We kick off our 2022 NLR blog post series with two posts from Professors Bill Clune (US) and Maria Paula Dallari Bucci (Brazil). Their collaboration exemplifies the kinds of dialogue that the New Legal Realist movement has aspired to from its inception, crossing many boundaries to generate vibrant discussion of law in action.
Progressivism in the Active Free Enterprise State: Fluidity, Fragmentation, and Stability
Bill Clune,[1] March 2022
Blog Foreword
This blog originated when Professor Maria Dallari Bucci, University of São Paulo (USP) Law School,[2] contacted me about some of my scholarly work that she and her students had found valuable and asked me to teach a class for her course in law and public policy (remotely from Madison to São Paulo). Of course, I agreed. Because my work was from the 1980s and described policy formation and implementation at a moment in time, I thought it would be helpful if I updated the empirical setting and placed it in a longitudinal framework as a test of its hypotheses about the dynamics of the legal process. The first draft of this blog was notes I wrote for the class and made available to the students. This blog is a slightly more formal extension — but still in the spirit of something we could call “notes toward a new framework.” I pulled in some recent work – the legal realism book I recently edited, a preliminary venture into institutional choice, the recent history of progressivism at the national level in the U.S drawn from mostly informal sources, some legal doctrine, etc., and spliced together a next version. Progressivism we thought was a topic of cross-national significance, roughly defined as the expansion of the public good and welfare with inclusion of poor and minority groups and geographical areas (jumping ahead here a bit in our continuing dialogue).
I covered so much ground in the blog from different literatures and sources that a deep dive into the scholarship surrounding each topic was impossible. As a result, the blog is distinctly eclectic and informal in the way it draws on sources and represents historical trends and to that extent is un-scholarly. It is asking “how might we build a framework applied to a current policy context?” In that spirit, the blog leans towards hyperlinks rather than published articles allowing excursions to different kinds of sources. In a different sense, wide-ranging informality is not so accidental but rather points to an underlying methodological issue. Consistent with the idea discussed in the blog that law and public policy is multi- interdisciplinary, empirical applications must crisscross a lot of disciplinary ground. It is indispensably law and social science but also law and multi social sciences drawn together around substantive issues. Each disciplinary silo can be rigorously scholarly, but inter- multi- work often starts disorganized and gradually takes form.[3]
Professor Bucci and I continued our discussions during her recent visit to Madison which we intend to continue, including perhaps a subsequent dual blog here. The new direction might be something like looking at models of law and public policy making and reform that are durable across national settings. I’m not sure that I foresee a more scholarly fully developed version of the subject of this blog, as a book chapter perhaps – the recent history and dynamics of progressivism in the active free enterprise state in the U.S. For now, it is an application fashioned for class discussion and a collaborative work in progress.
A final preliminary word about political perspective and point of view. I write this as a progressive which means sharing a set of goals and values not shared by everyone. I subscribe to the idea of “positive freedoms” beyond rugged individualism and am convinced about empirical research that shows positive results of progressive policies like income support. The blog is intensely “political” in describing national politics. But policies are made from politics, which means that empirical analysis of law and public policy usually must describe politics in depth (the agents controlling the rules holding the status quo in place). I tried to be objective in describing such trends. The blog moves toward analytical model of politics (e.g., see Appendix A on institutional choice). But there is a point of view in my descriptions as well, for example the centrality of wealth accumulation in conservative politics. Most important, point of view is an essential component of evaluation of policy both internal to political actors and external (further explored in the blog, e.g., equity and sustainability). Evaluation compares the status quo to criteria of success (what is valuable in evaluation).[4]
Blog
As described above, this blog arose out of a class that I was invited to give by Professor Bucci, who is interested in developing the area of Law and Public Policy (LPP) and works with students who are engaged in such projects in Brazil. Professor Bucci is writing a blog accompanying this one.
We have been discussing the content of research on LPP, whether to call it an “approach” or a “field” of study. Professor Bucci said that in Portuguese “field” means academic discipline. For now, I will refer to it as an “area” of study with its own approach. It consists of interdisciplinary research on public policy, its operation, and effects, which also applies 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. To analyze these questions, the research must be inter- and multi- disciplinary. Analysis of how to modify a legal structure must account for the dynamics which holds it in place (including politics), the incentives it creates for relevant actors and stakeholders, and the effects of the incentives on reactive regulated individuals and organizations. So, for sample, Appendix A which I wrote for this blog draws on the economics of institutional choice. My work on implementation, which drew the attention of Professor Bucci and her students, draws heavily on empirical studies of implementation and more broadly on law and social science, (e.g., the reactivity of semi-autonomous social fields).[5] Of course, a U.S.-Brazil north-south dialogue involves the added dimension of comparative law and the corresponding need to become familiar with legal systems that are similar in some ways and quite different in others. It is a fusion of LPP and comparative law.
This blog is a specific application of LPP. For New Legal Realism the blog is an effort to sketch a sociology of law of the active state in the U.S. It also is in the tradition of legal history begun by Willard Hurst at the University of Wisconsin Law School.[6] Hurst held that legal history is the study of “policy in the dimension of time”[7] and studied among many other topics the development of Workers Compensation. The active state more broadly took shape over the entire span of the twentieth century, notably in the New Deal. Its policies, programs, and agencies currently are in a heightened yet typical state of flux. A longitudinal perspective is essential.
