Buffalo Law Review
Justin Desautels-Stein, The Market as a Legal Concept, 60 Buff. L. Rev. 387 (2012), available at https://scholar.law.colorado.edu/articles/136.
In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images — competition and control — is common ground. Unfortunately for all of us, this ground is a mirage. The idea of a pre-legal, “self-regulating” market has always been, and still is, a deep and abiding fiction.
This Article argues that our continued commitments to the legal distinctions between competitive and controlled markets are far more dangerous than they are pedantic. If there is serious interest in avoiding the circular pitfalls of market society, which no doubt there is, attention must be paid to the manner in which the market is legally constructed from the bottom up, and the fact that there is nothing natural or necessary about that construction. In order to understand the dominant characterization of market society, we must map the basic legal postures that populate our conversations about free markets and the interventionist state — postures that have been built in the fields of classic and modern liberalism. This Article endeavors to stylize these liberalisms through an analysis of representative texts from John Locke, Henry Carter Adams, and Frank Knight.
Though important, the awareness provided by this intellectual history of liberal legalism is insufficient for serious thinking about market reform — what is also needed is a critique of that history, a critique that reminds us that while liberalism provides legal rules for the creation and maintenance of the market, these rules are never neutral with respect to the distribution of wealth and resources among market players. In service of that recollection, the Article surveys three moments in a critical history of economic liberalism through a sample of texts from Karl Marx, Robert Hale, Morris Cohen, and Duncan Kennedy. To be sure, a successful strategy of market reform requires a great deal more than a familiarity with the legal styles of classic and modern liberalism, and leftist critiques of the liberal market’s legal structure. But that’s hardly the point. The point is that a successful strategy of market reform can’t do without them.
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