Eric Gerding, commenting on a post by his co-blogger Gordon Smith, wonders if the ALI should veer from its core task of restating the common law into such regulatory subjects as corporate criminal liability, copyright, financial regulation, cyberlaw and international consumer protection.
Erik suggests that the ALI “assemble a pool of experts on given regulatory issues who either alone or in groups could quickly respond to proposed rulemakings.” Otherwise, he fears, Wall Street will push its interests, leaving the public interest unprotected. He says academics would have stronger incentives to get involved in these issues if they could do with the ALI’s imprimatur. Erik proposes that the ALI either generate a consensus of experts or present a broad “spectrum of positions.”
The problem is that any legislature, even a private one like the ALI, has the characteristics of a political organization, with the interest group politics that entails. See Schwartz & Scott, The Political Economy of Private Legislatures, 143 U. Pa. Law Review 595 (1995) (discussing the ALI); Kobayashi & Ribstein, Economic Analysis of Uniform State Laws, 25 Journal of Legal Studies 131 (1996) (discussing NCCUSL). The difference is that the ALI’s positions, whether one or many, come wrapped in the credibility that surrounds the ALI’s less policy-oriented restatements.
I question Erik’s conclusions that academics need to speak through the ALI. Even as theory and data increasingly trump doctrine in academia, there are plenty of career rewards for making prominent policy proposals.
And if law review articles and academic books aren’t enough, the ALI still isn’t the best alternative. Private groups, including associations and law firms representing all kinds of causes, can compete in the policy arena.
Moreover, private parties could sell their proposed rules to a market consisting of legislatures, bureaucrats and private groups. This is an example of the “legal products” Kobayashi and I discuss in our Law’s Information Revolution. We expand on the private lawmking idea in a work in progress that will soon see the light of day.
In short, the solution to public lawmaking bottlenecks isn’t still more political bodies but a more open free market in policy proposals.