American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Land-use change and forestry projects are considered a low-cost option for addressing climate change mitigation. In Canada, afforestation is targeted to sequester enough carbon to meet one-fifth of its international obligations, and at lower cost than emissions reduction. We examine economic aspects of the institutions and incentives needed to encourage landowners in Canada to adopt tree planting on a large scale. Based on data from a survey of landowners, the transaction costs of getting landowners to convert their land from agriculture to plantation forests appear to be a significant obstacle, possibly increasing the costs of afforestation projects beyond what conventional economic analysis suggests.

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Mitigating climate change by planting trees : the transaction costs trap

This paper critiques blockchain-based “smart contracts,” which aim to automatically and securely execute obligations without reliance on a centralized enforcement authority. Though smart contracts do have some features that might serve the goals of social justice and fairness, I suggest that they are based on a thin conception of what law does, and how it does it. Smart contracts focus on the technical form of contract to the exclusion of the social contexts within which contracts operate, and the complex ways in which people use them. In the real world, contractual obligations are enforced through all kinds of social mechanisms other than formal adjudication—and contracts serve many functions that are not explicitly legal in nature, or even designed to be formally enforced. I describe three categories of contracting practices in which people engage (the inclusion of facially unenforceable terms, the inclusion of purposefully underspecified terms, and willful nonenforcement of enforceable terms) to illustrate how contracts actually “work.” The technology of smart contracts neglects the fact that people use contracts as social resources to manage their relations. The inflexibility that they introduce, by design, might short-circuit a number of social uses to which law is routinely put. Therefore, I suggest that attention to the social and relational contexts of contracting are essential considerations for the discussion, development, and deployment of smart contracts.

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Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law

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Commercial Law Bibliography

The lack of gender parity in the governance of business corporations has ignited a heated global debate, leading policymakers to wrestle with difficult questions that lie at the intersection of market activity and social identity politics. Drawing on semi-structured interviews with corporate board directors in Norway and documentary content analysis of corporate securities filings in the United States, Challenging Boardroom Homogeneity empirically investigates two distinct regulatory models designed to address diversity in the boardroom: quotas and disclosure. The author's study of the Norwegian quota model demonstrates the important role diversity can play in enhancing the quality of corporate governance, while also revealing the challenges diversity mandates pose. His analysis of the US regime shows how a disclosure model has led corporations to establish a vocabulary of 'diversity'. At the same time, the analysis highlights the downsides of affording firms too much discretion in defining that concept. This book deepens ongoing policy conversations and offers new insights into the role law can play in reshaping the gendered dynamics of corporate governance cultures.

Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity

This Article examines the increased importance of norms in the law and economics of exchange. By studying how private parties bring order despite the absence of a coercive state and the idea of a norm as the result of an exchange that originates in the brain to accommodate all competing costs, one can better understand how modern states, private agreements, public laws, and market economies work in conjunction with the norms and human behavior patterns that underlie all communities. These institutions of norms, public law, private law and agreements, the state, and markets are all alternative and complementary ways of (and sometimes substitutes for) addressing the same problem of social ordering to maximize welfare. The core argument is that parties are driven by cost minimization to select the best mix of institutional supports for the facilitation of exchange and that cost minimization strategy should guide courts in determining whether to provide legal sanctions to norms.

The Law and Economics of Norms

This Article offers a unified theory that explains why courts, despite the compelling argument for deterrence, should not apply the no-effect rule of illegal contracts uniformly and why they should vary the type of relief according to the factual setting. It posits that a graduated relief structure will maximize efficient deterrence. An efficient deterrence scheme will preserve limited personal, judicial and societal resources without burdening legitimate transactions.

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Illegal Contacts and Efficient Deterrence: A Study in Modern Contract Theory

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties' behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay. Traditionally, commentators have advocated one of two general approaches to supply the methodology to govern judicial choices of contract meaning. The first restricts interpretation to the words used in the contract and the other accepts extrinsic evidence about what one or both of the parties to the contract intended that the words would mean or objective evidence of the meaning supplied by context or evidence of how ordinary commercial parties in a trade used the term or behaved in the current contract. This essay argues that it is the wrong to think that courts must make a dichotomous choice always to prefer extrinsic evidence or always to exclude it. Sometimes the appropriate interpretive methodology should explicitly forego extrinsic evidence while at other times it should embrace extrinsic evidence. The choice between the two methodologies should depend upon an assessment in each case about which interpretive methodology is most likely to (1) curb opportunistic behavior; (2) implement the parties' actual intentions, and (3) achieve these overall goals, in each case in a cost-effective way and thereby maximize gains from trade. The essay identifies a number of factors that may help to resolve which methodology will achieve those goals in different factual settings.

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Plain Meaning vs. Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule for Interpretation

Drawing from a model of bargaining behavior based on transaction cost economics, relational theories of contract,23 Williamsonian models of contracting behavior, and other economic insights, this Article argues that achieving the optimal solution for the complexities of bargaining relationships demands the adoption of a new legal default rule. This new default rule should have two aspects: First, the law should substantively recognize an implicit bargain, even in the absence of explicitly reciprocal communications. Second, the law should impose an obligation to perform that incorporates the terms of the parties' unexpressed, implicit bargain.

