“What Have the Romans Ever Done for Us?” Dismantling Neoliberal Pieties One Foundational Sector at a Time, by Yochai Benkler
*This is the fourth post in a symposium on Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand’s “Networks, Platforms, and Utilities: Law and Policy.” For other posts in the series, click here.
“We encourage you to think of it as offering something like a liberal arts education in the structural foundations of American capitalism.” (p. 4 concluding the introduction.)
Imagine American society working without electricity or gas; without trucking, airports, railroads or ports; without telephones, television, or the Internet; without money, banking, or credit; I might add without running water, sewage, garbage collection, and roads, though the book does not cover these. If these sound to you like a pastoral utopia, you should read no more. If these sound to you like a perpetual state of collapse, something like a disaster zone in the wake of a hurricane or earthquake, then, like me, you will recognize that without the sectors covered in this new case book, life in America would indeed be nasty, brutish, and short. Yet all of these represent exceptions to the mainstream clean models of efficient markets. They are typified by network effects, positive spillovers, high startup costs, highly variable load rates, or combinations of all of the above. The deregulation faith that captured America since the 1970s has caused severe degradation to most of these sectors. From the mundane—the fact that Americans pay more for slower Internet access than many of our peers in other similarly wealthy countries—to the catastrophic, in the form of the hundreds of people who lost their lives to the Boeing 737 Max crashes due to corporate greed and lax regulation, the failures associated with privatization and deregulation pervade life in the past half century.
I focus my comments here on three intellectual choices that the authors of the Networks, Platforms, and Utilities: Law and Policy casebook made that make the book an excellent exemplar of an important pedagogical pathway for the emerging Law and Political Economy movement. First, they organizing the casebook by sector, rather than by legal or economic doctrinal demands. Second, they situate each sector in its actual historical and material context as a precondition to understanding how it operates. Third, they take a functional approach to the interaction of legislation, regulation, and adjudication as they play out in each sector during the period in which that legislation, regulation, or adjudication is brought to bear on the real world functioning of the sector. In combining these three, the casebook negates precisely the major pernicious tendencies of presently dominant approaches to thinking about how law ought to apply to these basic structural foundations of American economy and society: law and economics and neo-formalism.
Choosing to organize the book around sectors is a precondition to asking the right questions about how the law functions in the world, and hence to evaluating whether it functions in a way that is normatively desirable or not. The way you abstract and conceive of a problem necessarily organizes what you think about, what you try to render coherent, what you can safely ignore. If you organize a casebook around legal doctrinal or procedural questions—say, judicial review, or price regulation, or franchising—you will necessarily focus across fields on those aspects of the doctrine that cohere sufficiently to fit together in a single chapter or set of chapters, and ignore the sector-specific quirks. This is not because you have a hidden agenda, but because as any author or editor, you need to avoid a cacophony of one damn thing after another, none of them fitting together. You have to give yourself and your students some sense of coherence. But the purpose of legal scholarship and education must not be to render the legal doctrine more coherent; it must be to understand how society functions, and how this or that law in fact makes society work better according to some set of explicitly acknowledged set of evaluative procedures and normative commitments. To quote Oliver Wendell Holmes Jr. in Path of the Law: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
Here is where the second choice the authors made comes in. Laws do not emerge out of thin air, nor do they function in a vacuum. All human life exists within an inherited social and material context, including an inherited set of material conditions and technologies and an inherited set of institutional constraints and affordances—some legal, others in the forms of habits, practices, and routines within organizations or in networks of densely packed repeat actors who do not have a formal organizational relation—like a set of nonprofits, businesses, academics, and municipalities whose practices and interactions constitute the field of social life one is regulating. The book introduces each sector and its governing doctrines as it unfolded historically. It offers some basic introduction to the technological or political-social background of the emergence of the sector, and the trajectory of regulatory choices and conflicts through which the present law unfolded. Not every sector has a full explication. Teachers would be well advised to teach themselves more than is in the book to be able to expand for the students on this process. But what this structure allows teachers to do is let the students understand the choices that underlie the present regime. Rather than spending all the time on teaching the most recent cases and doctrines, the books makes it relatively easy for students to understand what the original problems and opportunities the sector posed and promised; to understand how the mid-twentieth century welfarist solution addressed it; and to therefore see the choices implicated in the post-1970s deregulation and privatization campaigns. It allows teachers to emphasize how the law functioned in fact, in this specific sector, at this specific time—because law only ever operates in a specific context and time.
Which brings me to my third point—the functional approach. The way the book is organized makes it easy for teachers to follow Felix Cohen’s recommendation in one of the all time classics of American legal scholarship, Transcendental Nonsense and the Functional Approach. There, Cohen admonishes the realist lawyer to do two things at the same time. The first is to look at the real world, at how law functions in reality, what it does in practice and reality, and to pursue legal change that leads to real world effects one is willing to defend normatively. The second is to be able to present these outcomes using the norms and materials internal to the profession without being fooled that these are, in fact, the cause of adopting this or that rule or standard. By choosing the very traditional casebook as their medium, the authors have given teachers and students all the materials they need—the new precedents and the old; the doctrinal moves and choices—to craft oppositional arguments that would be utterly familiar to practicing lawyers and judges. And yet by following the organization model they do, they help teachers help students navigate the gap between “thinking like a lawyer” and “thinking like a policy wonk and political leader” plus “talking like a lawyer.”
I’m sure others may find fault with this or that sectoral or doctrinal description in the book. More importantly, teachers with an LPE perspective will want to add supplemental readings for each sector that specifically integrate racialized or gendered power and inequality, at least to the extent present in the banking and money sector discussion in the casebook, and likely more so. The book does not offer transformative proposals for these sectors. That is the price of writing a casebook. The achievement is to provide an educational tool for teachers and students interested in understanding how law actually functions to shape economic power and dynamics in most of the areas that form the structural and material foundations of American economy. In this, the book offers a detailed, rich counterargument to the possibility of understanding how law works in practice through abstract concepts like “incentives” or “efficiency,” and offers an integrated, constructive way of teaching students that structural choices about most sectors they care about necessarily entail normative choices.
Yochai Benkler is the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School and faculty co-director of the Berkman Center for Internet and Society; Program on Law and Political Economy at HLS.