Mixed Systems in Legal Origins Analysis – Note by Kensie Kim

From Volume 83, Number 3 (March 2010)

A “hybrid” or “mixed” country can be defined as having substantial common and civil elements in its legal system. Hybrid countries have been an overlooked aspect of legal origins literature. This study’s comparative analysis finds that most hybrids have experienced moderate to high economic growth rates, began as civil law countries, and maintained predominantly civil law–based property and contract law, while uniformly adopting common law–based corporate and securities law.



Beyond the Prisoners’ Dilemma: Coordination, Game Theory, and Law – Article by Richard H. McAdams

From Volume 82, Number 2 (January 2009)

In reviewing a game theory text almost twenty years ago, Ian Ayres complained that “countless” law review articles “rearticulate the Prisoner’s Dilemma, but few even proceed” to the simplest of other games. Several years later, in what is still the most significant book treatment of game theory for law, Douglas Baird, Robert Gertner, and Randal Picker began by lamenting how legal scholars had neglected game theory up to that point “other than to invoke a simple game such as the prisoner’s dilemma as a metaphor for a collective action problem.” All of these scholars asserted the great value of game theory to legal analysis and the hope that it would transform legal theory as it has transformed economic theory.



Global Legal Pluralism – Article by Paul Berman

From Volume 80, Number 6 (September 2007)

This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decision maker cannot defer. In sum, pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices.

The Article proceeds in three parts. First, I summarize the literature on legal pluralism and suggest ways in which this literature helps us understand the global legal environment. Second, drawing on pluralist insights, I offer an analytical framework for addressing normative conflicts, one that provides an alternative both to territorially-based sovereigntism and to universalism, and instead opens space for the “jurisgenerative” interplay of multiple normative communities and commitments. This framework generates a series of values and principles that can be used to evaluate the efficacy of procedural mechanisms, institutional designs, and discursive practices for managing hybridity. Third, I survey a series of such mechanisms, institutions, and practices already in use in a wide variety of doctrinal contexts, and I discuss how they work (or sometimes fail to work) in actual practice. And though each of these mechanisms, institutions, and practices has been discussed individually in the scholarly literature, they have not generally been considered together through a pluralist lens, nor have they been evaluated based on their ability to manage and preserve hybridity. Thus, my analysis offers a significantly different approach, one that injects a distinct set of concerns into debates about global legal interactions. Indeed, although many of these mechanisms, institutions, and practices are often viewed as “second-best” accommodations between hard-line sovereigntist and universalist positions, I argue that they might at least sometimes be preferable to either. In the Conclusion, I suggest implications of this approach for more general thinking about the potential role of law in identifying and negotiating social and cultural difference.



A Jeffersonian Republic by Hamiltonian Means: Values, Constraints, and Finance in the Design of a Comprehensive and Contemporary American “Ownership Society” – Article by Robert Hockett

From Volume 79, Number 1 (November 2005)

Use of the phrase “ownership society” to designate an end state toward which one believes that American policy should strive entails certain commitments. The usage cannot mean merely that public policy ought to seek to bring about a society in which some people own some things; we have lived in that society, without interruption, since the first days of our republic. Nor can use of the phrase contemplate merely a society whose law recognizes, vindicates, and protects property rights; again, that has been a central feature of our polity since its first days under our present constitution. To what, then, can the notion of an “ownership society” refer? It must refer to a society whose members are publicly conscious of the individual and the societal value of ownership, and who work systematically to propagate that value among themselves. The “ownership society” (“OS”), that is, not only recognizes, preserves, and protects ownership, but also it celebrates, fosters it, and spreads it. It is, in short, a latter-day rendition of that venerable American ideal, the Jeffersonian “yeoman republic.”

But making a society-shaping and enduring public commitment to ownership promotion raises several antecedent practical tasks that must be addressed both sensibly and sensitively if the project is to put down roots, flourish, and endure. First, the project must be conceived, articulated, and implemented in a manner consistent with the core values and political self-understandings of those who comprise the society that wills to be an OS. Where the society has featured multiple such valuational and political traditions over time, this task further requires that some synthesis of, or overlapping consensus among, these traditions be derived and articulated: an ideologically neutral yet nonetheless value-expressive language must be wrought.



Procedural Justice – Article by Lawrence B. Solum

From Volume 78, Number 1 (November 2004)

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of dispute resolution—in other words, a system of procedure. A theory of procedural justice is a theory about the fairness of the institutions that do the job of particularization.