The blog is interdisciplinary LPP in the sense that it draws information together on all LPP elements (rules, political dynamics, incentives for actors, reaction to incentives by actors and organizations, downstream outcomes, etc.). But it is not “disciplinary” in a formal academic sense because it draws on an eclectic range of sources including journalism (itself an academic discipline and a common source for historians). Informal sources are useful when dealing with recent and current historical events.
The title of this blog may seem strange and contradictory. How could there be free enterprise, an active state, and progressivism? I chose the term active state referring to a bipartisan consensus in modern times that the U.S. government has a strong role assuring such outcomes as prosperity, employment, insurance against loss, and human education and development.[8] Any notion of bipartisan agreement on the role of the federal government might seem strange in a time of ferocious conflict over its role. But, as we will see, both political parties support free enterprise as a source of prosperity and jobs as well many aspects of federal law created during progressive eras that prevent disruption of the economy, insure against income loss, and support education. The conflict is real, but it is focused on certain kinds of policies and programs. A key question to be discussed is which parts of the active state and progressivism are stable and secure and which parts are under siege and at risk of retreat or even destruction.[9]
The class I taught was organized around two articles I wrote in the 1980s on legal disintegration and the theory of the state and implementation.[10] Professor Bucci’s students translated these articles into Portuguese. Both articles are based on models of legal policies being shaped by upward and downward cycles of enactment, implementation, and effects. The active state is all its aspects is constantly being revised and tweaked both in its authorization and administration. Consistent with such models, this blog will suggest that relatively small adjustments can favor progressive policies and a corresponding expansion of the general welfare, public good, and prosperity. Of course, change at the macro level would have to come from within the process, political party interactions, etc.[11] But bright lines drawn by politics can fade and blur. Demographic change may cause parties to shift priorities, and leftward policies may become more bipartisan. Human welfare and development may be accepted more broadly as a source of prosperity and employment. Increased taxes for funding progressive programs may come to be seen as relatively minor rather than an existential threat to the wealthy. Advocacy and social movements can push policy in progressive – as well as regressive — directions.
I will discuss three issues:
- Areas of overlap between progressivism and the right, bipartisan, partial and contested
- The decades long conservative movement aimed at rolling back progressive policies
- 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
(1) Areas of overlap between progressivism and the right, partial, bipartisan, and contested
Functioning of the free enterprise system and stability of the political system. Left and right have broad agreement on supporting elements of the free enterprise system but with sharp conflict over priorities. Property, contract, and lending are pillars of capitalism. Prosperity and productivity have widespread benefits and support a middle-class, creating jobs, businesses and industries. Bipartisan consensus exists around policies that insure the flow of capital such as the United States Treasury and the Federal Reserve.
But there is intense conflict around the right-wing goals of private wealth accumulation, money in politics, and privatization of government services. Wealth accumulation is a top priority of the right which explains strong resistance to the funding of progressive initiatives, especially from the greatest source of national wealth, the federal income tax. Due in part to successful efforts of the right, wealth accumulation and inequality have never been greater. The overlap is that the middle class also values wealth accumulation. Here are a couple of examples. A childcare tax credit would significantly reduce poverty and could be funded by repeal of the personal exemption in the income tax, but that exemption is important for the middle class, which makes repeal politically impossible.[12] The post WWII boom in suburban housing was financed by federally insured mortgages worth billions, and home ownership became a main source of middle-class wealth for white ethnic people. But African Americans were systematically excluded. The result is a form of systemic racism made invisible to white homeowners by residential segregation.[13] The net result is that progressive programs depend mainly on taxes on the wealthiest Americans, resistance to which is fierce and extravagantly funded.
The right also favors management control and privatization. Labor unions have been undermined for many decades. Pressure is exerted trying to privatize essential public services. Money in politics is the fuel that drives conservative politics. Those who benefit from low taxes, management control, and privatization — individuals and corporations — pour vast amounts of money into politics. Liberal politicians attempt to push in the opposite direction, supporting higher taxes on the wealthy, labor unions, and reforms of campaign financing. But until the rules change liberals also seek donations from wealthy donors.
Both sides favor political stability and accessibility for voters but with intense conflict over which side is favored, a stability that leans left or right. Politicians of both stripes favor stability because it keeps them in office and close to the levers of power, hence the dominance of incumbents in elections. It might seem strange that the right favors stability, given rhetoric that the government is the problem, but control over policies depends on control of politics and decision makers. Conservatives have sponsored organized efforts to gain control, like voter suppression and subversion, control of state governments, gerrymandering, and resistance to admission of new states like Washington, D.C. The left meanwhile puts efforts into expanding the electorate and access to the polls.
