An emerging legal movement challenges a long-held consensus.
I.
Nearly every student and professor at Yale Law School assumed that fellow Yalie Hillary Clinton LAW ’73 would coast to an easy electoral victory in the fall of 2016. In the weeks and months following Trump’s surprise upset, feverish conversations about what the election meant for the future of the country—and especially for the future of the legal profession—spilled out of student apartments, bars, and other gathering spaces around New Haven, into lecture halls and seminar rooms at the law school, and back out again. Yale, like much of America, was in a state of shock.
The election spurred a wave of student organizing at the law school, much of it focused on resisting the immediate threat Trump posed to vulnerable communities around the world. That January, for example, a group of law students in Yale’s Worker and Immigrant Rights Advocacy Clinic (WIRAC) made national headlines for its role in challenging Trump’s Muslim ban and staunching the flow of deportations. But for a smaller group of left-wing law students (many of whom were also involved in the immediate wave of organizing), Trump’s election demanded a longer view of things.
“The feeling was that while Trump would be a four or eight-year President, Trumpism was a longer-term phenomenon, and the need to have a very thoughtful and coherent response to that—and not just a political response but a new intellectual framework for rethinking the law and rethinking policy—seemed extremely urgent at that time,” remembers Adam Bradlow LAW ’18.
The beginnings of that framework came together ten days after the election, at eight in the morning on Friday, November 18. Professor Amy Kapczynski, whose work focuses on intellectual property and health justice, convened a group of five students in her office. The students—Nick Werle LAW ’17, Conor Reynolds LAW ’17, Lina Khan LAW ’17, Solange Hilfinger-Pardo LAW ’17, along with Bradlow—knew Kapczynksi and each other well from previous political and academic work at the law school. In the weeks before the election, a few of them had been planning a future conference on how to push a would-be Clinton administration to the left on economic policy.
In the meeting at Kapczynski’s office, the group talked about how Clinton’s loss represented what Werle described as “the failure of the Democratic Party and the left more broadly” to appeal to working people after decades of wage stagnation and spiralling inequality. They talked about the rise of the conservative legal movement, which had steadily shifted many legal fields to the right over the past half-century. And they talked about how they felt their legal education had left them ill-equipped to grapple with the longstanding social, political, and legal structures—from the evaporation of union jobs, to the corporate capture of the political process, to the persistence of racialized violence against nonwhite people—that had made Trump an attractive candidate to tens of millions of Americans.
At the core of the group’s frustration was their feeling that their legal training consistently separated economic questions (how markets are structured and resources distributed) from political ones (who holds power and how they wield it). Trump—the loutish heir to a real estate fortune who exploited America’s business-friendly bankruptcy laws, defrauded its threadbare tax code, and stiffed undocumented workers on his way to the presidency—perfectly encapsulated their interest in the intertwining of economic and political power, and the role of law in mediating both.
The decade before Trump’s election had seen several attempts to push questions of economic inequality to the forefront of legal scholarship. In 2007, a series of small workshops at the University of Buffalo birthed ClassCrits, a network of legal scholars and activists focused on economic justice. Six years later, a small group of academics founded the Association for the Promotion of Political Economy and the Law (APPEAL) with a similar mission. But this time the initiative coincided with a demand from law students themselves.
Toward the end of the meeting, Kapczynski asked the group how she could be of use to them. After some discussion, they decided they wanted to create an entirely new course—it was their education, after all, that they’d found wanting. Werle suggested they frame the class around the concept of “political economy,” an intellectual tradition with roots in the eighteenth and nineteeth centuries that interrogates how the economy is shaped by politics and vice versa. For “political economists” in the classical sense, like Karl Marx and Adam Smith, the economy is inherently political, both in its origins and in its effects. It was exactly the kind of framework the group was looking for.
And thus the “Law and Political Economy” seminar was born.
