When Civil Society Uses an Iron Fist: The Roles of Private Associations in Rulemaking and Adjudication

Forthcoming, American Law and Economics Review

Yale Law & Economics Research Paper No. 550

42 Pages Posted: 29 Apr 2016 Last revised: 2 Aug 2016

Robert C. Ellickson

Yale Law School

Date Written: July 25, 2016

Abstract

Alexis de Tocqueville and Robert Putnam are but two of the many admirers of the countless private associations that lie at the core of civil society. This article seeks to advance understanding of the law-like activities of these associations. Residential community associations and sports leagues, for example, make rules and levy fines on members who violate them. The New York Diamond Dealers Club and the Writers Guild of America, like many other associations, have established internal arbitral panels for the resolution of member disputes. Courts are highly likely to defer to the outcomes of these arbitrations. The article’s central positive thesis, hedged with qualifications, is that a private association tends to engage in social control when it is the most cost-effective institution for addressing the issue at hand. This thesis is used to illuminate some otherwise puzzling associational practices, such as the efforts of the National Football League and other professional sports leagues to control players’ domestic violence off the field of play.

Keywords: Associations, FIFA, NFL, De Tocqueville, Sports Leagues, Civil Society

JEL Classification: K00, L31, Z20

Suggested Citation

Ellickson, Robert C., When Civil Society Uses an Iron Fist: The Roles of Private Associations in Rulemaking and Adjudication (July 25, 2016). Forthcoming, American Law and Economics Review ; Yale Law & Economics Research Paper No. 550. Available at SSRN: https://ssrn.com/abstract=2771662

Robert C. Ellickson (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-7033 (Phone)

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