Durable regulatory state institutions and policies created in response to disruptions and aimed at stabilizing capitalism. Considerable bipartisan support exists for progressive innovations like antitrust and securities regulation which are seen as central to the functioning of free enterprise. These are institutions and policies created to control the risk of monopoly, financial crises, fraud, and so forth. Crisis management is designed to keep markets and wealth stable and hence provides a security blanket for the wealthy, workers, and the poor. Examples are banking regulation (e.g., insured deposits), monetary policy (federal reserve to the rescue), insurance regulation, bankruptcy law (admittedly skewed heavily toward creditors), housing policy (e.g.., federally guaranteed mortgages), consumer protection (e.g., FDA), and many more. Regulation of farm prices and support for farm incomes are important and a factor in right-left politics. We might also add relief from natural disasters, floods, hurricanes, forest fires, especially now that the disruption of climate change plays such a large role. Disaster relief provides shelter, property insurance, and funds for reconstruction.
Durable social programs and policies that are relatively stable and immune from political disruption. On this list belong universal public education through high school (an early creation at the state level of the property tax, compulsory attendance, and teachers’ colleges). Also public universities and community colleges. Preschool is increasingly funded by many states including in the south[14]. Also poverty programs such as earned income tax and food stamps (designed to benefit both the poor and agriculture). Also, social security for the elderly, Medicare, Medicaid, the postal service, national and state parks. Also the progressive income tax (made possible by the 16th Amendment) which allows the federal government to provide relief relying on large revenues collected mainly from the wealthy.[15] Also environmental protection of clean air and water, toxic waste cleanup, sanitary systems, etc., but so far not a carbon tax (because of fossil fuel lobbying).
Social programs subject to intense political conflict and attempted capture of political democracy. The forward edge of safety net and educational programs (which would bring us closer to social democracies in Europe) is the subject of intense political conflict between progressives and conservatives backed by special interest lobbying and campaign contributions. Universal health care, cheaper pharmaceuticals, a wealth tax and estate tax, free community college for the poor and working class, a childcare tax credit, a Green New Deal, greatly expanded low-income housing, a consumer protection agency, and so forth. Such policies are sometimes called “communist” by conservatives. Immigration is an interesting case because it fills jobs needed in the economy and fosters growth, but it is racially and politically threatening. Everyone agrees that we need a rational immigration policy – in that sense bipartisan — but compromise is perpetually stalled in conflict.
Progressive policies are popular in polling, and research demonstrates that they would produce large gains in personal welfare and collective prosperity. But the popularity and utility of these policies only intensifies conservative resistance because once popular programs are enacted they become difficult to repeal (e.g., universal health care). European social democracy would represent a moderately stable equilibrium for progressives. For conservatives there is no stable equilibrium, only a continuous effort to reduce taxes, block and degrade social welfare programs, etc., all of which then becomes the operating environment for progressives, pending the arrival of social democracy.
Programs with weak bipartisan support (e.g., civil rights and equity) but strong local experimentation and evaluation. Many programs on the drawing board capable of advancing civil rights and equity have high priority for progressives. Advocacy groups may be successful in sponsoring experimental interventions in states and local jurisdictions and validating them with rigorous evaluations. An example is the THRIVE program in Washington D.C. designed to provide relief during COVID and one of the guaranteed income experiments in cities and local communities across the country. Many of the programs are inspired by Dr. Martin Luther King, Jr., who advocated for direct cash support to combat poverty. The Urban Institute issued a report on the results of an evaluation of THRIVE and found positive results on reduction of hunger, mental health, and non-depletion of savings.[16] Recipients spent the payments largely on housing (e.g., rent), food, transportation, internet, and repayment of debt. Many were able to catch up on rental payments. In comparison to the cash payments, unemployment insurance is bureaucratic, complex, and inefficient, especially for the poor and minorities. Many recipients of THRIVE did not even apply for UI. This picture is not the one drawn by conservative critics to the effect that people receiving benefits would spend the money on luxuries, gambling and drugs.[17]
This is a good example of how progressive proposals stay alive and become potential candidates for national policies. In fact, lawmakers in Congress are considering whether to extend the enhanced child tax credit which let parents receive monthly checks of up to $300 per month last year during the pandemic. Emergency relief can become permanent policy. Change can move from the margins toward the center. Housing interventions are another area where extensive activity is in progress in states and municipalities. Environmental protection is another. To these we can add the Brazilian interventions in specific policy areas studied by Professor Bucci’s students and the hundreds of tailored institutional choice interventions documented in Ostrom’s IAD network.[18]
(2) The decades long conservative movement aimed at rolling back progressive policies
The conservative counter-revolution through Nixon, Reagan, Trump. Reaganism was a coherent strategy, a reaction against the liberal 60s and 70s and redistribution of wealth for social welfare policies that we now think of as progressive. Reagan was deeply schooled in praise for the free enterprise system as the solution for everything, for example, in his polished orations initially sponsored by General Electric. One part of the strategy was distrust of the national government which alone has the resources for significant redistribution through the progressive income tax. You may remember his quips that government is the problem not the solution, and the most terrifying words ever spoken were “I’m from the government and I’m here to help.”[19] These words are the antithesis of the progressive philosophy that the active state has been built to expand prosperity and solve national problems. It was a negation of an affirmation. Tax cuts became a way to “starve the beast” (the federal government and its social programs).[20]
