Legal Infrastructure – Madisonian: On Governance and More

I am aggregating the posts from the recent online symposium at Prawfsblawg concerning two relatively new books: Gillian Hadfield’s Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy and The Future of the Professions: How Technology Will Transform the Work of Human Experts by Richard Susskind and Daniel Susskind. In different but related ways, both books are speaking to both global and local shifts — now well underway — in what law is, what law does, and what roles lawyers and other legal institutions play in economies and cultures.

Gillian Hadfield makes a lot of the phrase “legal infrastructure,” as in

“that long list of legal resources that you are going to need to get your business venture off the ground …. Legal infrastructure includes not only the legal rules you can find in law books but also the quality–and cost–of the legal advice, planning, and solutions you can access. It includes not only the formal processes in regulatory agencies and courts but also the intangibles that affect outcomes: how lawyers and judges behave with one another, what and how they charge, what they believe is the right strategy or decision in a case, the advice they will, in practice, give. … Legal infrastructure is a somewhat ponderous phrase for this amorphous collection of legal materials, organizations, norms, beliefs, and practices. … The function of the legal infrastructure we’re talking about is to provide a reliable framework for interaction–which mere words on paper can’t be without a lot of other features being in place.” [86-87]

Her core thesis is that today’s “legal infrastructure” is out of date and inadequate to serve the needs of Thomas Friedman’s “flat world” (i.e., highly networked, globally complex, differently hierarchical world), in large part because that infrastructure is centrally controlled by state-based suppliers. When we think “law,” to a significant degree we still default to thinking, “publicly-enacted law.” That is: rules evolved for the 19th century (in some cases) or the 20th century (in others); rules that have monopoly power over the possible market for regulation. Open the market for legal infrastructure to competitors and competition, she argues, and new institutions built largely out of private rules and private regulation will enable new, great things.

That is a simple summary of a complex argument; the book is well worth reading in its entirety. Her claim regarding legal infrastructure arrives early on, and she doesn’t dwell on it. I think it’s worth pausing and giving some thought to what “infrastructure” means and what it does — even in the economics-inspired framework in which the book is situated overall. My comment (next) goes more to the book’s premises than to its payoffs:

“Infrastructure” may be used here metaphorically or literally, but either way, it’s a provocative and potentially useful framing (note that the phrase recalls, in part, a 1999 paper by Ron Gilson, “The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not To Compete”). But going down that infrastructural pathway does not necessarily require that we set up state supply and market supply as the only choices. Other regulatory modalities are possible, and others are practiced. For much more rich analysis of the economic implications of treating a resource (such as law) as infrastructure (as Hadfield proposes), see the fabulous book “Infrastructure: The Social Value of Shared Resources” by Brett Frischmann.

And with that, here are the posts in the Prawfsblawg symposium: