What law is can be determined by the character of the institutions that make, interpret and enforce law. The interaction of these institutions moulds the supply of, and demand for, law. Focusing on this interaction in the context of US property rights law and the debates about private property and the rule of law, Komesar paints an unconventional picture of law and rights shifting and cycling as systemic factors, such as increasing numbers and complexity. This strain produces tough institutional choices and unexpected combinations of goals and institutions. It also frustrates the hopes for courts, rights and law embodied in notions such as the rule of law and constitutionalism. Although there may be an important role for law, rights and courts both in the US and abroad, it cannot be easily defined. This 2002 book proposes a way to define that role and to reform legal education and legal analysis.
Author(s): Neil K. Komesar
Publisher: Cambridge University Press
Year: 2001
Language: English
Pages: 206
Tags: Law, Jurisprudence, Economic Analysis, Komesar, Comparative Institutional Analysis
Contents
Preface
PART I. THE BASIC FRAMEWORK
1. Supply and Demand
2. The Spectrum of Rights
I. Boomer - The Common Law and Institutional Choice
A. The Market versus the Courts
B. The Political Process versus the Courts
C. Generating the Spectrum
II. Some General Lessons
III. Communities, Markests, Participation, and Methodology
IV. Conclusion
3. The Supply Side - The Little Engine of Law and Rights
I. The Adjudicative Process
II. Numbers, Complexity, and the Dynamics of Litigation
III. Numbers, Complexity, and Class Actions
IV. Conclusion
PART II. LAND USE AND RIGHTS
4. Zoning and its Discontents - Political Malfunction and Demand for Rights
I. Conflicting Versions of Under- and Overregulation
II. The Two-Force Model of Politics: Fear of the Few and Fear of the Many
III. Judicial Responses
IV. Conclusion
5. Just Compensation - The Problems of Judicial Pricing
I. The Limits of Lucas
II. The Proposals
III. The Demand Side: Just Compensation and Political Malfunction
IV. The Supply Side: The Courts and Just Compensation
V. The Strange World of Nollan and Dolan
VI. Conclusion
6. High Stakes Players and Hidden Markets
I. Focusing on Majoritarian Bias and Ending the Villain Hunt
II. Dealing with Majoritarian Bias
III. Conclusion
PART III. LAW'S LAWS
7. Theories of Property - From Coase to Communitarianism
I. The Evolution and Function of Property: The Economic Theory of Property Rights
II. The Search for Communities
III. Communites and Norms Meet Numbers and Complexity
IV. Conclusion
8. Numbers, Complexity, and the Rule of Law
I. Shifts and Cycles: The Decreasing Likelihood of Stable and Certain Law
II. Confronting the Supply Side: Images and Realities of Courts
III. Confronting the Demand Side: Communitarians versus the Rule of Law
IV. Conclusion
9. Changes
I. Changing Legal Analysis
II. Changing Legal Education and Discourse
III. Changing Economics
IV. Law Around the World
V. Law's Future
VI. Breaking the Cycle
References
Index