The practical political strategy was reliance on racial, rural and conservative religious resentment of multi-cultural and multi-racial cities and the “undeserving poor.”[21] This was the “silent majority” of Nixon, and the moral majority of evangelist Jerry Falwell, which brought a drug war against blacks, browns, and hippies,[22] and political mobilization of Evangelical Christians over abortion. A politics of resentment was born and has evolved into a seemingly perpetual culture war.[23]
On the legislative front, the Republican Party organized a nationally coordinated effort to gain control of state legislatures and governorships. It included national models for conservative legislation in the states disseminated through ALEC.[24] The effort caught the Democratic Party flat footed, and GOP made great strides. For example, Wisconsin’s Scott Walker succeeded in repealing the union of state government workers and the GOP passed right to work laws in many states.[25]
The parallel counter-revolution over control over legislation, the Supreme Court, judiciary, and constitutional law. This is a decades long immensely successful bounteously funded campaign to build institutions that push legislation and judicial decisions in a conservative direction. The starting point is thought to be the Powell Memorandum[26] in 1971 called “The Attack on the Free Enterprise System” written before Lewis Powell was appointed to the Supreme Court by Nixon. The memo saw an existential threat in such things as Nixon being forced by a democratic congress to pass the EPA and OSHA acts, plus the black and brown civil rights movement, plus leftist college campuses and reformers like Ralph Nader. Powell called for long range planning, funding, and organization, including lobbying and litigation by the Chamber of Commerce. Soon followed the Business Roundtable and a succession of right wing think tanks funded by conservative foundations (Koch, Bradley, Olin, etc.). The Chamber of Commerce Litigation Center became the most successful litigant before the Supreme Court. As Supreme Court Justice, Powell cast votes in favor of Roe v. Wade and other liberal leaning decisions, but he also voted against limits on campaign spending[27] leading eventually after he left the Court to the Citizens United decision which opened campaigns to corporate money.[28]
A second pillar was the Federalist Society[29] following the Powell memo’s advice that, “The judiciary may be the most important instrument for social, economic, and political change” in all of government. The Society sponsored the “federalism” doctrine protecting states’ rights and the constitutional theory of originalism, which allowed selective interpretation of the meaning of constitutional language and decried reference to current social conditions.[30] Federalism eventually became the foundation of selective constitutional invalidation of social welfare legislation such as striking down part of Obama’s Affordable Care Act, limits on voting rights legislation, and the constitutional immunity of extreme partisan gerrymandering.[31] Currently, all six conservative members of the Supreme Court are members of the Federalist Society, and the Society has become the gatekeeper for Republican nominations to the Court, aided and abetted by the confirmation tactics of Senator Mitch McConnell.
(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 presidential autocracy
We now have two trends in progress that need to be disentangled and related. One is the movement toward single party rule. Resistance to democracy intensified when republicans came to understand that they would never win another national election if everyone were allowed to vote because of increasing racial and ethnic diversity and left-leaning younger (“woke”) voters.[32] What followed were waves of voter suppression and planned subversion.[33] Suppression makes voting more difficult especially for urban poor and minorities. Subversion consists of spreading distrust about the integrity of elections and laying plans for overturning democratic victories through such means as control of election officials who have pledged not to repeat lawful certifications of the last presidential vote. One part of the crisis was based on ambiguities in the constitutional language setting up the electoral system[34] which theoretically may allow state legislatures to certify rival slates of electors, potentially throwing presidential elections to the House of Representatives,[35] or even to ignore the popular vote.
The other is a trend toward authoritarianism supported by right wing populism in the base. It is argued that neoclassical neoliberalism led to loss of domestic jobs opening the door to resentment of progressive legislation and a trend toward authoritarianism long associated with “the politics of exclusion.”[36] Resentment against elites and government may lead to political violence.[37] From a progressive point of view the anger is misplaced. Tax cuts for the wealthy will not bring back jobs, and a Green New Deal would.[38] But for the moment populist anger could lead in one of two directions. One is continued appeal to populist resentment by the GOP in its drive toward single party rule and control of political institutions. The other is toward a coup leading to autocratic rule by the president. Former president Trump seemed more than willing to go down this path.[39]
Wishful thinking on my part perhaps, but permanent single party rule signaling the end of progressivism or an authoritarian coup both seem unlikely. Single party rule is unstable, constantly subject to election turmoil. GOP hegemony entails control of both national and state governments which requires considerable resources and organization in the face of constant resistance from the left. Even if the Supreme Court holds that gerrymandered state legislatures can control presidential elections free of review by courts and gubernatorial vetoes (granted a serious blow to democracy),[40] that rule would apply to democratically controlled states as well. States with legislatures under GOP control might change over time despite gerrymandering. Power could shift in red states. Presidential power would remain checked by Congress. The conservative majority of the Supreme Court might become less partisan (low odds because of lifetime tenure). Rural areas may come to see merit in progressive policies rather than focusing so much on culture wars. The durable regulatory institutions described in #2 and #3 above would probably survive because of bipartisan support. Not much would change in safe blue states like New York and California. Blue cities would remain as important actors. Problems would arise requiring active progressive solutions. Instability and conflicts could well produce financial crises which then require federal relief.
As for a coup d’état, theoretically an authoritarian strong man[41] like Trump could seize on instability and declare martial law either permanent or temporary (as in episodes of martial law directed against the left and blue cities). In the extreme, a coup supported by the military could produce a fascist tyranny and crony capitalism. Presidential autocracy in the U.S. would be unmapped territory. But unchecked presidential rule probably would not go down well with American business or conservative politicians whose status depends on real power in the House and Senate. GOP politicians sought control of the presidency with all its powers, not to be controlled by it.
