Table of Contents

Fiduciary Political Theory: A Critique

Ethan J. Leib, Fordham University School of Law
Stephen Galoob, University of Tulsa College of Law

Cultural Paradigms in Property Institutions

Taisu Zhang, Yale University - Law School

Law in the Future

Benjamin Alarie, University of Toronto - Faculty of Law
Anthony Niblett, University of Toronto - Faculty of Law
Albert Yoon, University of Toronto - Faculty of Law

The Unification of Law and the Postcolonial State: The Limits of State Monism in India and Indonesia

Yuksel Sezgin, Syracuse University
Mirjam Künkler, Princeton University

The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia

Petra Mahy, University of London - School of Oriental and African Studies (SOAS)


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Fiduciary Political Theory: A Critique" Free Download
Yale Law Journal, Vol. 125, No. 7, 2016
Fordham Law Legal Studies Research Paper No. 2789594

ETHAN J. LEIB, Fordham University School of Law
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STEPHEN GALOOB, University of Tulsa College of Law
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“Fiduciary political theory? is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of fiduciary norms. In these domains, fiduciary political theory is less likely to be viable.

One contribution of this Essay is to describe the underlying structure of fiduciary norms. We identify three features of these norms that differentiate them from norms of contract, tort, and criminal law. First, fiduciary norms impose deliberative requirements: they make specific types of demands on an agent’s deliberation in addition to her behavior. Second, complying with fiduciary norms requires a special conscientiousness. Living up to a fiduciary obligation depends not only on how an agent behaves and deliberates, but also on whether she does so for the right reasons. Third, fiduciary norms impose “robust? demands, which require the fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries.

We use these insights to assess applications of fiduciary principles to theories of judging, administrative governance, and international law. A fiduciary theory of judging can explain certain aspects of the norms of judging better than alternative theories offered by Ronald Dworkin and Judge Richard Posner. The viability of a fiduciary theory of administrative governance is an open question. Whether this kind of fiduciary political theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, a fiduciary political theory of international law (like the one defended by Evan Fox-Decent and Evan Criddle) is unlikely to succeed. Fiduciary norms are structurally incompatible with the domain of international law because compliance with international-law norms is a function of how states behave, rather than how they deliberate or why they behave as they do.

"Cultural Paradigms in Property Institutions" Free Download
Yale Journal of International Law, Forthcoming

TAISU ZHANG, Yale University - Law School
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Do “cultural factors? substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.? The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural? theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural? in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.

Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.

"Law in the Future" Free Download

BENJAMIN ALARIE, University of Toronto - Faculty of Law
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ANTHONY NIBLETT, University of Toronto - Faculty of Law
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ALBERT YOON, University of Toronto - Faculty of Law
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The set of tasks and activities in which humans are strictly superior to computers is becoming vanishingly small. Machines today are not only performing mechanical or manual tasks once performed by humans, they are also performing thinking tasks, where it was long believed that human judgment was indispensable. From self-driving cars to self-flying planes; and from robots performing surgery on a pig to artificially intelligent personal assistants, so much of what was once unimaginable is now reality. But this is just the beginning of the big data and artificial intelligence revolution. Technology continues to improve at an exponential rate. How will the big data and artificial intelligence revolutions affect law? We hypothesize that the growth of big data, artificial intelligence, and machine learning will have important effects that will fundamentally change the way law is made, learned, followed, and practiced. It will have an impact on all facets of the law, from the production of micro-directives to the way citizens learn of their legal obligations. These changes will present significant challenges to human lawmakers, judges, and lawyers. While we do not attempt to address all these challenges, we offer a short and positive preview of the future of law: a world of self-driving law, of legal singularity, and of the democratization of the law.

"The Unification of Law and the Postcolonial State: The Limits of State Monism in India and Indonesia" Free Download
American Behavioral Scientist 2016, Vol. 60 (8) 987–1012

YUKSEL SEZGIN, Syracuse University
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MIRJAM KÜNKLER, Princeton University
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The article analyzes the evolution of state law pluralism in the field of personal status law in India and Indonesia in the postcolonial era. Having inherited pluri-legal personal law systems from their colonial patrons, postindependence leaders in both countries vowed to eliminate and replace pluri-legal arrangements by uniform civil law systems that would not discriminate on the basis of ethnicity, custom, or religion. Despite their attempts at legal unification from the 1940s to 1960s, however, both nations today exhibit high degrees of state law pluralism in personal law. We show that plans for legal unification were abandoned in both countries in the 1970s, and that the turn away from legal unification was mostly driven by concerns of political stability and electoral politics, not, as is often argued in the literature, due to state incapacity or ideological reorientations on part of the ruling elite.

"The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia" Free Download
Forthcoming paper accepted to International Journal of Law in Context

PETRA MAHY, University of London - School of Oriental and African Studies (SOAS)
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This article examines the potential use and limits of Zweigert and Kötz’ classical functional approach in comparative law for an empirical socio-legal research project. The project involves a comparison of the formal labour laws and informal norms and institutions which regulate restaurant work in the cities of Melbourne, Australia, and Yogyakarta, Indonesia. The article argues that the functional approach is a necessary but incomplete method for overcoming the many issues of comparability between the two research sites; the method requires both extension of its analytical steps and explicit explanation of its limitations.

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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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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, 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

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 Political Science, Australian National University (ANU) - Research School of Social Sciences (RSSS)

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 - Kelley School of Business - 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

STEVEN SHAVELL
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