INTRODUCTION_PURDY_GREWAL_BOOKPROOF (DO NOT DELETE)
1/9/2015 12:36 AM
INTRODUCTION: LAW AND NEOLIBERALISM DAVID SINGH GREWAL* JEDEDIAH PURDY** “Neoliberalism” refers to the revival of the doctrines of classical economic liberalism, also called laissez-faire, in politics, ideas, and law. These revived doctrines have taken new form in new settings: the “neo-” means not just that they are back, but that they are also different, a new generation of arguments. What unites the two periods of economic liberalism is their political effect: the assertion and defense of particular market imperatives and unequal economic power against political intervention. Neoliberalism’s advance over the past few decades has reshaped most important domains of public and private life, and the law has been no exception. From constitutional doctrine to financial regulation to intellectual property and family law, market and marketmimicking approaches are now commonplace in our jurisprudence. While the term “neoliberalism” may be unfamiliar to some American legal audiences, it is a common part of the scholarly lexicons of many disciplines and is widely used elsewhere in the world, notably in Latin America and Europe. 1 Some of the explanation for the term’s unfamiliarity may be parochialism. But in the United States in particular, neoliberalism’s political expression has proven less the reincarnation of a doctrine thought to be abandoned (classical liberalism) than the intensification of a familiar and longstanding “anti2 regulatory” politics. Familiar as this political expression may be, it is our
Copyright © 2014 by David Singh Grewal & Jedediah Purdy. This article is also available at http://lcp.law.duke.edu/. * Associate Professor at Yale Law School. ** Robinson O. Everett Professor at Duke Law School. The authors wish to thank Katharine Bartlett, Corinne Blalock, James Boyle, Daniela Cammack, Stefan Eich, Jeremy Kessler, Roni Mann, Ralf Michaels, Madeline Morris, Samuel Moyn, and Christopher Schroeder, as well as participants in the Duke Law School 2014 faculty retreat for valuable comments. They are also grateful for the research assistance of Ariell Friedman and Jane Bahnson and for the superb work of the editors of Law & Contemporary Problems. 1. As Jamie Peck observes, in spite of the association of neoliberalism with a “distinctively American form of ‘free-market’ capitalism . . . the term conspicuously lacks purchase in the United States itself—outside graduate-school seminar room and the organs of the left intelligentsia,” and “has largely remained a subterranean critics’ word.” JAMIE PECK, CONSTRUCTIONS OF NEOLIBERAL REASON 1–2 (2010). 2. A combination of libertarianism and small-business, antistatist politics persisted throughout the twentieth century, forming a line connecting resistance to the New Deal, enthusiasm for the antiplanning arguments of Friedrich Hayek’s Road to Serfdom, and persistent elite mobilization against the regulatory and welfare states. ANGUS BURGIN, THE GREAT PERSUASION: REINVENTING FREE MARKETS SINCE THE DEPRESSION (2012). This last found famous expression in soon-to-be Justice