Journal of Law and Political Economy

This article offers a reconceptualization of class-in-capitalism and its articulation with racialization and gender that builds on critical strands of Marxian thought and integrates insights from Black radical and feminist socialist traditions. Rather than a transhistorical materialist conception of class simpliciter, we develop a historically-specific conception of class embedded within an analysis of capitalist social relations. The result is an account of class based not on the appropriation of a “material surplus,” but on asymmetrical social relations in the division of labor and disposition of its fruits. Developing this conception along three key axes of asymmetries—property, production, and personhood—we show how the dynamics propelled by capitalist social relations are co-constitutive with those of racialization, while both the privatization of reproduction and gender-based super-exploitation are systemic features of these dynamics. We emphasize law’s role in the history of these relations, and end with implications of our analysis for their transformation.

Economic sociology has neglected contract as an institutional foundation for market relations. It has also given inadequate attention to the role of forms of social difference such as race, gender, and sexuality in constituting market exchange. We argue that these omissions share common origins in the status/contract division that figured prominently in nineteenth-century sociological and legal thinking. In excavating these origins, we trace two alternative routes to “socializing the economy” associated with sociological and sociolegal traditions, respectively. The sociological approach rests on a dichotomous understanding of “status” and “contract,” with the result that social (“status”) relations are seen as regulating market exchange from the outside. By contrast, Legal Realists treat status and contract as copresent elements of social organization. Because status and contract are intertwined, they operate through the internal constitution of power and inequality in the bargaining relationship. We conclude by considering how insights from sociology and Legal Realism might be productively joined in analyzing the labor contract.

This article analyzes the impact of climate change litigation on the form of private law, contributing to our understanding of the transformative potential and limits of private law. I argue that climate change litigation breaks the homology between the commodity form and the legal form, to surprisingly antisystemic effect. Developing this argument, I make three distinct contributions. First, I demonstrate that the legal form of climate change litigation is incompatible with the rationale of capital accumulation. Second, I update the commodity form theory of law elaborated by Pašukanis to conceptualize the transformations of European private law systems that have been unfolding for some decades, which I tentatively label “private law for the age of monopoly capitalism” (PLAMC). Third, I contend that climate change litigation departs from the rationale of PLAMC and that in these cases the legal form does not replicate the commodity form. This rare dissociation creates antisystemic potential.

This essay appraises Joseph Fishkin and William Forbath’s The Anti-Oligarchy Constitution (2022). The book proposes that an examination of American history since the founding of the republic discloses a polity that, at least incipiently and thereafter occasionally explicitly, promised its members lives of material well-being sufficient to their responsibilities as citizens of a republic. The authors argue that this promise, which they dub “democracy-of-opportunity,” was honed in battle down the years with champions of “oligarchy and exclusion” for mastery of the instrumentalities of “constitutional political economy.” They affirm the constitutive capacities of constitutionalism as a progressive fighting faith that can revive democracy-of-opportunity in the twenty-first century. This essay sympathizes with the authors’ broad objectives, but does not agree with their arguments. It argues that the lesson LPE scholars should take from this critical encounter is that the law of the current conjuncture cannot reconstruct that conjuncture’s economic foundations.