Capitalism and Freedom

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

Introduction: Institutional Change, Capitalist Development PART I: GRADUAL CHANGE: FIVE SECTORAL TRAJECTORIES 1. Five Sectors 2. Industry-wide Collective Bargaining: Shrinking Core, Expanding Fringes 3. Intermediary Organization: Declining Membership, Rising Tensions 4. Social Policy: The Rise and Fall of Welfare Corporatism 5. Public Finance: The Fiscal Crisis of the Postwar State 6. Corporate Governance: The Decline of Germany Inc. PART II: SYSTEMIC CHANGE: PATTERNS AND CAUSES 7. Systemic Change: Five Parallel Trajectories 8. From System to Process 9. Endogenous Change: Time, Age, and the Self-Undermining of Institutions 10. Time's Up: Positive Externalities Turning Negative PART III: DISORGANIZATION: BRINGING CAPITALISM BACK IN 11. Disorganization as Liberalization 12. Convergence, Non-convergence, Divergence 13. 'Economizing' and the Evolution of Political-Economic Institutions 14. Internationalization 15. German Unification 16. History 17. Bringing Capitalism Back In

(Reseña) Re-Forming Capitalism: Institutional Change in the German Political Economy.

The traditional view of the professions is that they are largely free of the hierarchical forms of social control characteristic of other kinds of occupations; instead, they are self-regulating, subject only to informal collegial control. As a result of events in the past few decades in the United States, analysts now believe that the traditional autonomy of professions is eroding. This paper reviews two theories that emphasize this process, one focusing on deprofessionalization and the other on proletarianization. It concludes that the available evidence does not support either theory sufficiently to make them analytically useful; it advances an alternate theory that emphasizes the formalization of professional social control. This third viewpoint is based on the finding that the professions—as corporate bodies—have remained relatively autonomous. Antitrust decisions, political pressure to exercise more control over errant members, and the administrative requirement of greater accountability in large org...

The Changing Nature of Professional Control

The implications for labor markets of contracts to avoid hold-up of investments are assessed. Employment at will protects the returns on a firm's general and specific investments without wages increasing with tenure. With turnover costs, fixed but renegotiable wages can protect general investments by both firm and employee, and generage wage stickiness without adversely affecting employment. Employment contracts that induce efficient specific investments by both firm and employee are problematic so it makes sense, wherever possible, for one side to make all such investments. With private information, fixed wages may induce fewer inefficient separations than employment at will.

Contracts, hold-up and labor markets

Guy Davidov and Brian Langille have assembled a stable of prominent academics to address The Idea of Labour Law (Oxford U. Press 2011). Their responses vary from cries of despair to proposals for major reformulation to less radical adaptation to contemporary circumstances that have conduced toward a lessened relevance for collective bargaining and a heightened concern for market efficiency. This essay attempts to unpack these critiques, to provide a deeper historical framework, and to emphasize the continuing vitality of societal concern for the consequences of the marketization of labor as the law’s axial concern.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1935067_code343651.pdf?abstractid=1935067&mirid=1

