Building a law of abundance
The artificial scarcity plaguing our economy is deeply rooted in a "law of constraint" built over half a century. How do we unwind it?
The idea of abundance is everywhere. Prominent new books by Ezra Klein and Derek Thompson, Marc Dunkelman, and Yoni Applebaum bemoan the artificial scarcity created by sclerotic institutions and explore paths out. New York Times columnist David Brooks has declared an era of abundance to already be sweeping through the intellectual world: “Over the past several years, various versions of something called the abundance movement have been growing at libertarian-leaning think tanks like the Niskanen Center, at right-leaning tech hubs like Andreessen Horowitz and at a wide array of left-leaning think tanks.”
The challenge now for abundance advocates is to turn intellectual ferment into durable power. Much of this work will be political — building alliances of supportive interests, injecting abundance themes into elections, and forging legislative coalitions. But as the movement well knows, in America, victories in the arena of politics are tentative until they are confirmed in the arena of law.
Law, broadly understood, is at the core of the abundance movement’s analysis of what has gone wrong in the American economy. Most of the thinkers associated with the movement point to some combination of anti-competitive rules and processes driven by concentrated interests on the one hand, and an absence of state capacity to design and manage large projects on the other. Both of these obstacles to abundance are rooted in fundamental changes in American law that picked up steam in the 1970s and have reduced the productivity of both the private and public sectors ever since.
Some of these changes can be reversed through brute statutory revision. But the “Law of Constraint” that emerged over a half-century ago is deeply rooted. It consists not only of rules on the books, but also implicates how lawyers are trained and how we understand what it means to do lawyering in the public interest. Moving toward a “Law of Abundance” will require that we re-examine wide areas of the law as a system, focusing on how different collections of practices either generate what Nick Bagley has called a “procedure fetish” that impedes new initiatives or, alternatively, a bias toward action (even where that means taking on greater risk).
In this issue of Hypertext, we ask what changes will be required to move us from the old system into the new. (Most of the essays presented here are based on papers that were written for the Center for Law and Society at Johns Hopkins and funded by Arnold Ventures, which is also a Niskanen Center supporter.)
We begin by clarifying the stakes in an essay by David Schleicher of Yale Law School. In rebutting critics of the recent crop of abundance books, Schleicher argues that the movement has an incisive vision of political economy that takes power seriously and makes consequential recommendations, but does not claim to offer a full-spectrum economic program.
Tom Burke of Wellesley and Jeb Barnes of the University of Southern California begin our exploration of how the law creates scarcity by connecting Nicholas Bagley’s arguments against “the procedure fetish”—central to the abundance movement—to the deep roots of proceduralism and “adversarial legalism” in the U.S. To dislodge litigation as a policymaking tool, they argue, “Abundance liberals must find other ways to generate authority that people can accept.”
Dan Davies then uses cybernetics, which we covered in Volume VIII, to show how the system of adversarial legalism reinforces itself in practice. It takes very little actual NIMBYism, Davies argues, to create an industry of professionals dedicated to warding it off through expensive and time-consuming reviews. The odd result, he argues, is that developers effectively end up financing their own opposition.
Making progress in this dysfunctional system will require strategic changes, as our next two essays show.
Alexandra Klass and Matthew Appel of Michigan Law School argue that in the energy realm, abundance liberals should avoid an “all of the above” approach and explicitly seek a coalition with clean-energy environmentalists.
Meanwhile, Zachary Liscow of Yale Law School makes the case that building credibility for those alternative forms of authority Burke and Barnes describe is possible if reforms “improve broadly representative front-end participation but reduce back-end litigation.”
To put such ideas in motion, Anika Singh Lemar of Yale Law School writes, we need to train a new generation of public interest lawyers who will practice the law of abundance, adapting the traditional law school “clinic” model to this new field.
Beyond the realm of infrastructure and day-to-day policy, Alex Tabarrok asks what lessons we can learn about public-private partnerships from the stunning success of Operation Warp Speed — but cautions that the powers authorized for that project should not be extended beyond the crisis context.
Remaking the law for an abundant future is a daunting charge, but we close with an essay that offers some inspiration. As Rick Hills of NYU Law and David Schleicher argue, YIMBYism is a “legal tradition” in America that dates back to the Founding era’s rejection of a landed gentry and the property law regime that created it. The law of abundance may be confronting a decades-old culture of blocking progress, but it is tapping into a deep-rooted American ethos of supporting builders and people chasing opportunity in new places.
Steven Teles is Professor of Political Science at Johns Hopkins University and a Senior Fellow at the Niskanen Center. David Dagan (@daviddagan.bsky.social) is Director of Editorial and Academic Affairs at the Niskanen Center. Matthew Meyers (@matthew_meyers5) is Abundance Coordinator at the Niskanen Center.
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