Conclusion: Prospects for Progressivism in the Active Free Enterprise State
The active state can be seen as fragmented and unstable but at the same time structurally sound. The unifying force is awareness of the common good and general welfare in an economy which requires a high degree of both risk and security and recognition of the interdependence of multiple aspects of economic, human, and social welfare, amid rapid change such as the physical and economic environment. Progressivism holds its ground amidst reversals, intermittently advancing policies for the public good at the national, state, and local levels. Segments of the populace may resent government ideologically, but problems arise and invite solutions. Speaking as a progressive myself, hopefully the current backlash against racial justice and the cultural shock of social change like LBTGQ will diminish. Gradually, hopefully we will come to see ourselves as one people. Gradually, hopefully the beautiful goal of freedom will be further expanded from rugged individualism and defiance of restraints (as with resistance to vaccinations and masks) toward an understanding of the positive freedoms created by laws operating in the public interest and common good. In the long run, progressivism has a deep well of strength because its policies are popular, shield people from harm, and create new levels of freedom for individuals and families. Nothing can happen overnight. Many of the deep divisions being stoked today have a very long history, but change does occur. As progressives we will move forward understanding our deepest values.[42]
Appendix A
Institutional Choice and the Active Free Enterprise State
I think of institutional choice as involving a collection of people who share common outcomes, working under rules that produce negative consequences or alternatively rules better designed to improve collective welfare. When fisheries become depleted, for example, unregulated competition — rules of property and free enterprise — may create a situation where individual fisherman gain nothing by reducing their individual catch, and they collectively and rationally deplete the common stock — or rules that create limits on the extent of fishing. I wrote an article some time ago about the consequences of different arrangements of rules and decision makers in education.[43] Elinor Ostrom’s multi-level framework of institutional choice seems compatible with this blog. Politics in the active national state takes place in the ‘constitutional tier’ which then affects policy decisions, which then affect ground level implementation and outcomes:
“An institutional framework should identify the major types of structural variables present to some extent in all institutional arrangements but whose values differ from one type of institutional arrangement to the next. The IAD [Institutional Analysis and Development] framework is a multitier conceptual map. One part of the framework is the identification of an action arena and the resulting patterns of interactional outcomes and the evaluation of these outcomes. The problem could be at an operational tier where actors interact in light of the incentives they face to generate outcomes directly to the world. [three examples given are designing incentives to overcome a free rider problem, organizing local users of a forest, and investing in irrigation infrastructure which enhances the capabilities of local farmers]. The problem could also be at a policy (or collective choice) tier where decision makers repeatedly have to make policy decisions within the constraints of a set of collective choice rules. The policy decisions then affect the structure of arenas where individuals are making operational decisions and thus directly impacting a physical world. The problem could as well be at a constitutional tier where decisions are made about who is eligible to participate in policymaking and about the rules that will we be used to undertake policy making.” [44]
While institutional choice at the macro level of the active state involves political parties as actors, implementation at the ground level involves regulated organizations with similar upward and downward cycles of influence operating on the enactment and administration of regulatory regimes and rules.[45] A simplified schema of politics, institutions, and rules in the active state is given in Figure 1.
Fig. 1
A Framework of Decisions in the Active Free Enterprise State
| Physical, economic, and political environment | Demography, economy, social movements, campaign donations, constituencies, media, lobbying, think tanks |
| Actors: Political parties | Democrat, Republican |
| Goals of parties | Conservative, bipartisan, progressive |
| Means of Influence | Organized strategies, voter mobilization |
| Decision making institutions | Legislatures, executives, administrative agencies, judiciary |
| Policies and decisions | Taxes, regulations, safety net, etc. |
| Evaluation of outcomes | E.g., sustainability, equity |
The basic structure of Fig. 1 is that actors, left and right political parties, have an environment which affects their capacities and preferences, goals for the state, means and methods by which they exert influence on decision making institutions, and outcomes of influence (policies, rules for voting). The outcomes are then recognized and processed as part of the political environment (arrows in Fig. 1). Evaluation criteria are both internal to the parties and external (not yet internal to the process). Parties have both common and contested goals which lead to areas of consensus and conflict. Lawyers have roles everywhere in the active state both inside and outside the government: drafters of legislation and administrative rules, advocates before administrative agencies and courts, judges, hearing officers, lobbyists, corporate lawyers representing clients, and so forth
Missing from Fig. 1 is the role of intermediate organizations in creating models for national decision making and helping organize and support local decision makers. In fact, the multitude of local programs and associated research studies comprise a kind of national policy mosaic even when not adopted by the central government, sanitary systems, environmental initiatives, for example. Not everything has to move to the center.[46]
Evaluation criteria are those held by the parties but also objective standards such as sustainability and equity. Evaluation along with social advocacy is essential for change and reform. Many of the examples described in the Ostrom article cited above deal with discrete policy clusters such as decisions about scarce resources (water, forests, fish, etc.). Evaluation research is used to identify changes in the institutional arrangements that can work productively toward common ends in each institutional context (her IAD – Institutional Analysis and Development — a research and development model). How policies might be modified to produce more sustainable and equitable outcomes is an example of an evaluation question relevant to the active state.
