Short-Term Scholarly Agenda

The focus of my intellectual work has been to bring together questions of social and racial justice with the study of business, markets, economics, and law. My most ambitious work to date, Banking, Finance and Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights and Substantive Racial Justice, 107 HARVARD LAW REVIEW 1463 (1994), examined the intersection of financial institution regulation and civil rights law, with particular reference to the Equal Credit Opportunity and Community Reinvestment Acts.

The article suggested that both civil rights proponents and their industry and academic critics misunderstand major aspects of financial-institution operations and the regulation thereof. On the one hand, financial institutions, capital markets, and credit allocation systems do not operate in precisely the classic “rational” manner assumed by laissez faire commentators. On the other hand, civil rights critics fail to understand the structural economic forces that shape credit decision-making systems, reducing their reform proposals, albeit unintentionally, to “special interest” pleading and demands for charity. The article contended that existing civil rights ideology, whether resting upon the traditional “equality” paradigm or a more contemporary “affirmative action” one, entails an understanding of economics that implicitly accepts the analytic of laissez faire even as it rejects certain market outcomes. In this context, the article attempted to move beyond the conventional belief that economic policy and regulatory reform almost always require a trade-off between efficiency and social justice. Instead, it argued that examination of how particular markets actually operate makes it possible to envision not just a wide range of efficient outcomes, but to do so in ways that integrate social- and racial-justice concerns into the structure and rules of reformed markets.

My current scholarly work-in-progress is tentatively entitled Law, Economics, and Social Justice: Economics As Discourse and Science vs. The Cult of Laissez Faire. Its purpose is to help move socialjustice legal scholarship back toward social science and empirical public policy analyses. Civil rights ideology, affirmative action, and the post-modern critique of professional knowledge and authority have made real contributions to racial and social justice. However, the tendency in contemporary identity and critical scholarship to turn most politically salient questions of fact into disputes of values limits both its scholarly and its programmatic utility. Social-justice legal scholarship must engage with predominant ideas and forms of knowledge, and not just dismiss them as manifestations of the power and cultural bias of elites.

My contention, contrary to most critical race theorists, is that mainstream economic concerns such as efficiency, cost, and individual choice should indeed guide legal and policy analyses. However, contrary to the assertions of most law-and-economics theorists, when specific markets and market institutions are examined empirically, the findings are often at odds with what would be assumed within a laissez faire world-view and provide support for a rather different set of policy reforms. Hence, my project looks to contribute to the development of an alternative law-and-economics that accepts the legitimacy and necessity of the practical concerns of conventional law-and-economics, but argues that such concerns can and must be embedded in an analytic framework that takes just as seriously fundamental issues of social and racial justice.

During the next several years, I intend to survey the economic literature, investigate significant empirical studies, and review the legal and regulatory framework of a number of fields fraught with social justice implications, including municipal services and privatization, investment, capital-market and pension regulation, corporate governance, wage and hour law, and intellectual property protection. I plan to produce several articles that both develop the analytic framework described above and apply this methodology to several substantive regulatory schemes. At the conclusion of this period, I expect to develop an integrated approach that utilizes conventional economic analysis to produce a book on social justice and civil rights from the alternative law-and-economics perspective described herein.