LAW, NORMS & INFORMAL ORDER eJOURNAL
"Private Ordering in the Market for Professional Services"
94 Boston University Law Review 183 (2014)
Case Legal Studies Research Paper No. 2014-05
CASSANDRA BURKE ROBERTSON, Case Western Reserve University School of Law
Freedom of contract is significantly restricted in the market for professional services. Under the so-called â€œcorporate practice doctrine,â€? professionals such as doctors and lawyers are prohibited from practicing within corporate entities, and laypeople are likewise prohibited from investing in professional service firms. Defenders of this prohibition argue that it can be justified as a means of protecting professional independence and thereby increasing the quality of care. In fact, however, the available evidence suggests that investment restrictions are counterproductive to their stated goal. In practice, these restrictions raise costs and reduce access without measurably improving the quality of service at all.
This Article examines why, in spite of significant criticism, the doctrine remains alive in the twenty-first century in both medicine and law, preventing the professions from reaping the benefits of outside investment. Legislative solutions have largely failed; U.S. jurisdictions universally prohibit corporate practice in the legal field, and a significant (and resurging) minority of states continues to apply corporate practice restrictions in medicine. In both fields, the possibility of reaching a political solution is hindered by protectionist impulses.
This Article therefore proposes a challenge to the doctrine on constitutional grounds. The constitutional case in favor of private ordering is not an easy one to make: current constitutional doctrine defers heavily to state choices in the economic sphere, even when those choices lack any empirical evidence of rationality. Nevertheless, there has been an effort in recent years to move toward a more evidence-based version of rational basis review in economic cases. In addition, the Supreme Courtâ€™s recent jurisprudence on commercial speech buttresses the case for permitting external investment. In a pair of recent decisions, the Court has demonstrated an increased focus on the publicâ€™s interest in obtaining free and unfettered information. The corporate practice doctrine therefore presents an excellent test case for a more robust review of professional regulation, whether under a rational basis standard or under a more heightened level of scrutiny.
"Wilderness as Freedom"
CARTER DILLARD, Visiting Scholar, Vulnerability and Human Condition Initiative, Feminism and Legal Theory Project, Emory University School of Law.
This essay reconceptualizes freedom in a way that unifies political liberalism and environmentalism, pointing the proponents of both movements toward the shared value of humans being literally free from each other's influence, which is a necessary condition for truly consensual political association. More specifically, this essay promotes states 1) adhering to and fostering a particular fundamental political culture grounded in consent, 2) recognizing access to local wilderness and complete biodiversity as a fundamental human right, and 3) abandoning the myth of familial privacy in favor of a limited right to have children that furthers the interests of the collective.
"The Fearon Corollary: Private Property Rights as War"
W.C. BUNTING, American Civil Liberties Union (ACLU), Senior Economist
This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced in the institution of private property rights itself, and, in particular, in state â€œCastle Doctrineâ€? laws that permit the use of lethal force in defense of real property. To promote the socially-optimal shared use of contested scarce resources, a role for the courts is suggested where de facto common property rights are established by rendering private property rights random or unclear â€” judicial behavior that stands in sharp contrast to the commonly understood normative implications of the Coase Theorem. This uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for disputing parties to cooperate in the form of negotiated settlement agreements. In this way, less secure claims to private property promote social cooperation.
"Critical Analysis of Law: Interdisciplinarity, Contextuality, and the Future of Legal Studies"
Critical Analysis of Law: An International & Interdisciplinary Law Review, Vol 1, No 1 (2014)
MARKUS D. DUBBER, University of Toronto - Faculty of Law
Critical Analysis of Law (CAL) is a broadly contextual approach to legal scholarship animated by the idea of bilateral interdisciplinary engagement. CAL aims to move beyond entrenched distinctions and self-imposed limitations, pursuing critique and analysis, theory and doctrine, because both are essential interdependent aspects of the enterprise of legal studies as a discipline.
CAL embraces interdisciplinarity, reconceived and contextualized. It insists on the autonomy of law as a discipline, while at the same time regarding law as one discipline among others, and the interdisciplinarity of legal studies as a reflection of interdisciplinarity in all modes of scholarship and teaching.
"How Much Do We Owe Future Generations?"
Environmental Policy and Law, Vol. 43, Issue 6, 2013
TERESA THORP, Insight International
The UNFCCC COP should re-evaluate cost-benefit-analysis and consider adopting a first principles approach to protect future generations in light of deep uncertainty. This paper argues for a type of â€œequitable efficiencyâ€? or â€œfirst principles efficiencyâ€? that exists when a dynamic first principles approach is used to produce an extra unit of a â€œduty to protectâ€? humankind. Antitrust tools could be used to trigger â€œdistributingâ€? a dynamic package of first principles and consequential norms fairly.
"Ambiguities: Law, Morality, and Legal Subjectivity in H.L.A. Hart's the Concept of Law"
in Maria Drakopoulou, ed., Feminist Encounters with Legal Philosophy (Abingdon: Routledge-Cavendish, 2013) 185-204
EMMA CUNLIFFE, University of British Columbia (UBC), Faculty of Law
In The Concept of Law, H.L.A. Hart set out his definition of law as a social phenomenon. He had two main objectives: to restate the positivist position that law and morality are "different but related"; and to modify and extend John Austinâ€™s command theory of law using J.L. Austinâ€™s analytic linguistic philosophy (Hart, 1994: vi-vii). The book, which Hart â€œprimarily designed for the student of jurisprudenceâ€? (Hart, 1994: vi) quickly became one of two pillars in Anglo-American jurisprudence.
The first substantive section of this chapter sets out Hartâ€™s contribution to common law jurisprudence, and explains Hartâ€™s definition of a legal system as a union of primary and secondary rules that imposes obligations on subjects and officials alike. Focusing on the distinction Hart draws between being "obliged" to follow a rule and having an 'obligation' to do so, I explore the legal subject Hart postulates in his description of internal and external points of view. Despite Hartâ€™s claims to universality, I find that his 'ordinary citizen' (Hart, 1994: 113) is the disembodied, decontextualised man of liberal theory.Â In the following section, delineating a feminist critique of Hartâ€™s legal subject, I rely on three of the many challenges that have been made to liberal conceptions of individual autonomy and rationalism by feminist theorists.Â
In the final section, while acknowledging the strength of the feminist critiques of liberal legalism, and the applicability of those criticisms to The Concept of Law, I nonetheless conclude that Hartâ€™s ethical commitment to distinguishing between law and morality has a contingent place in feminist legal theory. Without wishing to re-inscribe liberal legalismâ€™s fiction of choice, I suggest that Hartâ€™s distinction has the potential to help feminist theorists contest the apparent naturalness of inherently oppressive legal orders. If it is possible to decouple the distinction between law and morality from the liberal legal subject encapsulated by Hartâ€™s phrase 'ordinary citizen', it might become more possible to hold legal officials, lawmakers, and ordinary citizens themselves accountable for the inequities perpetuated by human legal systems.
About this eJournal
This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.
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Law, Norms & Informal Order eJournal
LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law & Co-Director, Institute for Civil Justice, University of Chicago Law School
JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)
ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School
SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology
DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics
PAUL G. MAHONEY
Dean, University of Virginia School of Law
PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics
ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School
ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University Bloomington - Department of Business Economics & Public Policy
CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)
THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law
JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School