LAW, NORMS & INFORMAL ORDER eJOURNAL
"Economics of Legal History"
Oxford Handbook of Law & Economics, ed. Francesco Parisi, 2014
USC CLASS Research Paper No. 14-30
USC Law Legal Studies Paper No. 14-38
DANIEL M. KLERMAN, USC Gould School of Law
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.
1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.
2) Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century womenâ€™s rights legislation.
3) Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.
4) Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the â€œlaw merchantâ€?).
5) Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.
"Toward a New Institutional Analysis of Social-Ecological Systems (NIASES): Combining Elinor Ostrom's IAD and SES Frameworks"
Indiana Legal Studies Research Paper No. 299
DANIEL H. COLE, Indiana University Maurer School of Law, Indiana University School of Public and Environmental Affairs, Indiana University Bloomington - Workshop in Political Theory and Policy Analysis
GRAHAM EPSTEIN, Indiana University Bloomington - Department of Political Science
MICHAEL D. MCGINNIS, Indiana University Bloomington - Department of Political Science, Indiana University Bloomington - School of Public & Environmental Affairs (SPEA)
Elinor Ostrom's IAD and SES frameworks are both widely used among social scientists. Each framework suffers from significant problems not shared by the other. For instance, the IAD framework pays insufficient attention to important social and, especially, ecological variables that can affect or influence social interactions. The SES framework was designed specifically to resolve that problem, but at the cost of the dynamism inherent in the IAD framework. While the SES is capable of diagnosing social and ecological conditions at a fine level of detail, it cannot explain how various attributes interact to generate outcomes, let alone predict or prescribe changes to social-ecological conditions over time.
This purpose of this paper is to remedy both of those problems by simply combining Ostrom's two frameworks in a very intuitive way. Instead of incorporating the IAD framework into the SES framework, which was Ostrom's initial plan, we do the opposite: the first-tier SES variables simply replace the "Biophysical Conditions," "Community Attributes," and "Rules-in-Use" boxes of the IAD framework. By this simple expedient, the IAD framework deals becomes more attuned to institutional and ecological complexity, and the SES framework becomes part of a truly dynamic set of processes.
We explicate how the combined IAD-SES framework works, first in the relatively static, hypothetical context of Hardin's pasture, and then in the far more dynamic-historical context of Maine's lobster fishery. That last application shows that the two frameworks, when combined, are far more powerful than either framework on its own. In particular, we can use SES variables along with IAD processes to show how interactions of collective-action situations produce outcomes that effect the SES variables which then condition the next phase, round, period, or set of interactions.
More work remains to be done, refining and rationalizing SES variables, and further developing IAD elements (such as "Evaluative Criteria" and relations between formal rules and "rules in use") before the combined IAD-SES framework can be called a truly "New Institutional Analysis of Social-Ecological Systems" (NIASES).
"Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Preâ€?Emptive Turn in Criminal Justice"
Journal of Law and Society, Vol. 41, Issue 3, pp. 339-366, 2014
HARRY ANNISON, University of Southampton - School of Law
This article presents an interpretive politics of the judiciary, arguing for the value of interpretive political analysis in understanding developments in case law and judicial activity. It sketches out a senior judicial tradition, which is argued to guide but not predetermine the actions of the British senior judiciary. A case study, the senior judiciary's response to the Imprisonment for Public Protection (IPP) sentence, is presented, drawing on case law, extraâ€?judicial speeches, and interviews with five serving or retired senior judges. It is argued that this demonstrates the senior judiciary to be politically attuned actors, often highly sensitive to the broader context, while equally determined to act with fidelity to the law and the responsibilities inherent in an independent, impartial judiciary. The IPP case law suggests that the senior judicial tradition, and its inherent tensions, limits the extent to which the senior judiciary feel equipped to oppose the â€˜preâ€?emptive turnâ€™ in criminal justice.
