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Law as a ByProduct: Theories of Private Law Production

JOURNAL OF LAW, ECONOMICS & POLICY, VOL. 9 (2013), pp. 521-­567

Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-27

53 Pages Posted: 15 Jul 2011 Last revised: 6 Jul 2015

Bruce H. Kobayashi

George Mason University - School of Law

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

Date Written: July 13, 2011

Abstract

Public lawmakers lack incentives to engage in a socially optimal amount of legal innovation. Private lawmaking is a potential solution to this problem. However, private lawmaking faces a dilemma: In order to be effective privately produced laws need to be publicly enacted, but under current law enactment eliminates the intellectual property rights that are essential to motivate private lawmakers. Because of this dilemma, much private lawmaking is done as a byproduct of other activities. The mixed incentives entailed in this "byproduct" approach make it a second-best response to the problems of public lawmaking. Potential solutions involve finding a better balance between public access and private rights.

JEL Classification: K10, 11, 12, 22, 34, 41, L22

Suggested Citation

Kobayashi, Bruce H. and Ribstein, Larry E., Law as a ByProduct: Theories of Private Law Production (July 13, 2011). JOURNAL OF LAW, ECONOMICS & POLICY, VOL. 9 (2013), pp. 521-­567; Illinois Program in Law, Behavior and Social Science Paper No. LBSS11-27. Available at SSRN: https://ssrn.com/abstract=1884985 or http://dx.doi.org/10.2139/ssrn.1884985

Bruce H. Kobayashi

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Larry Edward Ribstein (Contact Author)

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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