We the Shareholders: Government Market Participation in the Postliberal U.S. Political Economy

Abstract

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private — and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regulatory and welfare programs proliferated. At other moments, the Market struck back, forcing the State to cede ground. The names of these contests are as familiar as Normandy, Gettysburg, and Agincourt: Progressivism, Lochnerism, the New Deal, the Great Society, and the Reagan Revolution.

Today, however, those conflicts seem antiquated, waged over increasingly inconsequential terrain. We’ve now so pervasively blended public and private identities and powers that the traditional liberal divide has all but collapsed. But with the blurring of old battle lines, new ones emerge. This Essay considers the apparent demise of legal liberalism and the corresponding rise of what seemingly comes next: public capitalism.

A volatile blend of neoliberalism and democratic socialism, public capitalism reflects the paradoxes, compromises, and innovations of (1) a big and potentially redistributive State that nonetheless achieves its aims through commercial rather than (just) democratic interventions, and (2) an unstintingly capitalist private sector that nonetheless flexes sovereign regulatory muscle in furtherance of public aims at times orthogonal to profits.

Keywords: Administrative Law, Government Market Participation, Privatization, Deregulation, Legal Liberalism, Neoliberalism, Democratic Socialism, Commodification, Constitutional Law, Regulation, Welfare

JEL Classification: H11, H4, H53, H54, H55