Even in the deep and quiet precincts of the law, some of the din of widespread socio-economic change can be dimly heard. Fields that have been void of contention since time immemorial—or where, at any rate, the “owners” had all the scholars eating pretty peacefully out of their hands, and the ideology was rarely confronted by anybody actually willing to bust up the family crockery—get a little ferment in the barrel at last, though chalk dust is bunged in profusely, in the hope of smothering any high-octane insights that are too terribly non-standard.
The most thoughtful and least indoctrinated economists and law professors begin to catch on. One Nobel Prize winner experiences the pennydrop. America’s best property law theorist publishes an instant classic explaining in glorious detail the social harmfulness of too much ownership. Finance capitalism suddenly has the most serious heart attack since 1929. The age-old Totentanz of Credit begins.
The movement reaches the end of Stage One.
This alternate universe, of all the improbable universes, is the one we happen to live in, as you can see. If the movement could be said to have had a center, other than Richard Stallman’s cranium, that center was on the premises—at and nearby Columbia Law School—where it is nurtured by an absence of institutional cooperation and an ostentatious lack of faculty interest. I accept this benign neglect with gratitude and I wish to reciprocate on this occasion by discussing a more interesting topic for the current audience.
I want to consider the implications of some recent observations concerning contemporary transnational contracting behavior.
We were accustomed already in the twentieth century to the distinction between transactional contracts, in which risks connected with a single chain of events are allocated, and continuing relationships—in which contracts are less a mechanism of risk allocation and more a constitution for later shared decision-making in response to contingent events. Contrary to twentieth century theory, however, it turns out that transnational circumstances will have less and less significance in the context of “discrete” or transactional relationships over time.