Appendix B
THE LAW AND PUBLIC POLICY (LPP) APPROACH IN BRAZIL, Professor Maria Paula Dallari Bucci (unpublished paper in submission)
ABSTRACT
The emergence of the social state in Brazil and democratization led to the Constitution of 1988 and triggered a new relationship between the law and the state. This was partly inspired by the American New Deal, and Europe’s post-war period. Following these patterns, legal contribution to public policies is based on the coordination of large-scale government action to face complex problems. Taking from Lowi the statement that policies determine politics the resilience of the core of Brazilian social policies in the authoritarian period after 2018 is supported by the outcomes of social policies in the thirty years that followed the Constitution. The Law and Public Policy (LPP) approach helps to explain this since its object is governmental action and the legal/institutional arrangements typical of the social state. The article reviews the scarce bibliography on law and public policy from the 1990s when this connection first arises. Later is presented a LPP Framework, which enables the legal analysis to deal with nonlegal issues that influence legal norms and procedures and reversely are influenced by them. The framework provides a cognitive scheme to examine the main features of an action program: i) the official name of the program; ii) government partisanship; iii) normative grounds; iv) legal-institutional design; v) government agents; vi) nongovernmental actors; vii) legal articulation mechanisms; viii) scale and target audience; ix) economic dimension of the program; x) implementation strategy; xi) actual operation of the program; xii) critical aspects of the legal-institutional design. The framework is useful for comparing programs in different periods or historical experiences, as has occurred since the framework was first published in Brazil. The framework provides analytical skills useful for mapping trends that advance the LPP approach, in three ways: i) issues of legal organization specific to social rights matters (education, health care, social assistance, housing, security, etc.) in a sector-by sector basis combined with a common structuring perspective; ii) standards of legal control of public policies developed by the judiciary, the Public Prosecution Service, the Public Attorney’s Office, the Public Defender and the Courts of Auditors; iii) combinations of the LPP approach with traditional disciplinary fields such as Administrative, Constitutional or Procedural Law.
[1] Voss Bascom Professor of Law Emeritus, University of Wisconsin Madison.
[2] http://pos-graduacao.direito.usp.br/orientadores/maria-paula-dallari-bucci/ https://www.researchgate.net/profile/Maria-Paula-Bucci Professor Bucci has an interesting paper currently being submitted for publication, The Law and Public Policy (LPP) Approach in Brazil. See an abstract of the paper in Appendix B.
[3] https://en.wikipedia.org/wiki/Tuckman%27s_stages_of_group_development (forming, storming, norming, performing); https://en.wikipedia.org/wiki/Self-organization#:~:text=Chaos%20theory%20discusses%20self%2Dorganization,%2C%20robotic%2C%20and%20cognitive%20systems. (self-organization toward spontaneous order, chaos theory, cybernetics).
[4] I spent a considerable part of my career doing evaluations of educational interventions. Research literature on the role and proper use of values in evaluation is vast. Choice of a value structure is itself consequential and involves value judgments, e.g., program goals, efficiency, equity, budgetary impact, community involvement, usefulness for practitioners, impacts on stakeholders, methodological rigor, cost benefit, cost effectiveness, short term, long term. Here is a quick introduction about an evaluation of a policy in Australia. https://www.themandarin.com.au/76565-whats-word-finding-value-evaluation/
[5] Moore, Sally Falk. “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” Law and Society Review, vol. 7, no. 4 (summer, 1973), 719-746. Cf. Niklas Luhmann’s theory of autopoiesis in self-referential social systems where communications reproduce communications. https://www.zfog.bwl.uni-muenchen.de/files/mitarbeiter/paper2004_2.pdf.
[6] I recently edited a book, Legal Realism to Law in Action, Innovative Law Courses at UW-Madison, Quid Pro Books (2021), containing articles and interviews about Hurst and teacher/ scholars in other fields in the same era as Hurst. Podcast: https://wilawinaction.law.wisc.edu/2022/01/27/episode-24-bill-clune-and-legal-realism-into-legal-action-innovative-law-courses-at-uw-madison/ See the Preface to the book https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3991244
[7] Ernst, D.R. (2000). Willard Hurst and the Administrative State: From Williams to Wisconsin, 18 Law & Hist. Rev. 1-36 (2000), 22-23. This is the way Hurst described legal history in Law and Society, a study of the development of workers’ compensation over time. The book doubled as a legal process book because of its study of administrative agencies.
https://scholarship.law.georgetown.edu/facpub/592/
[8] Ackerman, Bruce A (1983). Foreword: Law in the Activist State. 92 Yale L.J. 1083, no. 7, 1083-84. “By saying that we live in an activist state, I mean…an awareness that our society’s existence depends upon a continuing flow of decisions made by politically accountable state officials…the belief that the nation’s economic welfare depends upon steering decisions made in Washington, D.C.- both at the macroeconomic level and through the regulation of …sectors of economic life. Finally, there is the widespread acknowledgment that the distribution of wealth and status is a central issue for political debate determination… It is within this context … that gained historical reality during the administration of Franklin Roosevelt — that I mean to situate the evolving legal culture.”
