A new wave of legal scholarship has challenged the dominant neoclassical account of price formation, demonstrating that prices are not formed according to its prescripts and do not perform the task of economic coordination in line with its axioms. As opposed to emerging from voluntary exchanges between private actors, prices on this alternative reading are the products of processes of political and legal ordering that constrain the choices and opportunities of some social groups as they enable and empower others. Prices, legal scholars insist, are 'legally engineered'. But what possibilities emerge from such a reframing? Could legal analysis be used to model and predict the behaviour of prices in the political economy? And would doing so give us any inroads into making the prices that seem to 'inhere' in the objects around us any more just? In this article, I build the case for the development of a new research programme that investigates the role of law in processes of price formation. I also problematize the engineering metaphor that stands at the centre of contemporary legal scholarship on prices. Drawing on the traditions of Old Institutionalist Economics (OIE), Legal Realism, and Marxist Economics, I argue that prices are not produced by the state mechanistically commanding the political economy through its interventions and legal frameworks, but emerge from the deeper, historically conditioned structure of legal rights in society. Highlighting that capitalism must be understood as both a juridical order and as a totality, I argue that in order to develop a legal theory of price with explanatory power, we first need to understand how the 'system of mutual coercion' that OIE and Realist scholars show to be central to the formation of market prices operates on the global scale.
Scholarship and even political and policy discourse regarding migration and borders tend to focus on the migration of natural persons, and (inter)national borders as the domain of the nation-state, conceived of as an expression of the latter's sovereignty. In liberal theory, nation-state borders are critical legal and political infrastructure of collective self-determination, bulwarks for democratic self-rule. This Article is a provocation to consider migration, borders, and sovereignty from a different vantage-one that centers the migration of transnational commercial corporations, and their capacity to constitute, govern and wield borders and migration to advance the will of their constituencies . I focus in particular on corporations as migrants that are uniquely threatening to democratic self-rule generally, and especially to the self-determination of (post)colonial nation-states.
How can the development of public international law work in a decentralised and pluralist international society, where actors and institutions increasingly and deeply disagree on key questions? The paper identifies two concepts for discussing its viability: clarity, about the current law and the claim for change, and coherence of that claim with the existing law, both substantively and in relation to relevant procedures and institutions. After explaining how these concepts operate in international law more generally, the paper considers their application to the case study of compensation within the particular institutional setting of the United Nations International Law Commission.
A natural response to those who commit offence in highly disordered mental states is to consider that they did not know what they were doing at the time. This common response is compatible with the theoretical idea that in states of sane or insane automatism, self-awareness is lost, and our agential connection to our capacities breaks down. It is also consistent with a philosophically coherent grounding for exculpation in such cases, one based on the absence of non-observational knowledge, and on the defeat of agency that flows therefrom. The theoretical good sense in our natural response to affected agents (they did not know what they were doing!) reveals problems in the current law of automatism, and illuminates a more apt defence.
The liberal democratic ideal that public law can keep the exercise of public power within reviewable bounds and that administrative powers are necessarily subordinated to the law has been, in the EU and elsewhere, an important condition supporting the legal and political legitimacy of public power-an antidote to the authoritarian tendencies of administrations. In the EU, it has turned the Court of Justice, qua ultimate arbiter of EU law, into a pillar of integration. This perspective, however, ignores that some of the regulated activities can hardly operate under such subordination. The difficulties of judicial review in the face of technically complex and future-oriented regulatory activities, carried out under conditions of uncertainty, and having political implications, turn these challenges to the law into a matter of articulating a role for judicial review that could still provide an effective check on public power. But this discussion misses an important underlying difficulty: often, legal norms simply do not provide grounds for review that are external to the administrative activity that they are meant to constrain. In such circumstances, administrations acquire constitutive powers, determining the meaning of the law that binds them and defining the public interests that they are bound to pursue. Courts can hardly constrain such powers. In this article, I analyse such instances in the areas of EU bank resolution and pesticide authorization. Although this is not an EU law-specific problem, it has specific implications in a polity where public authority asserts itself as being fundamentally dependent on the law.
