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Yochai Benkler, Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society, SSRN (Oct. 26, 2023).

Abstract: Throughout the history of capitalism law has been a major component of the social and material context that structured social relations of production, creating and legitimating a distinct combination of freedom and coercion, opportunity and imperative, that has been the driving dynamic of capitalism ever since. It did so by structuring access to natural resources for purposes of subsistence and market-oriented production, coordination and cooperation in labor and investment processes, access to means of payment and credit, and the allocation of risk and uncertainty attendant to production. It also differentially constrained market access to labor roles, training, and credit along lines of gender and race, leveraging gendered roles in reproduction and gendered and racialized status subordination into hyper-exploitative gendered and racialized class relations, in turn reinforcing atavistic status subordination even under a veil of juridical equality. Over the past three centuries, it has done so through a series of power struggles among competing groups and ideas, within and outside the legal profession, and structured asymmetric power in social relations along dimensions of class, gender, and race. This article analyzes the role of law and legal theory at major transition points in capitalism, particularly the Gilded Age and the rise of neoliberalism. Repeatedly, in all these battles, academics and judges harnessed legal theory and transposed the broader emerging ideological trends of the professional and managerial class to legitimate and contest the newly emerging, often more exploitative relations. The article ends with implications for the design and justification of a post-neoliberal regime.