Reflections on Recent Histories of Center-Left Legal and Economic Thought

Mark Tushnet

Provoked by a tweet from Sam Bagenstos, I read Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism and Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy. I agree with Sam that the books are really important for understanding how today’s political economy took the shape it has. Here are some reflections.

The subtitles are a bit misleading. I’d forgone reading Sabin’s book when it was first published because reviews led me to think that he argued that public interest liberals made important contributions to the general discrediting of “government” that’s happened in the United States over the past fifty years. His argument and Berman’s are substantially more nuanced than that. Both do argue, though, that some liberals – Naderites and critics of bureaucratic capture by regulated industries for Sabin, centrist liberal economists for Berman – put forth ideas about “government” and its regular ways of functioning that contributed to some degree to the growth of skepticism about the ability of “government” to do good things, a skepticism that ran much deeper among conservatives and was exploited for political gain by Republicans and big business interests.

In my view (no surprise here), I think their arguments could have been strengthened by incorporating some insights from critical legal studies. I had some strange feelings when reading Sabin. Yale Law School in the late 1960s-early 1970s plays an important role in his story, and it’s disconcerting to read about people I knew then as figures in a historical narrative (though I suppose I’m used to it when reading intellectual histories of legal thought during that period, where I am one of the historical actors). I sort of expected to read a couple of pages about the contemporaneous development of CLS at Yale, then came to understand that including CLS in the narrative wasn’t appropriate for the story Sabin was telling. But, again, some CLS insights – and in particular seeing why CLS-influenced folks put themselves at some (sympathetic) distance from some aspects of public interest law – might have enhanced Sabin’s story. As I’ll note, something similar is true about Berman – though again I want to emphasize that I’m talking about deepening narratives that aren’t seriously flawed in themselves.

For me at least, the CLS take on public interest law was “Go for it, but don’t expect too much – and too many of you see public interest law as a new technocratic solution to the ills of the contemporary political economy.” At least part of the "go for it" came from the fact that I knew and sort of liked a fair number of the people who were working their way into the new field of public interest law (though I did find some others too careerist for my taste). Sabin does a very nice job of showing the deep technocratic aspirations of the most fervent proponents of environmental and public-health related public interest law. (Sabin notes the tension between movement activists and the social-welfare dimensions of public interest  law – here I’d observe that future federal judge and CLS fellow-traveler Nancy Gertner’s student law journal note was on challenges from the public interest legal community to the enforcement of limits on social welfare benefits.). He might have referred to the criticism from the left of the “new professional class” or the “professional-managerial class,” which was part of the Marxist-influenced literature rattling around CLS circles. Technocratic public interest law was, from that perspective, one route into the existing corridors of power – an important aspiration for the soon-to-be lawyers at Harvard and Yale.

(By the way, that aspiration, I think, is one reason for the hostility, particularly at Yale, to CLS – we had no interest in becoming “movers and shakers” while Yale Law’s professors thought that they and their students should do exactly that. The story at Harvard’s more complicated and, for me, intellectually more interesting, because, as Kennedy and Unger have powerfully argued, CLS threatened not the careerist dimensions of law school education but intellectual foundations that were more important to Harvard Law’s identity than to Yale’s. One reason for the absence of a CLS perspective in Sabin may be that, as his acknowledgements list shows, only one of the Yale Law professors with whom he talked – Bob Gordon – had CLS ties, and I suspect Gordon talked with Sabin primarily about the state of the profession in the relevant period than about CLS ideas.)

So, with respect to Sabin, CLS-influenced ideas about class and political power might have introduced even more nuance. For Berman, a similar role might have been played by the critique of rights. She emphasizes the disappearance, or at least eclipse, of rights-based claims about the environment and workplace safety in liberal advocacy and their replacement by efficiency-based arguments for policies in those areas. She doesn’t treat rights- or equality-based argument as a panacea, and emphasizes that such arguments tend to be more successful when associated with social and political movements (and that the weakening of unions and the rise of checkbook environmental groups meant that the rights-related arguments didn’t have such movement associated with them).

The critique of rights saw, as Berman does, successful rights-based challenges associated with social and political movements. It might have contributed to Berman’s story a deeper skepticism about the ability of rights-based arguments to form a stable basis for enduring victories (again, unless supported by social and political movements). The transformation (“weaponization”) of the First Amendment is well-known. Had public interest law managed to constitutionalize economic rights, which was one component of the overall agenda (mentioned by Sabin but not a focal point of his analysis – he is after all mostly an environmental historian), we might have seen a similar transformation (“markets are the best way to ensure the economic prosperity that enables everyone, qua market participant, to secure the basic necessities of life”).

Sam’s right that these two books really do help us understand how we got to where we are. Having recently read and reflected upon Joseph Fishkin and Willi Forbath’s book, I think that the “new political economy” folks have a solid intellectual foundation for moving forward. If only they were connected to some real social/political movement (and were more open about the contributions CLS made to their project)….