117 Yale L.J. 340 (2007).
The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) turns largely on the question of whether legal systems everywhere must inevitably follow the American model. Despite the global importance of the consumerism debates, though, comparative lawyers have found little to say. In an effort to develop an analytic comparative law approach to the problem of global consumerism, this Article proposes to revive an analytic distinction that was common in the 1930s: the distinction between “consumerism” and “producerism.” A producerist legal order tends to revolve around rights and interests on the supply side of the market: it focuses on the interest of some class of producers or distributors (such as workers, small shopkeepers, or the competitors in a given industry). A consumerist legal order, by contrast, tends to focus on rights and interests on the demand side of the market—in particular, on the consumer economic interest, understood primarily as an interest in competitive prices. Producerist legal orders can take forms quite different from consumerist ones, both when it comes to economic regulation in the law of antitrust and retail and when it comes to fundamental conceptions of the nature of rights. The distinction between consumerism and producerism involves some real complexities, and it must be used with care. Nevertheless, this Article argues, it is of fundamental importance for classifying and analyzing legal systems, and in particular for understanding basic and persistent differences between continental Europe and the United States.
117 Yale L.J. 408 (2007).
Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Decoupling the entrenching function from the constitutive functions offer a relatively simple answer to one of the most important problems in constitutional theory: how do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes—the growth of the administrative state, the proliferation of individual entitlements—are changes to our “constitution outside the constitution” that are neither mandated nor forbidden by the canonical document. This functional account of constitutionalism also has implications for constitutional doctrine and scholarship. It tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims, and it suggests that basic constitutional values—such as federalism or concern for individual rights—are relevant to statutory construction. Finally, the functional account suggests a broader set of concerns for constitutional law teaching and scholarship.
117 Yale L.J. 474 (2007).
For centuries, the law has prevented people from purchasing insurance on the life or property of strangers because such insurance contracts would give policyholders incentives to end the life or destroy the property in order to collect the insurance payout. The law thus requires that policyholders have an “insurable interest” in the person or property they insure, and contracts lacking such an “insurable interest” are invalidated by courts as against public policy. This Note presents an economic analysis of the insurable interest requirement, and argues that the doctrine creates perverse incentives that encourage the very practices the doctrine seeks to deter. In addition to failing on its own terms, the doctrine also invites unfairness and inefficiency in the insurance market. This Note concludes that the best way for courts to prevent insurance contracts on the life or property of strangers may be to refrain from invalidating such contracts in the first place.
117 Yale L.J. 510 (2007).
Many concession agreements between governments of developing countries and corporations have failed to produce expected infrastructural, monetary, and efficiency gains. This Note argues that these agreements fail in part because the parties construct them as traditional private contracts. Given their subject matter, their noneconomic focus and purposes, and the ways in which they shape future economic development strategy, international policymakers and business leaders should conceptually and procedurally recast concession agreements as traditional matters of public policy. This reinterpretation will make the agreements more stable and successful by making their costs and benefits more transparent, their drafters more accountable to the populations they are intended to benefit, and their terms more responsive to the concerns of those populations.