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Abstract:
Neuroeconomics - the study of brain activity in people engaged in tasks of reasoning and choice - looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This essay explains what is most exciting about the new field and lays out some specific research tasks for it.

By enabling researchers to view the mind at work, neuroeconomics calls into question the value of a methodological premise of twentieth-century empiricism, sometimes called positivism or behaviorism: that people are black boxes to one another, and scientific social inquiry must observe only their objective behavior, what they say and do. This premise came to the center of neoclassical economic method via the 1930s work of the economist Lionel Robbins, and it occasioned a methodological split in social inquiry. Positivists (most importantly, economists) follow the strictures of studying observable behavior, while interpretivists insist that we cannot understand social life without interpreting the minds and intentions of others, even though we cannot view them directly.

The limits of these two methods have restricted progress in understanding three critical issues for legal scholarship: 1) how people solve collective-action problems, 2) why some people are more susceptible than others to extremist political appeals, and 3) whether "commodification" creates a conflict between economic rationality and other values. I show how the progress already made in neuroeconomics could make each of these questions more tractable than it has recently seemed, with potentially significant payoffs.

Abstract:
In this article, Professor Purdy identifies, articulates, and defends a normative approach to property as an institution that promotes human freedom. The conception of freedom that the article defends is derived from the work of the Nobel laureate economist Amartya Sen, and defines freedom as the achievement and enjoyment of capabilities, the power to do things along various dimensions of human potential - social, economic, political, physical, intellectual, artistic, and so forth. Professor Purdy's argument has several complementary dimensions. One is close attention to several areas of concrete, ongoing debate over reform in basic features of property rights: land title in the urban slums of developing countries; control over cultural production in intellectual property law; and the development of sophisticated, market-based risk-management strategies that amount to a new frontier in the commodification of individual luck and talent. The second dimension is conceptual. Debates over the reform and extension of property systems are haunted by anxieties about distributive fairness, the effect of commodification on qualitative values, and the relationship between private property and forms of social domination all haunt. Professor Purdy argues that the freedom-promoting approach that he defends can help both to answer these concerns and to pick out cases where they properly set limits on property rights. It can thus considerably enhance the promise of the reforms with which his discussion begins. The third dimension is historical. The article shows how the conception of freedom that Sen advances, and the idea that the basic rules of property are essential promoting freedom, were first richly articulated in the Scottish Enlightenment jurisprudence and political economy of Adam Smith and his successors. The purpose of the article is thus to revive a tradition of thinking about property regimes while showing the continued relevance of that tradition to current debates.

property, freedom, rights

Abstract:
Legal scholars' discussions of climate change assume that the issue is one mainly of engineering incentives, and that "environmental values" are too weak, vague, or both to spur political action to address the emerging crisis. This paper gives reason to believe otherwise. The major natural resource and environmental statutes, the acts creating national forests and parks to the Clean Air Act and Clean Water Act, have emerged from exactly the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of national purpose, citizenship, and the role and scale of government. This paper traces several major episodes in those developments: the rise of a Romantic attachment to spectacular places, a utilitarian ideal of rational management of resources, the legal and cultural concept of "wilderness," and the innovation of "the environment" as a centerpiece of public debate at the end of the 1960s. It connects each such development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually legislation. The result is both a set of specific studies and the outlines of an account of the ways in which the argument and self-interpretation of a democratic community have created and contested new ideas of "nature" throughout American political history. The paper then shows how past episodes cast light on the present: today's climate politics, including the seemingly anomalous (even "irrational") choices by municipalities to adopt the Kyoto carbon-emissions goals, make most sense when understood as extensions of a long tradition of political argument about nature, which does not simply take "interests" as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world.

Abstract:
Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features - how long it takes to unfold and the ways in which its effects are distributed across the globe - which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate about our prospects for success. That is, if we assume that economic and political decisions reflect the present distribution of self-interest within the existing structure of rules and institutions, we may be unable to see our way beyond the problem, because it so neatly frustrates the problem-solving power of our current arrangements. We may need, instead, to adopt a dynamic view of political economy.

Abstract:
Property law both facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood. Human beings are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how it might in the future.

Two bodies of nineteenth-century law highlighted this paradox: the law of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire "Lochner era." The law struggled over how to balance recognition of laborers' bodies as resources with regard for them as legal persons. These jurisprudential problems tracked contemporary debates in political and economic thought about the nature of property in human beings. Both the legal and the more theoretical debates responded to the underlying problem of designating a boundary between those respects in which people are to be regarded as resources and those in which their personhood comes first. Disputes over this boundary are disputes over both the use of resources and the moral importance of human beings.

This analysis illuminates the stakes of two contemporary issues: voluntary peer production in digital media and the entrance of Indian women into the paid workforce. Both demonstrate how legal, technological, and social changes in people's approach to others as resources interact with changes in how people do or may value one another. When the resource-regime changes are in the direction of greater reciprocity, they may help to produce a more robust conception of personhood and a more egalitarian and attractive social life.