“I was super excited,” said Werle, who called his dad right after the meeting to tell him how, even in its early days, he felt the idea of a course on political economy “had the potential to be far-reaching.” Reflecting on that moment—and everything that followed it—almost five years later, Werle said the seed he helped plant in Kapczynski’s office that November had blossomed into something greater than he ever could have imagined.
II.
On the evening of January 19th—the first day of the class—Kapczynski asked each of the seventeen students, most of whom were entering their final semester of law school, to explain why they’d decided to join.
“The sort of answers people were giving were that they wanted to understand where legal thought had fallen short, and that they wanted to be the generation that makes a difference, not only in terms of providing a framework that accounts for political economy in legal thought but also in terms of advancing policies and priorities that addressed some of the glaring injustices that we were seeing in our country,” Bradlow remembers.
That the students had a broadly similar set of reasons for taking the class was not a coincidence. Like the smaller group that initially approached Kapczynski, the students in “Law and Political Economy” had frequently crossed paths at Yale.
Two years earlier, several of the students in the class ran a successful left-wing campaign in a contentious election for the board of Yale’s American Constitutional Society chapter, which represents its progressive law students. Their campaign had criticized the ostensibly progressive society’s careerism and chummy relationship with the Democratic Party establishment. Will Bloom LAW ’17 sardonically remembered having run on “a platform of ‘We’re not going to bring Tim fucking Geithner’”—Obama’s Treasury secretary, who had orchestrated the bank bailouts during the Great Recession—“‘to Yale Law School anymore.’” Many were also involved in WIRAC and other clinical work, and a few had been part of reading groups on Law and Neoliberalism and Michel Foucault’s The Birth of Biopolitics. A handful had also been involved in supporting Yale’s grad student union campaign, which had reached a fever pitch that August after the National Labor Relations Board ruled that graduate students at private universities had the right to unionize. The group—and especially its 3L students, whose time at Yale was bookended by the 2014 police killing of Michael Brown and the insurgent campaigns of Donald Trump and Bernie Sanders—represented the “cohering of some left-wing force in the law school,” said Bloom. They “wanted something beyond the bounds of what you can usually find” in the gilded halls of 127 Wall Street.
“We all kind of agreed that the system was broken, that the ownership class had outsized power in our political system and that was influencing the way the law was structured,” Bloom added. “Having all of that out of the way as the set terms of discussion meant that we could actually have very fascinating conversations.”
From mid-January to early April, the group met each Thursday evening in a cramped seminar room in the basement of the law school. Sometimes they’d go out together for drinks after. The late meeting time, combined with the subject matter and the fact that much of the syllabus came together in real time, lent each session a frisson of subversive energy. “It almost felt underground,” Reynolds recalled. “Or as far underground as you can be in Yale Law School’s fancy building.”
They began the course by reading Karl Polanyi, a twentieth century Hungarian political economist whose most well-known argument—that the economy is not a self-regulating machine that follows its own rules, but rather is embedded in non-economic institutions, including the legal system—became “an essential organizing principle” of the course, Werle said. The next weeks covered constitutional law, racial justice, trade, incarceration, labor, environmental law, antitrust, and human rights, with each class focused on how the specific area of law could be moved in a more democratic and egalitarian direction. Most weeks, one or two students volunteered to lead the class discussion. (Just over four years after Lina Khan led the course’s session on anti-trust law, she was named by President Biden as chairwoman of the Federal Trade Commission, a decision hailed by progressives as auguring a new era of trust-busting.)
“It was the best class I’ve taken in my life—best in law school, best period,” reflected Brian Highsmith LAW ’17. “And I think we all felt that there was an urgency there, where this perspective is so sorely missing from our law school curricula. We all realized toward the end of the class that there was something here that needed to be explored further, but we didn’t know exactly what form that would take.”
III.