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Bargaining with Uncertainty, Moral Hazard and Sunk Costs: A Default Rule for Precontractual Negotiations

SUMMARYINTRODUCTION: THE EVOLUTION OF NORMS WITHIN ECONOMICS AND LAW: WHY NORMS WERE IGNORED AND WHY THEY MATTER UNDER REALISTIC MODELS OF BEHAVIOR IN WHICH NORMS EMERGE AS THE OUTCOME OF EXCHANGE TO REDUCE COSTS 467I. NORMS DEFINED: NON-ADJUDICABLE INSTITUTIONS ADOPTED TO RESOLVE PREFERENCES IN ENCOUNTERS WITH OTHERS: TOWARDS COST MINIMIZATION 473II. ORIGINS OF NORMS: NORMS AS SOLUTIONS OF THE COST MINIMIZATION FUNCTION: THE VIEW FROM INSIDE THE BRAIN 475III. SEPARATION OF LAW AND NORMS: EVOLUTION OF NORMS WITHIN ECONOMICS AND LAW 479IV. OVERALL NATURE, FUNCTIONS, AND CAUSES OF NORMS AND OTHER INSTITUTIONS: A TYPOLOGY OF NORMS 482A. Nature and Functions of Norms 482B. Typology: Norms That Are Inputs Versus Norms That Are Products of Governmental Intervention 485C. Examples: Norms That Are Eligible Inputs and Originate in Non- governmental Actions and That Are Self-enforcing Without Legal Intervention 4861. Example One: As a Supplement to Incomplete Contracts Where Law Declines to Intervene: Tipping: Self-enforcing Systems and Institutional Mechanisms 4862. Example Two: Airport Queuing: Providing Flexibility to a Rulein a Private Context: A Self-enforcing Norm with No Law Involved 4893. Example Three: The Maghribi Traders: Norms, Coalitions, and Networks as Private Enforcement Mechanisms for Contracts: Norms That Are Largely Self-enforcing but Have Some Limits on Self-governance 4914. Example Four: A Complete Private Ordering System That Shuns Outside Legal Enforcement: The Diamond Industry 4945. Example Five: Signaling Communicative Norms with Private Promulgation and No Legal Implementation: Dressing for Success 496V. NORMS AS INPUTS THAT EVOLVE FROM SELF-ENFORCING TO INCORPORATED-INTO-LAW OR THAT FUNCTION AS A COMPLEMENT TO LAW IN EXCHANGE AND NON-EXCHANGE TRANSACTIONS 497A. Inputs (i.e., Norms) That Are Incorporated: The Migration to Law 4971. Example One: Function: Minimizing the Costs of Transacting with Others: Reducing Measurement Costs: Norms That Are Initially Self-enforcing and Then Incorporated into Law: Formal Weights and Measures 4972. Example Two: Solving Problems, such as the Principal-Agent Problem and Other Forms of Opportunism, with Norms That Are Incorporated by Law into Contracts: The Plastics Industry ...4983. Example Three: Coordination Norms That Are Seemingly Self-enforcing but Co-exist with Organizations and Law: Driving on the Right 4994. Example Four: Neighborhood Norms Plus Law to Solve the Problem of Externalities: Lawn Care 500VI. NORMS THAT ARE THE PRODUCT OF A STATUTE OR A RULE AND MAKE ENFORCEMENT OF LAWS OR RULES POSSIBLE EVEN WITH NO OR MINIMAL SANCTIONS BY LAW: SOCIAL ENFORCEMENT NORMS 500A. Function One: Empowering Enforcement Norms with the Passage of a Law to Stimulate Secondary Enforcement Mechanisms 501B. Function Two: Passage of a Law to Contribute to the Refining ofthe Content of a Norm 503C. Function Three: Changing Norms: Dueling Norms, No Smoking Norms, and Racial Discrimination Norms 503CONCLUSION 505INTRODUCTION: THE EVOLUTION OF NORMS WITHIN ECONOMICS AND LAW: WHY NORMS WERE IGNORED, AND WHY THEY MATTER UNDER REALISTIC MODELS OF BEHAVIOR IN WHICH NORMS EMERGE AS THE OUTCOME OF EXCHANGE TO REDUCE COSTSBoth law and economics largely ignored norms until the 1990s.1 Norms remained the exclusive province of the social sciences.2 For the purposes of this Article, norms include patterns of behavior, impulses, and spontaneous ordering initially enforceable by non-legal sanctions (i.e., they are initially non-adjudicable) and promulgated by private parties.3Classical economics ignored norms for several reasons.4 First, because economics used abstract models of behavior built on rational choice theory and the individual utility function,5 it did not study how people actually behaved and ignored the frictions of real exchange as well as norms-the self-imposed constraints that parties use to reduce such frictions. …

Juliet P. Kostritsky

Papers

The Law and Economics of Norms

Illegal Contacts and Efficient Deterrence: A Study in Modern Contract Theory

Plain Meaning vs. Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule for Interpretation

Bargaining with Uncertainty, Moral Hazard and Sunk Costs: A Default Rule for Precontractual Negotiations

The Law and Economics of Norms