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University of Chicago Law Review

The New Capitalism, the Old Capitalism, and the Administrative State

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2013

Abstract

This Essay concerns the evolving relationship between the economy, specifically the economy of the British North America that became the United States, and the methods society deployed to legitimate, control, and channel economic behavior, especially religion and law. Using the recently published work of three eminent academics—Benjamin Friedman, Jonathan Levy, and William Novak—it addresses the changes in thought necessary to legitimate acquisitive economic behavior and the consequent centering of law as the secular replacement for religion. Having unleashed that behavior, society, yet wary of it, at least in its extreme forms, had to develop mechanisms to channel that behavior in ways that created social benefit and limit its antisocial extremes. That behavior became known as capitalism. The state had always regulated economic behavior, of course, but the purposes of regulation, and its mechanisms, changed as capitalism evolved, and as understandings of capitalism evolved in tandem with the economy itself.

In the United States, that evolution was marked by a continuing attention to democratic aspirations, aspirations both political and egalitarian. As capitalism fostered wider markets, as its evolution embodied industrialism and commercialism, it created problems that the regulatory state could not handle. In America, the transition from regulatory to administrative state was complicated by its federal structure and background democratic egalitarian yearnings. Friedman, Levy, and Novak illustrate and elucidate aspects of that evolution. This Essay suggests that reading them together explains more than each separately and ends by noting how the tensions they explain usefully add to our understanding of American law, and, coincidentally, the potentially transformational administrative law decisions of the Supreme Court in the 2023–2024 term.

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