Private Ordering as the Foundation for Frontier Law

2019 ◽  
Author(s):  
Eric Alston
Keyword(s):  
Private Ordering

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

Algorithmic Governance by Online Intermediaries

2019 ◽  
Author(s):  
Niva Elkin-Koren ◽  
Maayan Perel
Keyword(s):  
Risk Management ◽  
Law Enforcement ◽  
Public Discourse ◽  
Critical Role ◽  
Public Law ◽  
Online Content ◽  
Private Ordering ◽  
Algorithmic Accountability ◽  
Copyright Enforcement

In recent years, there is a growing use of algorithmic law enforcement by online intermediaries. Algorithmic enforcement by private intermediaries is located at the interface between public law and private ordering. It often reflects risk management and commercial interests of online intermediaries, effectively converging law enforcement and adjudication powers, at the hands of a small number of mega platforms. At the same time, algorithmic governance also plays a critical role in shaping access to online content and facilitating public discourse. Yet, online intermediaries are hardly held accountable for algorithmic enforcement, even though they may reach erroneous decisions. Developing proper accountability mechanisms is hence vital to create a check on algorithmic enforcement. Accordingly, relying on lessons drawn from algorithmic copyright enforcement by online intermediaries, this chapter demonstrates the accountability deficiencies in algorithmic copyright enforcement; maps the barriers for algorithmic accountability and discusses various strategies for enhancing accountability in algorithmic governance.

scholarly journals How should we model property? Thinking with my critics

2017 ◽  
Vol 13 (4) ◽  
pp. 815-827 ◽  
Author(s):  
BENITO ARRUÑADA
Keyword(s):  
Property Rights ◽  
Transaction Costs ◽  
Main Argument ◽  
Model Property ◽  
Private Ordering ◽  
Single Exchange ◽  
Private And Public ◽  
Definition Of ◽  
Physical Dimensions

AbstractInspired by comments made by Allen (2017), Lueck (2017), Ménard (2017) and Smith (2017), this response clarifies and deepens the analysis in Arruñada (2017a). Its main argument is that to deal with the complexity of property we must abstract secondary elements, such as the physical dimensions of some types of assets, and focus on the interaction between transactions. This sequential-exchange framework captures the main problem of property in the current environment of impersonal markets. It also provides criteria to compare private and public ordering, as well as to organize public solutions that enable new forms of private ordering. The analysis applies the lessons in Coase (1960) to property by not only comparing realities but also maintaining his separate definition of property rights and transaction costs. However, it replaces his contractual, single-exchange, framework for one in which contracts interact, causing exchange externalities.

scholarly journals Making it personal: breach and private ordering in a contract farming experiment

2016 ◽  
Vol 44 (1) ◽  
pp. 121-148 ◽  
Author(s):  
Sebastian Kunte ◽  
Meike Wollni ◽  
Claudia Keser
Keyword(s):  
Contract Farming ◽  
Private Ordering

scholarly journals Interpretation of Consent Decrees and Microsoft v. United States I: Making Law in the Shadow of Negotiation

2001 ◽  
Vol 1 ◽  
Author(s):  
Lloyd C. Anderson
Keyword(s):  
United States ◽  
Federal Courts ◽  
Consent Decree ◽  
Public Forum ◽  
The Public ◽  
Private Ordering ◽  
Negotiated Settlements ◽  
Consent Decrees ◽  
The Law ◽  
Substantive Law

 People negotiate agreements "in the shadow of the law," whether in the private ordering of affairs such as drafting contracts or in the public forum of settling lawsuits.[1] A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare law in the shadow of negotiated settlements. In interpreting the terms of a consent decree[2] when the parties themselves cannot agree on what obligations such terms impose, the judge may determine that both the words and the parties' own intentions are so ambiguous that the words must be interpreted in light of the substantive law that gave rise to the plaintiffs' claim. This writer has previously contended that the meaning of an ambiguous term should be determined, in part, "by reference to the constitutional or statutory rights sought to be vindicated in the litigation." Even if the law is somewhat uncertain, part of the judge's interpretive effort should be to determine which interpretation "will best serve the policies of the relevant law."[3] It appears that the federal courts, at least, have adopted this position.[4]

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