Foreword: How to Think About Law and Markets

Law and Contemporary Problems, Mar 2017

Joseph Blocher, Kimberly D. Krawiec

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Foreword: How to Think About Law and Markets

FOREWORD: HOW TO THINK ABOUT LAW AND MARKETS We started the Law and Markets Project at Duke Law School in the summer of 2015 in an effort to better understand the relationship between the legal system on the one hand and markets on the other. That relationship is central to understanding the nature and practical impact of legal rules, the degree to which those rules are shaped by economic forces, and the ways in which law and markets should or can operate independently. Further, it inevitably raises foundational and difficult questions. What are (or should be) the limits of markets? When, and through what mechanisms, should the law restrict the free exchange of goods and services? To what extent, and how, should the legal system address market driven inequalities in income, wealth, or access to goods and services like health care and education? By addressing these questions, we hoped to generate interesting conversations that would deepen people's understandings of their own and each other's work and set the stage for collaboration going forward. We chose to focus our efforts on the Duke community, so as to help build those conversations and relationships. Given our colleagues' broad and deep substantive and methodological expertise, this hardly felt like a limitation. This breadth of expertise quickly became apparent during the first stage of the Project: a summer discussion series in which colleagues helped lead conversations about classic works and debates in law and markets1-from the foundational debate over altruism and markets in Richard Titmuss's The Gift Relationship,2 to the role of markets as engines for development in Amartya Sen's Copyright © 2017 by Joseph Blocher and Kimberly D. Krawiec. This article is also available online at http://lcp.law.duke.edu/. * Duke Law School. This symposium issue is the culmination of the Law & Markets Project at Duke Law School, which was possible thanks only to the generous support of Dean David Levi and the enthusiasm and dedication of our colleagues and students. We are grateful to all of them. More information about the Project can be found at https://law.duke.edu/lawmarkets/. 1. For a full list of readings, see The Duke Project on Law & Markets, Readings and Resources, https://law.duke.edu/lawmarkets/readings/ [https://perma.cc/Z5ZY-6XM2]. 2. See generally RICHARD M. TITMUSS, THE GIFT RELATIONSHIP (1970) (contrasting voluntary and compensated systems of blood donation, and arguing that a nonmarket, altruistic system may be more effective in some ways). For two leading responses, see generally Kenneth J. Arrow, Gifts and Exchanges, 1 PHIL. & PUB. AFF. 343 (1972); Peter Singer, Altruism and Commerce: A Defense of Titmuss Against Arrow, 2 PHIL. & PUB. AFF. 312 (1973). - I INTRODUCTION Development as Freedom,3 to the relationship between the constitutional status of corporations and Milton Friedman’s The Social Responsibility of Business is to Increase Its Profits.4 We particularly thank our colleagues Jonathan Wiener, Barak Richman, Wayne Norman, Sam Buell, and Rachel Brewster for leading the discussions, which were enlightening, engaging, and occasionally involved pointed disagreement. The conversations continued throughout the year with a seminar and colloquium, which gave us a chance to bring in outside scholars—including Alvin Roth, co-recipient of the 2012 Nobel Prize for Economics—whose work addresses the relationship of law and markets from a variety of substantive, moral, and methodological angles.5 Our colleagues and students provided probing questions.6 We provided food and wine. The seminar speakers included Guy Charles (Duke), Maggie Lemos (Duke), Kara W. Swanson (Northeastern), Jason Brennan (Georgetown), Larry Zelenak (Duke), John Michaels (UCLA), Katherine Bartlett (Duke), Mitu Gulati (Duke), Mario Macis (Johns Hopkins), Frank Dobbin (Harvard), Marcia Yablon-Zug (South Carolina), James Hathaway (Michigan), Alvin Roth (Stanford), and Lisa Griffin (Duke). They presented articles and book chapters on bride-selling,7 the history of selling body parts,8 the tax implications of selling body parts,9 the moral limits (if any) of markets,10 kidney exchanges,11 common but differentiated responsibility for refugees,12 discrimination by customers,13 No. 1 2017] running government like a business,14 the market dimensions of plea bargaining,15 empirical research on the effect of financial incentives on blood collection,16 and derivatives trading.17 We had every reason to expect good things, because ours was not the first such initiative at Duke. In the summer of 2011, our colleagues Curt Bradley and Mitu Gulati launched the Custom and Law Project, which brought together scholars within and without the law school to discuss the influence of custom on law.18 They were, as we are, fortunate to have extraordinary support from Dean David Levi, who made both Projects possible. The Custom and Law Project included faculty discussions, workshops, a seminar, a (...truncated)


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Joseph Blocher, Kimberly D. Krawiec. Foreword: How to Think About Law and Markets, Law and Contemporary Problems, 2017, Volume 80, Issue 1,