Much contemporary discussion of ‘the market’ assumes that markets have a true nature or immanent logic. In fact, however, markets arise and operate through law, so that no particular market structure is inevitable and every market order is the result of a complex set of legal and political choices. This introductory Essay organizes the Articles that comprise this Issue of Law and Contemporary Problems, in the light of the legal construction of markets and offers an intellectual roadmap for a legally informed study of the market. Drawing on the insight that markets are plural and open to variable design, we reflect on both the options and constraints faced by law’s architects. We discuss certain risks in market design, including the familiar dangers of unjust distribution and excessive commodification, and the less familiar danger that markets might prove self-undermining. In order to understand the risks and rewards of market orderings and to take on the responsibility of market design, we close by identifying three ideal-typical visions of markets – as efficient, democratic, and liberal – and summarizing the values that these ideal-types deploy to addresses these challenges.
Dagan, Hanoch and Dorfman, Avihay and Kreitner, Roy and Markovits, Daniel, The Law of The Market (January 9, 2020). Law and Contemporary Problems, forthcoming.