Progressivism in the Active Free Enterprise State: Fluidity, Fragmentation, and Stability: A Case Study in Law and Public Policy

Abstract

This article is the result of a collaboration between me and Professor Maria Paula Dallari Bucci of Sao Paulo Law School working toward a framework for Law and Public Policy (LPP). The article frames LPP as multi-interdisciplinary research on public policy, its operation, and effects, which applies nationally, regionally, and locally and to each sub-area of public policy (education, environment, housing, etc.). Many disciplines have their own research on the topic: law, economics, political science, sociology, history, etc. (the intra- aspect). Also, each discipline can and does work in the center linking to the other disciplines (the inter- aspect). With LPP, law is in the center with links to the other disciplines. Law at the center refers to how legislation, administrative rules, judicial holdings, and official influence are involved in the design, creation, implementation, and effects of each area of public policy. As an application of the framework, the article includes a longitudinal case study of the history of progressivism in the U.S. defined as policies advancing the public good and equity. The first draft of the case study was notes for a class I held with Prof. Bucci and her students. This article is a slightly more formal extension -- but still in the spirit of something we could call "notes toward an LPP framework." The case study discusses three issues: 1) areas of overlap between progressivism and the right, bipartisan, partial, and contested 2) the decades long conservative movement aimed at rolling back progressive policies 3) anxieties and realistic possibilities for the end of progressivism, permanent single party rule, or a coup overturning the institutions of democracy in favor of executive autocracy. A general framework compatible with the article encapsulating the dynamics of change and stability is Elinor Ostrom's survey of institutional choice research discussed in Appendix A.

This article was written as part of a collaboration, Bucci and Clune: A South-North Dialogue. Professor Maria Paula Dallari Bucci's article can be found on SSRN at this link: https://ssrn.com/abstract=4095414

Keywords: Law and public policy, progressivism, legal history, Interdisciplinary studies, new legal realism, law and social science, comparative law, institutional choice, Federalism

JEL Classification: K32: Environmental, Health, and Safety Law