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Economic Development and The Problem With The Problem-Solving Approach

Publication Title

Washington University Jurisprudence Review

Abstract

Scholars and practitioners alike have recently pointed to the idea of a “new moment” in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high “neoliberalism,” associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new round of experimental work going beyond the old patterns of “free competition—state intervention” discourse. This Article affirms the notion of a new moment, but is pessimistic about its meaning. After surveying two phases in the intellectual history of global law and development, the Article turns to what Duncan Kennedy has described as the “third globalization,” a statement on the characteristic qualities of contemporary legal thought. In setting out these qualities, I argue that they constitute a form of legal pragmatism that is both new and illustrative of our present condition. As for what this pragmatism means in terms of providing a post-neoliberal direction for law and development, the argument surveys the current exchange between two rival forms of pragmatic governance: minimalism and experimentalism. The conclusion is darker than we might like: although there does indeed seem reason to believe in a new turn towards problem-solving in the field of economic development, it is a turn in which our legal pragmatism too often promotes the old discursive patterns from which we had hoped to escape.

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