Abstract:
Justice Marshall's opinion in Johnson v. M'Intosh has long been a puzzle in both its doctrinal structure and in Marshall's manifest ambivalence and long, strange dicta that are both triumphal and elegiac. In this article, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples.

I examine several instances where the seeming incoherence of the opinion instead shows its debt imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations among "civilized" nations, the other for relations between "civilized" governments and the "imperfect sovereigns" of other nations. I then show how Marshall's long dicta reflect the then-prevalent view of the historical progress of societies: from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions. This historical theory lent intelligibility to the legal distinctions among "civilized" and "lesser" or "imperfect" sovereigns by claiming that the latter occupied earlier stages of development, and that "civilized" nations were legally permitted to override the property institutions of "primitive" societies in order to induce progress. The dicta, then, provide the frame for the reasoning of the case just as the theory of historical progress framed the jurisprudence of colonialism in general.

Abstract:
This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the Constitution is interpreted (1) as a set of shared and defining national commitments and practices, not necessarily anchored in the text of the document and (2) by citizens and elected politicians outside the judicial branch. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the national community that interact dynamically with citizens' understanding of the constitutional community. This Article explains the basic operation of presidential popular constitutionalism, lays out the historical development and major transformations in its practice, proposes a set of thematic alternatives for today's presidential popular constitutionalism, and locates presidential popular constitutionalism within the larger concerns of constitutional theory. In particular, it argues that some of the major political developments of recent decades, such as the "Reagan Revolution" and the Clinton-Bush era, can be fully understood only by grasping that they are episodes in presidential popular constitutionalism.

Abstract:
Professor Purdy takes an early American change in the common-law doctrine of waste - governing relations between tenants and reversioners (sometimes landlords, sometimes heirs of deceased owners) - as an occasion to compare two modes of explaining doctrinal change: one exclusively economic, the other embracing political and ideological as well as economic explanations of individual and institutional behavior. Professor Purdy concludes that the fullest and most convincing interpretation of waste doctrine's transformation from English to American common law emerges from a pluralist account. He insists, however, that economic explanation not only has a central place in doctrinal interpretation, but is enriched even on its own terms by the addition of plural elements.

Early American courts moved the law governing tenants' use of land from a bright-line rule to a fuzzy standard. Courts styled the change an effort to rationalize the law in light of the very different proportions of land, labor, and capital present in North America as against those prevailing in England. Curiously, however, basic economic analysis of the American doctrine suggests it was not a clear improvement as an efficiency-enhancing device. The doctrine emerged, moreover, in the context of quasi-feudal landlord-tenant relations in the manorial estates of the Hudson Valley, which were in many respects the bete noir of the broadly republican ethos then prevalent in American law and politics. By examining the context of the seminal case and the thought of one its deciding judges - New York's Chancellor James Kent - on the relationship of property law to republican society, Professor Purdy shows how the change would have seemed attractive from the point of view of creating a formally egalitarian free-market society. This interpretation is not so much at odds with a conventional economic explanation as it is illuminating of what market economics meant in early eighteenth-century America. The free market described a set of social relationships, regarded as the antithesis of feudal hierarchy, which legislators and jurists did not assume as given, but set about deliberately to create, always in the shadow of the feudal counterpoint.

waste, doctrine

Abstract:
In India and China, a population gap has opened between young men and women. There are now about 100 million more men than women in those countries and a few of their neighbors. Many of the "missing women" either were never born because of sex-selective abortion or died in childhood because families devote more medical and other resources to boys. "Missing women" mean men who will never marry. Socially unintegrated young men are associated with a variety of social pathologies; most importantly, they are the prime recruitment targets of nationalist and fundamentalist political groups.

Conservative and reactionaries have always argued that society and the state have an interest in individual reproductive decisions; liberals have answered that reproduction belongs to a zone of personal autonomy. These crises demonstrate that individual choices do have systemic consequences in which society has to take an interest. This formulation leads to the normative question of the paper: how to address the demographic crises while protecting reproductive autonomy?

In India, girls' survival rates improve only with indicators of women's empowerment: female literacy and workforce participation. In Europe, social policies that reduce the cost of tradeoffs between childbearing and career enable families to choose both, and induce higher birthrates. Increases in the set of options that women and families control, that is, their substantive freedom, seem to reduce the tension between personal choice and social well-being. In this case, at least, where autonomy produces crises, the answer is more and deeper autonomy.

Abstract:
The Mexicans have long been known as the Corn People, but that label perhaps provides a better fit for modern day Americans. The simple seeds of corn play a fundamental role unprecedented in the history of human agriculture. Corn now underpins two major sectors, arguably the two most important sectors, of our modern economy - food supply and energy supply. How we choose to consume this seed has far-ranging consequences for pressing issues as far apart as climate change and diabetes, energy policy and immigration, tropical deforestation and food riots.