Privatizing Personalized Law

Abstract

In recent years, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider who in the personalization debate. Specifically, I identify the policy consideration that bear on the optimal maker or enforcer of personalized law. To put it another way, my essay begins where most of the prior literature leaves off: having concluded that personalized law has some merit in a given area, I ask when the state should facilitate personalized lawmaking by non-state actors.

Keywords: Mandatory Rules, Personalization, Big Data, Consumer Protection, Commodities, Futures, Exchanges, Privatization, Private Ordering, Legality, Secret Law, Rules, Standards, Ex Ante, Ex Post