Chapter 5 Second Book

Chapter 5 Second Book - Judges and Company Introduction 1...

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Judges and Company Introduction: 1. The rise of commercial arbitration offers an opportunity, always unusual, to explore further question of how new judicial systems emerge and institutionalize. 2. Second, the new lex mercatoria is a hugely significant fact of globalization, an example of the successful construction of a transnational political system by private actors. a. Lex mercatoria is rapidly emerging as a relatively comprehensive system of governance, one that will increasingly condition how state actors, including courts, manage markets. 3. We are sympathetic to the goal of those seeking to develop more sociologically based an political understanding of the relationship between institutions, firms, and markets- Litigation markets are a complex form of governance. If litigation markets help legal actors achieve effective levels of communication and coordination between non –hierarchically organized courts, lawyers are the prospective buyers in that market. If appeal is a mode of insuring the control of top courts over bottoms ones and more generally of improving central government over its local operatives, lawyers actually drive the system by counseling clients on whether an appeal is worthwhile. Globalization of Freedom of Contract: The Expression “freedom of contract” means a number of different things in different contexts. In American constitutional history, freedom of contract is a constitutional icon of laissez faire having nothing particularly to do with contract. In this context, freedom of contract stands for a substantive due process right of entrepreneurs to be free of government regulation in all their business activities, contractual and otherwise, or at least free of unreasonable government regulation. In contexts other than the American
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constitutional one, and particularly in the context of the nineteenth century civil law, freedom of contract was the banner of a theory of contract law, and of private law more generally, that emphasized the free will of individuals and the role of law in facilitating and supporting the freedom of individuals to make whatever social and economic arrangements among themselves they wish to make. The law of merchants: A very long history of international trade and of the invention by merchants, bankers, and carriers of forms of agreement to facilitate that trade. Perhaps in this area of human endeavour, more than most, the sequence of chicken and egg involving social practices and law is clear. The endlessly recalled merchants and money lenders of the medieval fairs, Hanseatic navigators, and so on create business customs, usages, practices and written instruments that the law subsequently absorbs. Much of law, indeed, is not nationally enacted statutory law but the mere recognition and adoption of business practices by courts called upon to settle disputes between merchants. Furthermore, many of the courts that do the adopting are not themselves purely organs of national or other governments but rather
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