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Abstract:
Fads and fashions affect theories of American law of course, but September 11 resulted in an eclipse of dominant ways of 'doing' law - and of the powers of courts and the Congress - an eclipse of uncertain length as of this writing. I document the eclipse of a neconservative law and economics and (chiefly as Laura Kalman uses the term) a legal liberalism. Tacitly adopting an 'alien' jurisprudence from Machiavelli, Carl Schmitt, and Hans Vaihinger, the Executive Branch SEEMS bent on using a "War on Terror" to transform our vulnerable society and economy (a civil libertarian and modestly welfare state) into a "warfare state," especially through expansions in the governance by special interests that is opposed by economists and legal liberals alike. Contrary to the views of some legal academics, American life and law are clearly at a turning point. I close by offering some solutions to the problems I raise.

civil liberties, constitutional law, foreign policy, international human rights, liberal legalism (jurisprudence), separation of powers, September 11

Abstract:
Indian casinos are the fastest-growing segment of America's fastest-growing industry, and they generate fascinating jurisprudential and policy issues. After introductory sections, casinos are treated to a conventional economics analysis of regulation. This analysis is then compared and contrasted with the outcomes under broader "Coasian Games": betting and bluffing in a seven-sided, poker-like game. The seven players are the feds, states, and tribes, which are "sovereign" in varying and confusing ways; and groups opposed to legalized gambling, local governments, non-Indian casinos and other gambling enterprises, and an international human rights community keen to enhance the tribes "rights" to self-determination and to development.

The article thus considers distributive issues and developmental potentials, as well as an allocative efficiency. The players' moves, countermoves, and forum shopping during these Coasian games are traced through Cabazon (1987), The Indian Gaming Regulatory Act (1988), and Seminole (1996) and its aftermath. The games are becoming increasingly complex, incoherent, and expensive, creating deadlocked institutions and administrative rules concerning tribal casinos. Coasian bribes and other transaction costs have burgeoned, as have opportunities to cheat and to act as a free rider (especially for the feds) or holdout (especially for the states, after Seminole).

Coasian analyses are thus modified in two ways, to provide additional insights and offer suggestions for administrative reform, by taking the international human rights and the sovereignty (market and other forms of power) dimensions of tribal casinos into account. The Coase Theorem then loses much of its decentralizing "bite", and some of its conventional conclusions are cast into doubt: the ability to account for information costs and (gambling) rents, and the irrelevance of changing the criteria for assigning property rights (to run a casino). Regretably perhaps, the Native American casino comes across as allocatively inefficient but distributively just, the "new buffalo" that offers an inferior but nonetheless viable and perhaps inevitable development opportunity for many tribes.

Abstract:
The democratization revolution that recently swept Eastern Europe and much of the Third World is the most excititng and hopeful trend of the late twentieth century. With the collapse of an analytical Marxism and a paucity of overarching theories of a social democracy, a neoconservative law and economics has dominated thinking about this revolution. Hoping for a new withering away of the state, ethnocentric American economists have neglected the roles administrative law can and should play in this revolution. But leaders in nascent democracies know that their citizens expect them to do something, right now, to improve citizen welfare through a rather activist state and administrative law. The article thus surveys ways to strengthen the adminstrative state, in democratic ways. Based on the ideas of Kenneth Davis and Jerry Mashaw, "internal" administrative law reforms should reduce bureaucratic discretion--usually expressed as the power to do nothing, unless a bribe overcomes the bureaucrat's lethargy--and force meaningful and neutral evaluations of the performance of specifically-enumerated bureaucratic tasks. An "external" and more democratic accountability of bureaucrats then evolves, as the relevant institutions--parliaments, courts, ombudsmen, nongovernmental organizations, etc.--are strengthened in democratic ways. The roles of lawyers in this process are discussed and specific topics are sketched, to flesh out the analyses: property rights, dealing with citizens' and bureaucrats' uncertainties, industrial policies, the privatization of state-owned enterprises, deregulation and some planned re-regulation, and social welfare policies.