Economics, Law, Philosophy, Politics

Markets Are Government Creations: A Resource Guide

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[Note: This post is unlike the other posts on the blog, for the reasons described here. It offers a series of very rough notes toward a historical sketch of the idea that markets are government creations — in other words, the rejection of the neoliberal, neoclassical, or Reagan Era idea of a conceptual opposition between government and markets. More specifically, it fleshes out the claim in an earlier post that the idea of markets as government creations has been widely accepted by legal scholars, yet largely ignored by academic economists.]

“[T]he market is rational and the government is dumb.” Dick Armey[1]

“[T]he self-regulating economy does not always work as well as its proponents would like us to believe.” Joseph E. Stiglitz[2]

The idea that government plays a constitutive role in markets, including classical liberal markets, is not a new one. But it has never achieved dominance in either public or academic debates about what we would now identify as economic issues. It has never gained the status of a widely shared assumption in the way that its contrary has—the notion of a conceptual opposition between government and the market, public and private. Here, I will offer a brief history of the idea of markets as creatures of government, partly with the simple aim of bringing together in one place the disparate legal and economic contexts in which the idea has been expressed.[3]

At least in the United States, the peak influence of the idea that government constitutes markets arrived a century ago during the Progressive Era, when the “legal realist”[4] and (intellectually related) “institutionalist economics”[5] movements rose to prominence in academic and professional legal and economic thought, respectively. Both movements reacted against the orthodoxies of late-nineteenth-century thought in their respective fields. In law, this orthodoxy is sometimes referred to as “Classical Legal Thought” (CLT).[6] In economics, the orthodoxy often goes under the name “neoclassicism.”[7] A more general term encompassing both threads of intellectual history, but also extending beyond them, would be “classical liberalism.”

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Economics, Law, Politics

After Trump: A Progressive Manifesto

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Whether we think of the last four decades in U.S. politics as the Reagan Era or, with an eye to global political-economic trends, as the era of neoliberalism,[1] it is worth considering that the political regime with which we are all familiar may be coming to an end, with the current president as its final unraveling.

A little over a year since the election of Donald Trump, what we have seen is consistent with the theory that his presidency may be a “disjunctive” one. The term comes from the political scientist Stephen Skowronek’s structuralist theory of presidential politics, which suggests that certain presidents — such as John Adams, John Quincy Adams, Franklin Pierce, James Buchanan, Herbert Hoover, and Jimmy Carter — find themselves in an “impossible leadership situation” as “a president affiliated with a set of established commitments that have in the course of events been called into question as failed or irrelevant responses to the problems of the day” (39).

Assuming our democracy survives the next three years — which remains unclear so long as an unwell racist demagogue possesses executive power, supported by a blindly obedient mass following — what might come after the Reagan Era? The continuing global spread of illiberalism, perhaps aided by the rise of a more competent American strongman, is one possibility. But what is the progressive alternative?

What would American progressives like to see replace the collapsing ideology of neoliberalism?

This question has been a driving preoccupation of this blog since I started writing it in 2014. I still find it useful to frame the challenge for progressives in terms of the question I asked in my second post: If a progressive today were to write a book like Milton Friedman’s Capitalism and Freedom, what would it say? In order to lay the intellectual foundations for a new progressive era, progressives should be able to offer what Friedman’s book offered to the Reagan regime: a simple, rhetorically compelling, easily summarized general vision of politics and the economy — alongside a sample of bold policy proposals that embody the general vision and can serve as a focus of practical political action.

It now seems to me that the intellectual foundations for a new progressive era are finally coming into view. In recent years, a growing chorus of progressive voices — from Dean Baker, Robert Reich, Dani Rodrik, and Geoffrey Hodgson, to the legal scholars at the recently launched Law and Political Economy blog — have begun to coalesce around a simple, compelling idea about government and markets. At the risk of oversimplification, the basic thought is something like this:

The economic choice we face today is not, as the last forty years of our politics has suggested, between government and the market. In fact, as a closer look makes clear, markets are created by governments. The rules of our economic markets are established by our government through its laws.

Our markets are government creations, and the rules of our markets are political decisions. It is in our power as a democracy to fix the rules when they are broken.

For the last forty years, we have lived in the illusion that “the free market” means a set of market rules favoring the wealthy and powerful few at the expense of the freedom of the many. But nothing in the nature of markets requires the neoliberal economic policies our government has so often chosen.

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What so few economists know, but nearly all the good legal scholars understand

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Many of the blogs I’ve enjoyed most over the years feature recurring motifs. One of Kevin Drum’s hobbyhorses is the relation between the phasing out of lead in the United States beginning in the 1970s and the drop in violent crime over the last two decades. If a prominent article proposes an explanation of the fall in violent crime (for example, arguing that “broken windows” policing was responsible) without mentioning the possibility that Americans are less violent because they’re no longer being poisoned by lead at an early age, Drum will chime in. Similarly, Paul Krugman returns again and again, both in his blog and in his columns, to failed predictions of runaway inflation by commentators on the right. Whenever a new warning against “printing money” and the risk of hyperinflation appears, Krugman posts a response. Likewise, Sanford Levinson (at Balkinization) circles back repeatedly to the criticism of political analysts who fail to recognize the harmful political effects of the undemocratic, hardwired structural provisions in the U.S. Constitution, such as the malapportionment of the Senate, the selection of the President by the electoral college, and life tenure for Supreme Court justices.

If I were going to have a hobbyhorse, it would probably be the failure to recognize the role of government in the economy. Not the role of government in regulating the economy. The role of government in constituting the economy. Progressive legal scholars have been hammering away at this point for nearly a century, at least since Robert Hale’s “Coercion and Distribution in a Supposedly Non-Coercive State” (1923), but it has never gotten through to the public consciousness. It has never shaped the way that the American public thinks and talks about the economy. And that’s a tragedy for our national economic conversation.

One reason that the progressive legal scholar’s view of the economy as a government creation has not gotten through to the general public may be that the public (naturally) looks to economists for guidance on how to think about the economy. Unfortunately, even most progressive economists today talk about “the market” as something that exists in opposition to the government, rather than as something created by the government. Whether on the left or right, mainstream economists tend to share the basic conceptual framework of the Reagan era when it comes to the economy, the framework I criticized in an earlier post on Greg Mankiw.

Consider Joseph Stiglitz’s recent remark in Harper’s: “Of course, there is no such thing as a ‘purely’ capitalist system. We have always had a mixed economy, relying on the government for investment in education, technology, and infrastructure.” These statements may sound progressive at first glance, but they adopt some of the central and most damaging assumptions of the Reagan era.

When Stiglitz says that there is “no such thing as a ‘purely’ capitalist system,” he’s right–but not in the sense he intends. The reason there is no such thing as a “purely capitalist” (or “purely free market”) system is not that all modern governments engage in infrastructure spending and the like. The reason is that “capitalism” is not a concept that has an essence or a core. We can talk about pure water–water with all the impurities removed, water that is nothing but H2O. But it simply makes no sense to talk about “pure” capitalism if this means something like capitalism with all traces of government removed. Markets without government aren’t markets at all, at least not in any sense we would recognize today. If the government plays no role in the economy, then there are no property or contract rights–and surely private property rights are one of the features of every economic system that we would call “capitalist.”

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