"What is the Use of a Human Right to Development? Legal Pluralism, â€˜Participationâ€™, and a Tentative Rehabilitation"
Journal of Law and Society, Vol. 41, Issue 3, pp. 367-390, 2014
JOSEPH MARKUS, Garden Court North
The human right to development divides academic thought. On the one hand, it is mistrusted as an apology for human rights (and other) abuses. On the other, it remains a central pillar of the UNâ€?led campaign against poverty. Building on the concept of the right to participate in development framed in the UN General Assembly Declaration of 1986, this article seeks to show that there is some scope for the rehabilitation of that right. It demonstrates how the development discourse has tended to exclude minority and subaltern groups. Drawing on the insights of legal pluralism, it then outlines ways in which, for example, indigenous communities have reasserted some control over the development process, before suggesting how this could lay the basis for the wider rehabilitation of the idea of a human right to development.
"Relational Human Rights: Shedâ€?DNA and the Identification of the â€˜Living Disappearedâ€™ in Argentina"
Journal of Law and Society, Vol. 41, Issue 3, pp. 391-415, 2014
NOA VAISMAN, Durham University - Law School
Through an ethnographic reading of an Argentine Supreme Court decision I explore the changing nature of the legal subject of human rights in light of emerging technologies. Guillermo Gabriel Prieto was suspected of being a â€˜living disappearedâ€™, one of the estimated 500 infants or young children forcibly abducted by the last military dictatorship in Argentina. They were raised by the perpetrators of the crime or their accomplices and kept unaware of their birth origins. The Court's deliberations focused on Guillermo's appeal of a lowerâ€?court decision to carry out an identity test based on his shedâ€?DNA. The decision demonstrates that while the subject of human rights has often been equated with the bounded individual, new technologies challenge us to reconsider the subject's core characteristics: physical boundedness, autonomy, and individuality. I argue that the ruling offers us an alternative conception of the subject that could become the foundation for a new vision of human rights
"The Revisability Principle"
ANDREW TUTT, Yale University - Information Society Project, Yale University - Law School
Debates over the â€œright to be forgottenâ€? loom ever larger. Europe increasingly recognizes such a right. To many in the United States, however, a right to be forgotten appears misguided and deeply foreign, inconsistent with the First Amendmentâ€™s commitment to uninhibited, robust, and wide-open exchange. But even here, the growing realization that everything people do can be, and often is, permanently recorded and stored has begun to provoke growing disquiet.
This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten â€” a deep constitutional commitment to what this Article calls the â€œrevisability principle.â€? It is the principle that an individualâ€™s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish â€” both in the past and in the future â€” is powerfully constrained. Personal autonomy is abridged when individuals lose the capacity to control, to some significant degree, their own destiny by fashioning a conception of themselves through successive decisions about who they wish to be through deliberate choices that they make.
The second purpose of this Article is to explain how emerging technologies place unprecedented pressures on the revisability principle. Technologies and social practices that result in the permanent storage, ready access, and widespread dissemination of past mistakes or even prior identities that a person in the present hopes to leave behind impinges on the principle of revisability by making it more and more difficult to disassociate oneself from past choices that no longer reflect oneâ€™s self-conception. To the extent individuals must forever account for decisions in the distant past â€” people they in some sense no longer are â€” their freedom to speak, engage, and participate in democratic society and cultural creation is powerfully constrained. A capacity to engage in self-revision is critical to fully realizing the First Amendmentâ€™s commitment to debate that is uninhibited, robust and wide-open.
"An Uprising of Civility in Texas"
5 HLRe: Off the Record 1 (2014)
DAVID A. GRENARDO, St. Mary's University School of Law
When people think of Texas and civility, the first thing that may come to mind might be the infamous YouTube clip titled â€˜â€˜Texas Style Deposition.â€™â€™ In that clip, Texas attorney Joe Jamail proceeds to call opposing counsel several profanities, as well as â€˜â€˜fat boy,â€™â€™ and Mr. Jamail threatens to fight the witness he is deposing.
This anecdotal episode, along with the misconception that the Texas legal system is equivalent to the â€˜â€˜Wild West,â€™â€™ cast an unflattering and inaccurate picture of civility in the legal profession in Texas. In fact, efforts to increase and sustain civility in Texas are growing and flourishing.
This Article first briefly discusses what civility is, the advantages of civility in the legal profession, and the costs of incivility. This Article then focuses on several of the developments in Texas regarding civility. This Article also provides suggestions on how civility can become even more ingrained in the state.
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, 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 - 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
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