professors from around the country into the discussion.
In Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, Grewal and his co-authors lay out a blueprint for putting the themes of power, equality, and democracy at the center of legal scholarship. Grewal, who joined the Berkeley Law faculty last year from Yale, discusses this new work below.
Q: Can you explain what the term “law and political economy” means to you, and why you chose it?
Grewal: The idea of focusing on “law and political economy” is meant to bring politics back into economics, and to understand both in relation to law. The approach to law and legal scholarship developed in “law and economics” since roughly the mid-1970s has been a powerful one. But too often, we felt, it has focused on the ways that markets work in a kind of autonomous manner, not seeing them as political constructs reflecting background power relations in society and government.
We want to bring questions of power and the problem of inequality back into the legal analysis of markets and market relations. A number of us were working on roughly these lines when several influential studies of inequality (particularly Thomas Piketty’s landmark Capitalism in the Twenty-First Century) came out, adding fuel to our fire. We began talking about our work as combining law with “political economy” understood in the capacious historical sense that political economy meant in previous centuries.
Q: You wrote this paper before the coronavirus hit, and many inequities highlighted by the pandemic are emblematic of what you and your co-authors question. Do you think the pandemic will create a more receptive audience for your argument?
Grewal: The coronavirus pandemic has been fascinating—and, of course, disturbing to observe—especially with a “law and political economy” hat on. Fundamentally, it’s been a reminder that the economy is not a natural thing with impersonal laws. Instead, the state makes the economy through law and policy. Government action in the next months will determine whether the country will rebound from the shutdown or fall into a long recession. Policy will also decide the shape of the economy that returns.
Q: What are some key decisions that will sway how things unfold?
Will public support help small and independent businesses survive, or will giants like Amazon swallow them up, leaving a more concentrated and homogeneous commercial landscape? Having seen tens of millions of newly unemployed workers lose their health insurance along with their jobs, will we finally move toward universal coverage or instead keep access to health care tethered to employment—particularly during a health crisis? After tens of thousands of frontline workers have risked their jobs to protest unsafe conditions during the pandemic, will we institute pro-union rules and give employees a role in workplace governance, or will we leave everyone to fend for themselves under the continuing fiction that this makes for the best kind of society?
Q: You write “legal discourse has helped consolidate these problems by serving as a powerful authorizing terrain for a set of ‘neoliberal’ political projects that have fueled these same crises.” Can you give a couple of examples to illustrate this point?
Grewal: What has disturbed many of us are things like the frank equation of money and speech, as in the Citizens United case, and elsewhere, in which the First Amendment is interpreted in market or market-like terms. We have tended to analyze this move as reflecting a “neoliberal” turn in recent law and policy-making. By “neoliberalism,” we mean something like “market fundamentalism,” the idea that politics and law ought to defer to a market ordering. Sometimes that may be right, but not as a general matter.
Against the backdrop of increasing economic inequality—and what some political scientists now argue is an “oligarchic” dimension to U.S. policy-making—we need a vigorous non-market conception of what robust citizenship is and why it is valuable.
There is a deeper debate about what matters in law, and beyond, and why. In many private law fields, we have been taught to value efficiency, understood as “wealth-maximization”—a term of art that some may remember from law school. But justifying law and policy-making on the basis of “wealth-maximization” can have the effect, we argue, of undermining citizenship and supporting the drift to greater inequality and oligarchy. Taking this criticism seriously might mean rethinking not just areas of constitutional law but even contracts, torts, antitrust, and other fields that have been dominated for several decades by “wealth-maximization” approaches.
Q: Your paper focuses heavily on what you term the “Twentieth-Century Synthesis.” Can you trace its path and how it became dominant?
Grewal: What we call the “Twentieth-Century Synthesis” is the intellectual division of labor within legal fields that we—and many readers, no doubt—“grew up” with in law school. Under this dispensation, areas of law that were viewed as “about the economy” (contracts, corporations, antitrust, and so on) were given over to a law and economics approach, emphasizing wealth-maximization, while other values (equality, dignity, and so on) were supposed to be realized in constitutional law and areas of public administration.
How and why this came about is partly a story about the history of post-war economics, and its intellectual predominance. It’s also partly a story about the relative economic success of the post-war decades (following war and reconstruction), in which it seemed like the market economy worked pretty well for everyone and could be made the object of something like routine expert management. It’s been harder to keep that faith since the wages stopped increasing for ordinary workers—this is sometime in the mid-1970s—and particularly since the financial crisis of 2007/8, many of the effects of which are still with us as we head into a new crisis.
Q: The central thesis of the paper is that the “Twentieth-Century Synthesis” must be replaced with a new framework. What are the main pillars of what you envision?
Grewal: Part of our concern is to break down the intellectual division of labor at the heart of the “Twentieth-Century Synthesis,” which is sometimes viewed as a division between “private” law and “public law” fields (though my own view is that private law is a bit of a contradiction and public law is just repetitive). Constitutional debates often concern the economy, including in framing the rights and duties that make up “the economy” in the first place. Reciprocally, areas that are often analyzed in efficiency terms—think torts, but also contracts, antitrust, corporate law—are also sites of conflict about what matters in law and why.
To give a few examples, there is an active debate about the purpose of tort law: Is it to design efficient rules for our economic interactions or to provide corrective justice when someone has harmed someone else? Sometimes these may lead to the same result, but not always. Is the purpose of antitrust law to maximize consumer welfare by limiting inefficient monopolies, or is it to promote a robust ideal of citizenship against concentrated corporate power—which today might mean the big platform monopolies in high tech?
What we have proposed so far are just some outlines of what it might mean to think about these questions in a “law and political economy” framework. In the paper, we argue that instead of efficiency, we should foreground questions of power; that instead of formal neutrality, we should focus on substantive equality; and that this means moving from the “antipolitics” of technocratic administration to a much riskier but necessary revitalization of democratic politics.