Marietta Auer, ‘Bargaining with Giants and Immortals: Bargaining Power as the Core of Theorizing Inequality’, Law and Contemporary Problems (forthcoming), available at SSRN (28 August 2023). In this article, Marietta Auer, Director of the Max Planck Institute for Legal History and Legal Theory, takes a sophisticated and nuanced look at the role of unequal bargaining power as it relates to both economics and legal theory. From my own perspective as an unrepentant libertarian and capitalist, there is much in the article with which I disagree. However, Auer’s observations on the importance of bargaining power inequality, the relationship between law and markets in a [quasi-]capitalist economic and political system, and the futility of attempts to use law to redistribute bargaining power among market actors are insightful, creative, and require engagement by those working on the problem of bargaining power. Auer’s analysis begins with a survey of both classical and neoclassical economic arguments regarding the neutrality of markets … (more)
[Daniel Barnhizer, JOTWELL, 16 February 2024]
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