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Defending the State: A Skeptical Look at “Regulatory Reform” in the Eighties, 61 University of Colorado Law Review 517 (1990)


In the Eighties those of us who believe that the state should correct the failures of the private market and redistribute income have taken a beating. At the political level we have had to confront a decade of Republican control of the Presidency. The counterweight imposed by the judiciary has steadily eroded as these same presidents have appointed conservative judges. A whole generation of liberal, policy-oriented scholars who came to maturity in the sixties has seen its hopes for a life of public service undermined by changes in the political landscape.

Life has not been much more comfortable in the law schools. There we have been hemmed in by conservative scholars using the lessons of public choice theory to undercut arguments for public intervention and by Critical Legal Studies scholars who argue that since everything is politics, reasoned argument is pointless. Although their attacks are rooted in vastly different ideologies, these critics converge in viewing a progressive, reformist agenda as naive, wishful thinking. Both the right and the left stereotype economics, which has been at the heart of progressive reform for a hundred years, as a conservative, laissez faire movement.

But progressives should not retreat into self-pity. Some hopeful signs suggest both that policymakers are beginning to recognize the force of progressive arguments and that legal scholarship and education are moving toward a richer interdisciplinary synthesis.

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