[9] On the history of U.S. progressivism see https://en.wikipedia.org/wiki/Progressivism_in_the_United_States
[10] Clune, W.H. Legal Disintegration and a Theory of the State,” chapter in Critical Legal Theory: A German-American Debate (Nomos, 1989)
https://www.elgaronline.com/view/edcoll/9781788117760/9781788117760.00012.xml
“Clune, W.H. A Political Model of Implementation and Implications of the Model for Public Policy, Research, and the Changing Roles of Law and Lawyers, 69 (1) Iowa Law Review 47 (1983). See also Clune, W.H. “A Political Method of Evaluating the Education for All Handicapped Children Act and the Several Gaps of Gap Analysis,” (with Mark Van Pelt), 48 Law & Contemp. Prob. 7 (1985).
[11] A general framework compatible with this blog that encapsulates the political dynamics of change and stability is Elinor Ostrom’s survey of institutional choice research. Ostrom, Elinor. Institutional Rational Choice, An Assessment of the Institutional Analysis and Development Framework, in Sabatier, P.A. (Ed.), Theories of the Policy Process. See Appendix A.
[12] See Professor Timothy Smeeding,
https://pbswisconsin.org/watch/university-place/inequality-of-opportunity-in-an-unequal-country-86hhyu/
[13] See Race, The Power of an Illusion: How the Racial Wealth Gap was Created, https://vimeo.com/133506632 See also https://www.nytimes.com/2022/03/09/climate/redlining-racism-air-pollution.html?referringSource=articleShare (environmental damage and health risks as a pernicious effect of redlining affecting poor and minority neighborhoods).
[14] https://www.readingrockets.org/article/pre-k-across-country https://earlyedgecalifornia.org/wp-content/uploads/2021/03/Universal-PreK-Programs-in-the-United-States-and-Worldwide.pdf
[15] The poor and working class in the U.S. pay little federal income tax but do pay a regressive payroll tax for social security and regressive state taxes such as the sales tax.
[16] https://www.urban.org/research/publication/evaluation-thrive-east-river
[17] Senator Joe Manchin said worried that his constituents would spend government aid on drugs. https://sports.yahoo.com/joe-manchin-said-constituent-complained-222930620.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAHaHpF3ftHdhKHUt56KZoyzojp-4aq32nGeo67mc-MpsKJWJQ7Q2C_hyP9N_e3l0q1WH36l3MrGuX63X5Z5iltRFXfjSqrK0yfZj8MzLaghW_sXBiSXeihLROv3gSRp0fqBFZTFEHBVlvICKG7ZJ6HKjKgtSgxx2FFWFGBkcYOQU
[18] See Appendix A.
[19] https://en.wikipedia.org/wiki/Ronald_Reagan_Speaks_Out_Against_Socialized_Medicine Reagan warned that Medicare were passed “behind it will come other government programs that will invade every area of freedom as we have known it in this country until one day as Norman Thomas said we will wake to find that we have socialism.” Under this scenario, Reagan says, “We are going to spend our sunset years telling our children and our children’s children, what it once was like in America when men were free.” Note the complete negation of the positive freedoms produced by programs like Medicare.
[20] See https://en.wikipedia.org/wiki/Starve_the_beast
[21] Reagan appealed to the stereotype of the “welfare queen” based on a story about one woman in Chicago who was later arrested for welfare fraud https://www.pbs.org/newshour/show/the-true-story-behind-the-welfare-queen-stereotype https://newrepublic.com/article/154404/myth-welfare-queen
[22] https://www.vox.com/2016/3/22/11278760/war-on-drugs-racism-nixon
[23] See Kramer, K.J. (2016). The Politics of Resentment, Rural Consciousness in Wisconsin and The Rise of Scott Walker, University of Chicago Press. https://press.uchicago.edu/ucp/books/book/chicago/P/bo22879533.html and https://lareviewofbooks.org/article/past-progressive-dan-kaufmans-the-fall-of-wisconsin/ (book review Dan Kauffman’s The Fall of Wisconsin, The Conservative Conquest of a Progressive Bastion and the Future of American Politics (2019).
[24] https://www.alecexposed.org/wiki/ALEC_Exposed
[25] https://en.wikipedia.org/wiki/Right-to-work_law Such laws prohibit laws requiring unions or that nonunion members to contribute to union costs.
[26] https://www.huffpost.com/entry/the-rightwing-legacy-of-j_b_11521804
[27] Powell joined the per curiam opinion of the Court in Buckley v. Valeo. https://www.oyez.org/cases/1975/75-436 https://en.wikipedia.org/wiki/Buckley_v._Valeo
[28] https://en.wikipedia.org/wiki/Citizens_United_v._FEC
[29] https://www.whitehouse.senate.gov/news/speeches/the-scheme-speech-5-the-federalistsociety
[30] See Schwrtz, D.L. (March 2022). Mr. Madison’s War on the General Welfare Clause, arguing that James Madison’s position that the original intent of the Clause does not empower Congress to legislate on all national matters is fallacious, as is his theory that the Constitution only guarantees enumerated powers (enumerationism), and that it is based on the federalist “compact theory” that the states not the people of the U.S. are the true parties to the Constitution. Professor Schwartz concludes that James Madison cannot be trusted as a source original intent on such matters.
