New Article: Duncan Kennedy, Law Distributes I: Ricardo Marx Cls, SSRN April 2021. Abstract below:
This article appropriates Ricardo and Marx as progenitors of one of the contemporary CLS approaches to law and political economy. In the first part, I look at Ricardo and Marx through a presentist lens. I ignore their allegiance to the labor theory of value and restate what I think is important for “us” in neo-classical terms. What is left is a model in which a legal regime distributes a surplus helping some at the expense of others, setting in motion a chain of further distributional changes in a particular direction (e.g. stagnation or growth). Then I describe Ricardo’s legal presuppositions and Marx’s explicit understanding of law as seriously mistaken and restate their ideas in the “post-realist” mainstream language of contemporary American legal thought. The great question they help answer, restated, is how to decide when redistributive interventions will or will not, have or have not “hurt the people they are trying to help.” The last part introduces this approach, contrasting it with familiar liberal approaches. The normative orientation is to distribution in favor of subordinated groups rather than to efficiency and to work on transformable background rules of public and private law rather than to politically unattainable reform by tax and spend, large scale re-regulation or decommodification. A companion article applies the “neo-Ricardian” analytic to the dynamics of housing and credit markets in poor black neighborhoods.
I have received valuable feedback on this version of this paper from about a dozen colleagues and friends, and I am working on a new draft that will respond to many telling criticisms and useful suggestions. I am posting the initial version here now in the hope of soliciting even more help in the interval before I can complete the new one.