As spring gave way to summer, the group gathered one last time around a seminar table to figure out how they might continue the momentum the course had generated. They considered initiating LPE-inspired service projects or starting a regular LPE reading group, but both proposals felt too insular. They wanted to see whether their ideas would resonate outside of Yale’s cloistered walls. Ultimately, they settled on continuing the course’s mission in what Kate Redburn LAW ’19 called “the most Web 2.0 way ever.” They started a blog.
As the class scattered across the country for summer internships, clerkships, and first jobs, Redburn, Werle, and Bradlow took the lead. Kapczynski invited David Grewal LAW ’02 and Jed Purdy LAW ’01, then law professors at Yale and Duke, respectively, to be co-founders of the blog (they’d both been guest speakers in the class). Building the blog became a particular obsession for Redburn, who suffered a herniated disc at the end of the summer, causing them to withdraw from Yale for the semester. “I was just lying on my back with this contraption that had my iPad hanging over my face,” Redburn said. “Working on the blog was the only thing preventing me from losing my mind.”
In October, the blog made its debut with a quasi-manifesto, written by Purdy, Grewal, and Kapczynski. “This is a time of crises,” the co-founders began, situating the blog in the context of accelerating inequality and wealth concentration, the climate emergency, and the rise of authoritarian political movements around the world. But it was also, they noted, a time of enhanced possibility. A new generation of left movements, from Occupy and the Fight for 15 to the Movement for Black Lives and #Not1More, was “challenging economic inequality, eroded democracy, the carceral state, and racism, sexism, and other forms of discrimination with a force that was unthinkable just a few years ago.”
Their choice to frame the blog in generational terms wasn’t a coincidence. Purdy, Grewal, and Kapczynski were around the same age and all had gone to Yale Law at the turn of the millennium. Their political consciences were forged in the miasma of what Purdy called “the Long 1990s,” a moment when the Clinton administration’s embrace of austerity gave a bipartisan gloss to the Thatcherite dictum that “there is no alternative” to neoliberal capitalism. Nearly everywhere you looked, Purdy reflected, you encountered “the idea that markets were not only the most viable form of social organization but that they were basically compatible with democracy—and indeed that liberal democracy basically meant market democracy… and that anything that would stand in the way of this trajectory was sort of churlish or reactionary or irrational.” By the time they arrived in law school, transformative change no longer appeared on the horizon.
The blog signaled that things were changing. Kapczynski remembered its early days as shaped by an “ethos of students and faculty thinking together, and trying to figure out what the old frameworks we as faculty were taught as students and come to from our political culture, and what’s wrong and missing.” Among many other subjects, they published pieces that first year on the anti-capitalist racial justice politics of the Movement for Black Lives, the structural violence of Uber and Lyft, and the political economy of freedom of speech.
“I was just blown away that LPE existed,” said John Whitlow, a law professor at CUNY and former tenant lawyer who started writing for the blog that spring. “As soon as I saw it, I recognized that it filled a lack that had existed in the legal academy that was much more profound than I had even realized until I came across it.”
In the spring of 2019, after nearly two years of unpaid volunteer work, mostly by students, the blog’s faculty co-directors secured a $610,000 grant from the Hewlett Foundation through its Beyond Neoliberalism initiative. The grant allowed the professors to officially launch the “Law and Political Economy Project” and to hire Corinne Blalock, who had just finished a JD/PhD at Duke, as its Executive Director.
Like Whitlow, Blalock was shocked by the sheer existence of the project. Back in 2015, she’d written a journal article lamenting the decline of left-wing legal theory in the academy. The heyday of Critical Legal Studies, a leftist legal movement that originated at Harvard Law School and flourished in the nineteen-seventies and nineteen-eighties, was long past. Gone were the days when law professors were proclaiming themselves “guerilla warriors” and urging their students to seek out employment at big corporations just to sabotage them from within. Blalock remembers being laughed at for ending her article with a “sort of cheesy call to arms” for a reinvigorated left legal movement. “The idea of a leftist legal movement, even in 2015, was unthinkable,” she said.
