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51 New York Law School Law Review 801 (2006/07)


Especially after 1980, our belief in and our use of law to solve societal problems seemed to decline precipitously, well beyond the ebb and flow of political trends and tastes. Beginning in earnest in the 1980s, political discourse increasingly treated law and markets primarily in binary terms. You could have one or the other, but not both. More law meant less markets and vice versa. When it came to choosing between law or markets, the tide clearly had shifted. If injustices in the 1970s were greeted with the slogan "there ought to be a law", that approach to solving problems was now replaced with a new refrain: "there ought to be a market". In this essay, I address the question of why this turn to markets has occurred. I argue that we are not dealing with simply a swing of the political pendulum that will ultimately be reversed by a change in the party in power. The reasons run deeper than electoral politics and go to the fundamental changes that have occurred in the ways that states and markets now interact. I argue that this is, in fact, a major byproduct of a highly politicized, neo-liberal view of globalization in the United States, one that ultimately sees the global economy as a set of relentless, hegemonic forces that almost always require that policy makers favor markets over law. This essay suggests some of the ways that we can invoke law to help create the democratic means, flows of information, and political processes necessary to enable individuals to function not only as consumers but as effective, informed and engaged citizens as well.