The Law and Political Economy Project: A Critical Analysis

The Yale Law and Political Economy (“LPE”) Project began in 2017 following the surprising election of Donald Trump as President. In that time, LPE has increasingly emerged into an intellectual and ideological movement particularly at elite law schools involving the efforts of numerous leading academics, substantial foundation backing, and its own dedicated journal. Lina Kahn, an early contributor to the movement while still a student, has gone on to become Chair of the Federal Trade Commission.

LPE calls for a deconstruction of what it sees as the dominant intellectual paradigm in law over the past several decades, namely the influence of law and economics in law and regulation and a retrenchment of redistributionist policies. Underlying this critique is an appeal to the so-called “Golden Age of American Capitalism” that spanned the period 1945-1973. Building on the foundation of French economist Thomas Piketty’s book Capital in the Twenty-First Century, LPE scholars view this period as one of steady economic growth, widely-shared prosperity, and economic stability, that suddenly ended around 1973 for no clear reason and was replaced with what they alternately characterize “Neoliberal” worldview or “Twentieth-Century Consensus.”

This article critiques this narrative. As is demonstrated, U.S. policymakers turned away from the post-War consensus because of a myriad of clear reasons—“stagflation” (simultaneous high rates of inflation and unemployment combined with slow economic growth), declining global economic competitiveness, and the increasing financial burden of resisting Soviet aggression during the Cold War. It was widely recognized that the economic successes of the post-War era resulted largely from the United States’s dominant global economic position following the decimation of World War II and that the economy succeeded despite, rather than because of the various factors extolled by LPE thinkers. Fears of real economic decline and its consequences prompted a groundswell of support for modernization of regulatory and antitrust policies.

Read at SSRN.