Yet here Blalock was four years later, at the center of just that kind of movement. Demand for Kapczynski’s seminar swelled to nearly a hundred students—just under a sixth of the entire law school. Suddenly, LPE student groups were popping up at law schools all around the country (they currently number over a dozen). The blog’s readership continued to grow, and the project began holding events that drew scholars from every legal field and other academic disciplines. “We grew way faster than we expected,” Blalock said, reflecting on the beginning of her tenure. “LPE really took off.”
But Blalock warned against seeing the early growth of LPE as a sign of where the legal academy is necessarily headed. “The project is only two years old, which is something that gets lost in all the excitement around it,” she said. If LPE represented an American law school version of German radical Rudi Dutschke’s famous 1968 call for leftists to embark on a “long march through the institutions,” then it was just taking its first baby steps. Plus, Blalock added, “You have to acknowledge what we’re up against.”
IV.
On September 3, 2014—his very first day of law school, two-and-a-half years before he’d find his way into the first LPE seminar—Will Bloom sat in his 1L contracts course and listened to his professor’s disquisition on Lucy v. Zehmer. A 1954 Virginia Supreme Court decision commonly taught in first-year contracts courses, the case considered whether a farmer who had drunkenly sold his farm could renege on the agreement (the court ruled against the farmer). Midway through the class, Bloom’s professor went on a “weird economics tangent,” arguing that if the farmer valued his property more than the person he sold it to, he could have just bought it back.
“I remember raising my hand and asking, ‘What if the farmer doesn’t have enough money to buy it back?’ and the professor was like, ‘Well, we just don’t think about that because then the theory won’t work,’ and then stared at me and waited for me to accept that,” Bloom said. “It was a moment when I realized, Oh, this is all made up. These people just have some wild fucking ideas that don’t really have any bearing on the world—except they do have a bearing on the world because they’re part of a decades long political project to impose them.”
Central to that political project is the rise of “law and economics,” an approach to jurisprudence that attempts to apply the principles of neoclassical economics to the study of law. In the early nineteen-seventies, law and economics was the marginal remit of a group of libertarian eccentrics, most of whom were based out of the University of Chicago. Keynesian economics and legal liberalism had won the day following the New Deal, and few in the legal academy took Chicago’s libertarians seriously. Yet over the coming decades, law and economics utterly transformed the legal academy, thanks in large part to the dogged efforts (and deep pockets) of one man: John Olin.
A chemical and munitions magnate, Olin was radicalized after a group of militant black students took over the student union at Cornell, his alma mater, during parents weekend in 1969. Following the uprising—the first-ever armed occupation of a building on an American campus—Olin vowed to use his fortune to “to help to preserve the system which made its accumulation possible.”
The Olin Foundation went on to spend $68 million underwriting the growth of law and economics, dishing out millions of dollars to Harvard, Yale, and other elite law schools to establish law and economics programs and hire law and economics scholars (the investigative journalist Jane Meyer dubbed Olin an “academic Johnny Appleseed”). Over more than two decades, Yale received nearly $20 million from the foundation, much of it dedicated to establishing the John M. Olin Center for Law, Economics and Public Policy.
“We had a really large investment in ideology that had no match on the left or even among centrist liberals,” said Frank Pasquale LAW ’01, a professor at Brooklyn School of Law and a frequent writer for the blog.
By 2000, the foundation considered its donations to Yale to be an “excellent investment” and “one of our most influential Law and Economics grants.” As early as 1993, Yale Law Professor (and future dean) Anthony Kronman LAW ’75 called the rapid expansion of law and economics the “most important change in American legal education in the last twenty-five years.” Internal Olin Foundation documents praised Kronman for “doing all he can to assure the permanency of the program.” In 2008, political scientist Steven Teles crowned law and economics “the most successful intellectual movement in the law of the past thirty years, having rapidly moved from insurgency to hegemony.” Olin’s dream of yanking law schools to the right had come true. As James Piereson, the foundation’s long-time director, bragged to Teles, “Law and economics is neutral, but it has a philosophical thrust in the direction of free markets and limited government. That is, like many disciplines, it seems neutral but isn’t.”
