PUBLISHED:August 10, 2015

Duke Law Project on Law and Markets focuses on strengths and limits of markets

Duke Law faculty and students are undertaking a yearlong study of topics at the intersection of law and markets to investigate foundational questions about how law can address market inequalities, how market forces might be effective in areas where laws are ineffective, and the philosophical underpinnings of market-driven and regulatory approaches to various issues.

The Duke Law Project on Law and Markets, led by Professors Kimberly Krawiec and Joseph Blocher, includes faculty workshops, a colloquium for faculty and seminar students, a speaker series, and a symposium that will result in a volume of relevant scholarship in the journal Law and Contemporary Problems.

“Our goal is to bring the community together around a broad topic and to really think hard about it,” said Krawiec, the Kathrine Robinson Everett Professor of Law. “Joseph and I were excited about law and markets because of work that the two of us had been doing separately about the role of markets as they relate to law.”

Krawiec, a scholar of corporate law, securities, and derivatives, also studies non-traditional and taboo markets, such as those for babies — via sperm and egg donation, surrogacy, and adoption — and for transplant-ready human organs. In some of his recent works Blocher, a scholar of constitutional and property law, has contemplated interstate and sovereign border markets as a possible solution to a range of economic and political problems.

About 30 faculty members took part in the project’s first event on June 1, a discussion of a controversial 1970 article on blood donation, which argued that a system based on altruism is superior to a market-based system regulated by self-interest. “We had a very lively, two-hour discussion,” said Blocher. “It was a great kick-off.”

Other summer workshops have included a discussion of markets and environmental regulation led by Jonathan Wiener, the William R. and Thomas L. Perkins Professor of Law and Professor of Environmental Policy and Professor of Public Policy, and one on the relationship between economic development and other freedoms led by Barak Richman, the Edgar P. and Elizabeth C. Bartlett Professor of Law and Professor of Business Administration.

The wide range of topics is, in many ways, the point of the overall inquiry, Krawiec said.

“It’s related to a broader notion of market design, which is popular with economists,” she said. “Lawyers have a role to play, because many of the objections to having markets operate in certain areas are things that can be dealt with by law.” The law, for example, can address inequalities by providing subsidies, she said.

“Markets involve more than money changing hands. A market is a mechanism for allocating scarce resources, and the law has a lot to say about how that should operate, given the various public policy goals we have.” That’s true, she said, of organ donation, “which is not a literal market, because it’s illegal to trade in organs.”

The Project on Law and Markets was inspired by the Duke Project on Custom and Law that occurred over the course of the 2011-2012 academic year and resulted in a symposium issue of the Duke Law Journal with articles on such topics as customs in the art market, norms in kidney exchange programs, and how the Internal Revenue Service draws on custom to under-enforce portions of the tax code. The initiative sparked a number of scholarly collaborations and Blocher and Krawiec hope that success will be replicated in the current project.

“We’re hoping to connect people who might not otherwise be connected in dealing with problems of law, problems of scarcity, problems of inequality,” said Blocher. “Obviously the work that Jennifer Jenkins and James Boyle do regarding the public domain and what goes into and what stays out of the market is hugely important and interesting, but other scholars might not connect it to their work. It might just be seen as a sort of walled-off, intellectual property issue.” Boyle, the William Neal Reynolds Professor of Law, is a leading scholar of intellectual property and the founder of the Center for the Study of the Public Domain, which Jenkins ’97 directs. 

The two-credit Law and Markets Colloquium will engage students in discussion of assigned readings and workshop presentations on law and markets. Along with the faculty workshops and symposium, it is likely to expose a range of assumptions and differences of opinion about the role of law and the role of markets, said Blocher. “People are going to have very different, maybe irreducible, normative visions about what’s good and proper for the use of money or other market incentives. But like any question of law, markets, or justice, we don’t anticipate a single answer.”

“It’s more about unearthing the questions we should be thinking about,” said Krawiec.