[31] See Tribe, Laurence H., Politicians in Robes, vol. LXIX, no. 4, The New York Review of Books (March 10, 2022). In a review of a book by retired liberal Supreme Court Justice Stephen Breyer, Professor Tribe is skeptical about Breyer’s embrace of the view that jurisprudential differences on the Court (e.g., originalism v. evolution in light of changing circumstances) explain decisions which therefore are largely free of ideological and political bias, as opposed to the idea that doctrines serve as proxies for ideological views. Also Breyer’s fondness for “the noble lie,” that the legitimacy and authority of the Court depends on its being accepted as nonpolitical and non-ideological. Tribe points out that “Through most of the Court’s history, we have seen it rule in ways that undermine [democratic] values. The only significant exception was the remarkable period from the mid-1950s to the late 1970s. Today the Court appears once again set on an antidemocratic trajectory, one more deeply entrenched and less amenable to a change in course.”
[32] https://www.businessinsider.com/us-republican-president-mail-in-voting-lindsey-grahamwarns-2020-11
[33] Hasen, Richard L. Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States, Legal Studies Research Paper Series No. 2021-50,
[34] https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/350
[35] Vice President Pence certified the election results rejecting proposal of Trump and others that he had the unilateral power to refuse certification. https://apnews.com/article/mike-pence-donald-trump-election-2020-84ff467d9ff5bfaad084e274f69ac521
[36] Putzel, James (2020). The ‘Populist’ Right Challenge to Neoliberalism: Social Policy between a Rock and a Hard Place https://onlinelibrary.wiley.com/doi/epdf/10.1111/dech.12578 The article controversially asserts that such social legislation was “phase two” of neoliberalism despite its origins long before the Reagan Thatcher neoliberal revolution. But the point about popular resentment of government, exclusionary politics, and authoritarianism seems correct.
[37] According to two Harvard political scientists, four markers of authoritarianism in the U.S. met by Trump are: rejecting or showing weak commitment to democratic rules, denying the legitimacy of political opponents, encouraging or tolerating violence, and a readiness to stifle or limit civil liberties of opponents, including media. https://www.newsweek.com/harvard-political-science-professor-donald-trump-authoritarian-how-democracy-778425
[38] https://en.wikipedia.org/wiki/Green_New_Deal
“The political outliers (and outsiders) deploying populist politics of the right who have achieved power at the national and sub-national levels in the 2010s have all done so with promises … to promote the interests of hard-working deserving native citizens. In what seems almost a masterful ‘confidence trick’, they have come to power backed by alliances of business interests often promoting greater deregulation of domestic markets than the neoliberals before them. In their campaigns for political power, the right populists did not promise expansive social programmes. Instead, they sought to win support by demonizing the ‘undeserving poor’, whether they were ‘illegal immigrants’, ‘dangerous Muslims’, ‘lazy’ or ‘criminal’ poor, portrayed as having received unfair assistance or protection by liberal elites in the past.” Putzel, op. cit. p 428
[39] https://www.amazon.com/dp/B098PF8D41/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1 Peril, by Bob Woodward and Robert Costas
[40] See https://slate.com/news-and-politics/2022/03/supreme-court-democracy-independent-state-legislature.html
[41] https://www.amazon.com/dp/B08BVZMDWW/ref=dp-kindle-redirect?
_encoding=UTF8&btkr=1 Strongmen: Mussolini to the Present
[42] A book by the late Todd Gitlin, “The Sixties,” ends with a quote from Rabbi Tarfon, who lived around the first century A.D.: “It was not granted you to complete the task, and yet you may not give it up.” Op Ed obituary by Michelle Goldberg https://www.nytimes.com/2022/02/07/opinion/todd-gitlin-liberal.html
[43] Clune, W.H. Institutional Choice as a Theoretical Framework for Research on Educational Policy, Educational Evaluation and Policy Analysis Summer 1987, Vol. 9, No. 2, pp. 117-132
[44] Ostrom, Elinor. Institutional Rational Choice, An Assessment of the Institutional Analysis and Development Framework, in Sabatier, P.A. (Ed.), Theories of the Policy Process. Westview Press (1999), 26-27.
[45] “Markets are the most frequently studied institutional arrangements that achieve coordination by relying primarily on rule-governed competitive relationships among organizations. Rule governed competition among two or more political parties is considered by many analysts an important requisite for a democratic polity. Less studied, but potentially as important a means for achieving responsiveness and efficiency in producing public goods and services, are arrangements that allow rule-oriented competition among two or more potential providers of public goods and services.” Ostrom op. cit., p. 44.
[46] A good example of state, regional, local problem solving rife with legal issues such as zoning, tax subsidies, and property taxation is affordable housing reform in New York City. https://www.nytimes.com/2022/03/28/opinion/new-york-affordable-housing.html (allowing garage and basement apartments, multifamily occupancy, lower more equal property tax on large apartment buildings where most low-income people live, inexpensive housing near rapid transit stops, tax incentives amended to include lower income buildings, etc.). Governor Hochul and the state legislature in Albany are active in regional solutions and to this point are not caving to suburban resistance.