For Ted Hamilton, who entered Harvard Law School in 2013 and is currently a PhD student in comparative literature at Yale, the influence of law and economics could be captured in one mantra. “The most repeated word in my first year law curriculum was not justice, or liberty or order,” Hamilton wrote in a 2014 essay reflecting on his first year at Harvard Law School. “It was efficiency.”
Indeed, “efficiency” is the watchword of law and economics, its guiding shibboleth. At its core, law and economics holds that the law should be oriented above all to achieving economic efficiency, with “efficiency” largely defined as the pursuit of “wealth maximization,” in which goods and services flow to those with the largest “willingness to pay” for them. (It was a version of this argument that Bloom’s contracts professor made on his first day of class.) The rise of law and economics firmly cemented this form of legal reasoning as the default framework in “private law” courses—such as property, torts, and contracts—which are frontloaded in Yale’s legal curriculum. As Bradlow put it, “The dominant legal framework made you ask the question, ‘Given the current set of power relations, what is the most efficient way to distribute resources?’ It wasn’t asking the prior question, ‘Is the current distribution of power in our country just, and how is the law structuring the distribution of that power?’”
Part of why law and economics methods took such a powerful hold in law schools was that little else in legal teaching or scholarship offered much in the way of a countervailing force. During the same decades that saw the rise of law and economics in private law, public law fields such as constitutional law—which were dominated by liberals for most of the 20th century—almost universally retreated from engaging questions of economic power and structural inequality. “In public law classes, the common sense is still the same [as in private law classes],” added Blalock. “You don’t talk about class disparities, and you don’t talk about power.”
By the turn of the twenty-first century, legal fields considered “about the economy” had little to nothing to say about political life, while those considered fundamentally political lacked a robust account of economic power. For anyone in law schools interested in crossing those boundaries (or in pointing out their artificiality to begin with), the prospect of even coming across intelligibly to professors and peers was dim.
“There was something about the dominant vocabularies that sort of baffled and almost numbed any attempt to get hold of the most important questions,” said Purdy of his time as a student at Yale. “It always felt as if to raise issues of distribution, of power, of the role and nature of the state, was to commit a kind of jejune mistake.” Sam Aber ’17 LAW ’22, a current student editor of the blog, echoed Purdy’s feelings. “It can feel like this huge narrowing in what you’re allowed to say, in what kind of arguments are permissible or even make sense.”
For most Yale Law students, that narrowing came to feel natural. At the end of his 1L contracts class in 2014, Manfredi remembers a group discussion where he explained a simple hypothetical, in which a maximally “efficient” world—one with the “largest possible pie,” as economists are wont to say—entailed extreme satisfaction for a minority of people and mass suffering for the rest, whereas a “less efficient” world might have substantial satisfaction, but for all people. “One of my classmates turned around and said, ‘Oh my god. I’d never thought about it like that. I thought that we were supposed to think in terms of efficiency because that was just the goal of law and that it would always make things better,’” Manfredi remembered. “And I just thought to myself, This is how Yale Law School is teaching people to think: they tell you to accept “maximizing efficiency” as an end in and of itself—and that idea becomes unquestioned common sense for people who are going to go on to be extremely powerful, who will go on to run elite institutions someday.”
Indeed, Manfredi’s classmate was far from an outlier. A 2015 study co-authored by Yale Law professor Daniel Markovitz ’91 LAW ’00 surveyed Yale Law students and found that nearly 80 percent displayed a preference for “efficiency” over “equality,” while less than half of average Americans exhibited the same preference. It also found that the Yale Law students were significantly more likely to display “selfish” economic preferences than their non-elite peers. Such a commitment to efficiency—which Markovits and one co-author called “overwhelming, indeed almost eccentric”—was especially striking given the Yale students’ stated political affiliations: over 90 percent identified as Democrats.
