Institutional Economics and Critical Race/LatCrit Theory: The Need for a Critical 'Raced' Economics

Abstract

Critical race theory and LatCrit theory have made tremedous strides in deconstructing the operation of racialized power and the processes that render it invisible to the individuals at the sites at which power is concentrated and exercised. In constructing its analysis, this critical movement has often relied on interdisciplinary sources. However, our ability, as critical legal scholars, to formulate appropriate praxis methodologies traditionally has been limited, however, by the historic conflict between the competing jurisprudential schools of critical legal studies and law and economics. Orthodox law and economics, based on the neoclassical economic paradigm has corrupted the legal process by removing any genuine considerations of ethics and morality from its analysis and by its confusion of an optimal result with a just result. If LatCrit and critical race theory are to create lasting change reaching to the hearts and roots of the subordination project they must overcome their resistance to economic analysis as a mode of interdisciplinarity. Economics and economic concerns have so thoroughly infiltrated the law that it is difficult to discuss any topic of law without a concomitant descent into considerations of efficiency, utility and rationality, goals, values, processes keyed to the conservation of the present allocation of assets, resources, and oppotunities. Since these discussions cannot be avoided, they must be embraced; for unless we do so, we will be unable to engage in effective praxis around the issue of the just distribution of assets, resources and opportunities. Thus, the essay argues for the development of a critical "raced" economics, based on institutional economic theory to confront and ultimately supplant the neoclassical economic paradigm as the economic tool of critical theorists.

Keywords: institutional economics, critical race theory, LatCrit theory, law, economic analysis, critical "raced" economics