Public Law & Legal Theory
In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth centuries. Professor James Q. Whitman’s book review in the Harvard Law Review criticizes The Illusion of Free Markets for engaging the writings of Michel Foucault on punishment, and for being surprisingly callous about the problem of mass incarceration. In this response to Professor Whitman’s review, Professor Harcourt clarifies the theoretical stakes of the debate in order to demonstrate, first, that the book represents an attempt to get beyond both the Chicago School and Foucault's concept of discipline. Second, Harcourt returns to the problem of mass institutionalization to argue that a more nuanced reading of the available data is necessary. Overall, Professor Harcourt stresses the importance of questioning what so often passes as received wisdom.
Bernard E. Harcourt, "On the American Paradox of Laissez Faire and Mass Incarceration" (University of Chicago Public Law & Legal Theory Working Paper No. 376, 2012).