Over half a century, the methods, assumptions, and values of law and economics so deeply permeated legal scholarship and pedagogy that they faded into the background, enshrining a set of market fundamentalist orientations as just part of what it means to “think like a lawyer.” “What the common sense makes unsayable is just as powerful as being asked to, for example, determine if this or that regulation is efficient,” Blalock said. “It’s incredibly hard to argue with precisely because it’s invisible.”
V.
Over the first weekend of April 2020, the LPE Project was scheduled to bring over a hundred scholars and students to New Haven for its first major conference, with dozens of panels on subjects ranging from the international law of money to the political economy of motherhood. While Covid-19 spoiled the conference plans, the pandemic and the many disruptions it precipitated also provided a near-daily confirmation of LPE’s foundational intuition: that politics and the economy cannot be separated.
Early pandemic discourses around “essential workers”—disproportionately women and people of color, chronically underpaid and precariously employed—illustrated the centrality of racialized and gendered subordination to the structure of the American economy. As the pandemic plunged the country into a recession, the federal government’s spending on aid exploded neoliberal budget orthodoxy, even as most of the stimulus ended up lining the pockets of wealthy investors. The summer’s protests drew renewed attention to the links between municipal finance, residential segregation, local economies, and chronic disinvestment in Black communities. And the environmental backdrop to it all—a swelling tide of climate disasters, from the Australian bushfires to the heat waves and hurricanes of this summer—offered a potent reminder of what climate activists have been saying for decades: that anything less than a fundamental transformation of our current economic and political order courts utter catastrophe.
Whether the Law and Political Economy movement will push legal scholarship and practice to live up to the exigencies of this moment is ultimately an open question. In many ways, the movement faces an uphill battle. “Starting something new at a law school, especially an elite law school, is really hard, especially when it’s something that goes against the grain of what people are typically taught and is not particularly well-funded by outside organizations,” said Sarang Shah, a former student editor of the blog who founded Berkeley’s LPE student group in 2019. Right-wing potshots, centrist co-option, or simply running out of steam (or money) are all real possibilities.
“You know how you have rocks in a river, and if you’re right behind them you can avoid the power of the current? That’s kind of what LPE feels like,” added Conor Reynolds, who took part in the first LPE seminar and returned to Yale to teach environmental law after he graduated.
What the movement does have in its favor is the nascent hunger of a younger generation to get a grip on the crisis-riven world it was born into, and to find the terms and the means to remake it. As Redburn put it, “We’re the children of the total failure of austerity politics. We’re the Occupiers and later the Black Lives Matter people, where our theory of change involves the wisdom of social movements and mass organization and not elite technocracy, which we’ve experienced as a total failure.”
“What’s really happening is that you have a millennial and post-millennial generation that just doesn’t believe what their law professors tell them anymore,” said Sam Moyn, a law professor at Yale and contributor to the blog. “We’re talking about a limited number of people, but there’s a group of them in a lot of places and it’s big enough to matter.”
While the last decade of left social movement ferment has yielded no shortage of incisive critiques of the present order of things, the pressing question, according to Purdy, is “what is going to get built that lasts?”
“Critical work is just not nearly enough, and rejectionist stances have very limited scope,” he said. “Constructive vocabularies—which is not to say conciliatory or ‘nice’ vocabularies, but vocabularies which are worldmaking and institution-making—are really important.” In its own way, the law and economics vocabulary that LPE so stridently resists has been profoundly constructive—we’re still living in the world it helped make. Much hinges on whether LPE will be able to make a new one.
Jack McCordick is a senior in Branford College.
Updated September 28th, 2021 at 4:09 P.M.