Book Review – The Death and Transfiguration of Labor Law

Professor Finkin unpacks the critique of tenure written by the economist David Breneman for the American Association of Higher education's New Pathways project. Finkin argues that Breneman's argument is historically inaccurate, that his economic assessment is indeterminate of the result he claims for it, and that his proposal for change is intrinsically inimical to academic freedom. Finkin sees Breneman's proposal as an effort to socialize young academics to accept a market-driven model of the professoriate that pits young against old and more applied disciplines against the humanities and many of the social sciences. He questions whether Breneman's proposal will better conduce toward "the common good" than does academic tenure. David Breneman, a distinguished economist of higher education, university Dean and former college president, questions the continued viability of academic tenure and proposes a scheme for its elimination, at least for those relatively underendowed and relatively unselective colleges and universities that constitute the majority of higher education (1997). He takes an "historical and economic" perspective to advance his argument; but, the tack he takes is freighted with sociological significance as well. In what follows, I propose to examine his arguments and his proposal; and to raise a question concerning the academic world he would move us toward. CHANGE AND DYSFUNCTION "[C]hanging circumstances," Breneman argues, "create a need to rethink the employment relationship in higher education" (1997:3). The circumstances he adverts to are economic and social; and a benchmark against which that change is to be measured is 1940, "when the AAUP's statement on tenure and academic freedom was written and widely accepted" (1997:1) Just what these changes are is advanced with verve: *Direct all correspondence to: Matthew W. Finkin, College of Law, 306 Law Building, The University of Illinois, 504 East Pennsylvania Avenue, Champaign, IL 61820. This content downloaded from 157.55.39.35 on Sat, 03 Sep 2016 04:02:22 UTC All use subject to http://about.jstor.org/terms 730 SOCIOLOGICAL PERSPECTIVES Volume 41, Number 4, 1998 [W]e are well into a period of the entrepreneurial institution, an era when each college and university is rather mercilessly cast into competition for survival, for growth, for quality enhancement. Market forces are operating on institutions in powerful ways, and without the buffers that earlier periods provided. This change is not only in fact; it has ideological roots as well, as talk of privatization, limited government, productivity, assessment, outcomes, and efficiency dominates much public discourse about higher education....As a result, colleges and universities have lost much of the autonomy and independence from the market that they enjoyed in earlier periods. Higher education is now a mature industry... .(1997:2). Consequently, for many institutions tenure is "largely dysfunctional" (1997:4) in ways that Breneman catalogues: (1) as a drag on institutional flexibility in this new, market-driven world, a flexibility "needed for institutional survival"; (2) as imposing a cost on junior faculty who, failing to achieve tenure, face a labor market of excess supply; (3) as depressing academic salaries; and, (4) as depressing the total level of academic employment. As will be shown below, Breneman's historical arguments are mistaken and his economic arguments are indeterminate of the result he would reach. But a word before addressing them. Ordinarily, one would think the "dysfunctionality" of tenure would require an assessment first of the extent to which it performs its intended function i.e., primarily the protection of academic freedom, and, second, of whether the drawbacks inherent in the system, and drawbacks there are, outweigh its advantages in that regard. But Breneman dismisses the relationship of tenure to academic freedom in the passing observation that academic freedom can be protected in other ways. In other words, tenure never had a chance: If academic freedom can be protected adequately without tenure, then tenure could not possibly be necessary for its intended purpose, and any drawback renders tenure "dysfunctional" by definition. Historical Change in Institutional Circumstances Breneman argues that institutions today face a stark threat to their very "survival," in contradistinction to the circumstances obtaining when the 1940 Statement of Principles on Academic Freedom and Tenure was negotiated, when institutions were far more "buffered" and far more autonomous from market forces. Let us see. Negotiations between the American Association of University Professors (AAUP) and the Association of American Colleges (AAC), the then leading organization of liberal arts colleges (mostly private and many denominational), began in 1937.1 A draft was agreed to two years later, and a final document was accepted by both organizations the following year. These negotiations were informed by a comprehensive study conducted by the AAUP and financed by the Carnegie Foundation for the Advancement of Teaching, Depression, Recovery and Higher Education. According to that study, in 1931-1932, there were 931 colleges and universities in the United States: 262 (28%) were publicly controlled; 669 (72%) were private, 464 of these under denominational control. The vast majority This content downloaded from 157.55.39.35 on Sat, 03 Sep 2016 04:02:22 UTC All use subject to http://about.jstor.org/terms Tenure and the Entrepreneurial Academy 731

Tenure and the entrepreneurial academy: A reply

The impact of federal retirement-age legislation on higher education : a report of the Special Committee on Age Discrimination and Retirement

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Matthew W. Finkin

Papers

Book Review – The Death and Transfiguration of Labor Law

Tenure and the entrepreneurial academy: A reply

The impact of federal retirement-age legislation on higher education : a report of the Special Committee on Age Discrimination and Retirement

Reflections on Labor Law Scholarship and Its Discontents: The Reveries of Monsieur Verog

"Privacy: Its Constitution and Vicissitudes" - A Half-Century On