Journal of Law and Political Economy

A tribute to founding Advisory Board member Sally Engle Merry.

The paper presents a critical examination of dominant representations of Hong Kong in free-market and neoliberal thought, focusing on the popular economics of Milton Friedman and the Manichean worldview of the Mont Pèlerin Society. Friedman and his fellow Mont Pèlerinians sanctified Hong Kong as an original and immaculate site of laissez-faire governance, projecting a stylized, selective, and minimally documented vision of a free-market paradise through the popular media, through policy advice, and through universalizing metrics. Persistently recycled as an ideologically affirmative myth, this neoliberal tale equated Hong Kong with a textbook model of free-market development and lean-state capitalism. Hong Kong duly became a “truth spot” (or “faith spot”) for the project of market fundamentalism. As Friedman once reflected of this, his favorite economy, “Hong Kong has been very useful to me.”

Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.

This essay investigates and ultimately rejects the claim that the United States’ comparatively heavily reliance on markets over government to provide the resources that families need is a natural outgrowth of the country’s longstanding veneration of capitalism. In tracing the nation’s economic ideology over time, it demonstrates that, at least until the end of the twentieth century, the constant in US history has not been the expectation of a free-market economy, but rather a commitment to ensuring that the economy, however structured, will enable families to thrive. The dramatic recent shift in economic ideology, when the prevailing commitment to government regulation was superseded by a commitment to free markets, this essay shows, was neither inevitable nor the spontaneous evolution of longstanding free-market ideology. To the contrary, that shift was grounded on the empirically unfounded claim that government support undermined the wellbeing of families. That claim was at least in part developed and popularized by a network of institutions funded by wealthy libertarians seeking to promote an anti-government agenda, and which used racist tropes to increase the resonance of its anti-government message.

Why has US income inequality surged to unprecedented heights since the 1970s? The rise in inequality was not simply the natural result of differential rates of return but was powerfully driven by politics and policy. This article explores the underlying mechanisms with a focus on market governance, including corporate governance, financial regulation, labor relations, antitrust, sector-specific regulation, and intellectual property rights. Firms and individuals actively shaped market governance in their own favor and then took advantage of that favorable governance in the marketplace. This “inequality snowball” was particularly pronounced in the United States because firms were more aggressive in their business and political strategies and because the political system delivered more winner-take-all policy outcomes than the more consensual political systems of continental Europe and Japan.

The aspiration of this article is to start a conversation about the possible contribution of a Law and Political Economy research agenda in Europe. I first unpack the role of law in structuring the economy at the supranational level by examining the legacy of ordoliberalism and the Economic Constitution of the EU as the normative project of insulating the internal market from political contestation. I then attempt to map the critical approaches that challenge the depoliticization of the economy and constitute the backdrop for an emerging LPE agenda. In particular, I discuss negative universalism, which focuses on the legal form as a limit to power and as enabling particular causes to make claims in universal terms; instrumentalism, which favors politicizing the law to advance egalitarian agendas; and counter-hegemony, which looks to civil society and to social transformation beyond the state. Concluding with a call for pragmatic and contextual critical practice, I attempt to carve out a space for an LPE in Europe agenda rooted in the normative commitment to democracy and equality as a form of immanent critique, in the aspiration to use institutions for social transformation, and in an orientation towards democratic power-building.

This essay chronicles the development of ClassCrits, an organization of US legal scholars that seeks to ground economic analyses in progressive legal jurisprudence. Today, ClassCrits ideas may resonate with a broader audience. I attribute this institutional success partly to ClassCrits’ commitment to: an interdisciplinary “big tent” openness, safe and responsive space, and praxis and collaboration. I then explore three key topics in a selection of ClassCrits writings on class and law: (1) neoliberal entrenchment and preservation; (2) class oppression; and (3) the intersecting oppression of class and race. I argue that ClassCrits scholarship on law and neoliberalism is productively viewed through and anticipates Wendy Brown’s recent work, and that Erik Olin Wright’s approach to class analysis may add more theoretical cohesion to ClassCrits work on law and class. Finally, I suggest that Cedric Robinson’s theory of racial capitalism holds promise for ClassCrits scholarship on the intersection of race and class.