WWS 333 Final Review

How to create order without despotism?

1. "Power over" versus "power to": power as relation versus power as capacity 2. State power and state capacities: despotic power versus infrastructural power (Michael Mann) 3. Rule of law (limitation on despotic power and augmentation of infrastructural power); thus law has uses that make it more calculable 4. Rule of law versus "rule by law"

The Dark Side of American History

American history riddled with extractive institutions subject to both utilitarian and political calculi

The Classical Meaning of Civil Society

As compared to a "state of nature" or barbarism 1. In Locke, Rosseau civil society was seen in contrast to "the state of nature" 2. Adam Ferguson conceived of civil society as the end-state of society 3. People in the New World were imagined to be living in a state of nature

The "method of enterprise"

Capitalism is present wherever the industrial provision for the needs of a human group is carried out by the method of enterprise. (Weber)

Putnam's spill-over theory of social capital and civic engagement

In "Bowling Alone: The Collapse and Revival of American Community,: Putnam argued that while Americans have become wealthier, their sense of community has withered. Cities and traditional suburbs have given way to "edge cities" and "exurbs" - vast, anonymous places where people sleep and work and do little else. As people spend more and more time in the office, commuting to work and watching TV alone, there's less time for joining community groups and voluntary organizations, and socializing with neighbors, friends and even family.

Exemplary institutions of modernity

These institutions are the epitome of contemporary life 1. Citizenship: publicly ordered institution 2. Contract: privately ordered within a legal framework 3. Science: privately ordered outside a legal framework

What, at minimum, is democracy?

Those who hold power are accountable to the people

The antagonistic expansion of print

When one side adopts technology, its opponents have no choice but to follow suit.

Institutions and organizations: two different views (D. North/sociology)

Whereas North sees institutional constraints as shapers of organizations and their objectives, the sociologists in general and DiMaggio and Powell in particular think that rational actors make their organizations increasingly similar as they try to change them

Changes that Define Modern World

Modern world defined by changes: 1. From subjects to citizens 2. From status to contract 3. From speculation to science

Federalism and the "inner face" of sovereignty

Relationship of federal government to subsidiary units

Skocpol's account

1. From membership to management 2. Changing political opportunity structures

"The Creation of the Media: Political Origins of Modern Communications" by Paul Starr

1. Introduction: United States has followed a distinctive developmental path in communications ever since the American Revolution. The origins of that path lie in the country's founding as a liberal republic and its response to the peculiar challenges of building a nation on a continental scale. The consequences, albeit unintended, have been to endow the United States with a source of economic, political, and even military advantage and to make the American media a formidable power in themselves. United States' pattern of early leadership and persistent advantage in communications stems fundamentally from constitutive, political decisions that led the United States from its founding on a course sharply diverging from the patterns in Britain, elsewhere in Europe, and even in Canada. 2. Ch. 1: If a public sphere was to emerge - and no inexorable force dictated that it would - two conditions had to be met: the creation of a new network infrastructure and the collapse of old norms [of secrecy and privilege], if not the fashioning of new ones. The rise of capitalism, with attendant increases in the circulation of commodities and information, contributed particularly to overcoming infrastructural barriers. In a variety of ways, state policy also created the bases of the public sphere. States reduced the infrastructural barriers to communications by developing roads and postal systems. States in the seventeenth and eighteenth centuries also became patrons of learned academies and publications as they sought to centralize power in its symbolic as well as material forms. But neither the rise of capitalism nor state-building guaranteed a change in norms of secrecy about government proceedings or the development of openly accessible channels of public discussion. Ruling elites not only exercised direct control of print through censorship and surveillance but also sought to shape the organization of the book trade and the press to ensure that the dominant interests in publishing were aligned with those of the state. Later, high taxes and other costs imposed on publishers by the state helped to limit the popular press. 3. Ch. 2: The Revolutionary Era, the period extending from the pre-Revolutionary crisis beginning roughly around 1765 through the writing of the Constitution and the Bill of Rights, was as much the foundational period for communications as it was for government in the United States. Not only did the de facto public sphere of the late colonial era gain constitutional affirmation. The developments in this period also set in a motion a political process that in the early republic elaborated and extended the new American pattern and established the design of such important institutions as the Post Office and the common school. The web of communications that Tocqueville observed was not a predictable legacy of European settlement, much less a product of the environment. Contrast between Americans and Canadians stemmed partly from their varying cultural and colonial heritage, but the political transformation of American society in the previous half-century had accentuated those differences. After becoming independent, the Americans had decided not just to allow communications and education to develop, but to promote them in a deliberate effort to create a new society and a more powerful nation. 4. Ch. 3: Here were some of the innovations that made up the first American revolution in information and communications: The United States established free speech as a constitutional principle, and the Constitution itself was written and published so that ordinary citizens could read it. It created a comprehensive postal network and assured postal privacy. It introduced a periodic census, published the aggregate results, and assured individuals anonymity. Primarily through local efforts, it extended primary schooling earlier to more of its population, including women. Protestantism and the market economy, however, cannot explain the United States moved ahead more quickly in communications than did the Protestant, commercial countries of Europe. The transformation of postal service, news, education, and the census followed in the wake of the American Revolution. Some of the key changes, such as the postal system, the census, and public education, critically involved law and policy and doubtless helped to make the United States more powerful. But the federal government promoted communications in part by desisting from the use of power: It conducted no surveillance of mail, refrained from using the census to maintain information about individuals, and helped to finance and stimulate the development of common schools at the local level, but did not control what the schools taught. The government promoted communications by making credible commitments not to control their content. 5. Ch. 10: The different outcomes in European and American radio broadcasting confirmed three earlier patterns. 1) European governments had a long tradition of taxing communications, whereas Americans had consistently rejected any special tax on communications ever since the founding of the republic - indeed, going back to the Stamp Act crisis of 1765. In a sense, the tax on radio receivers in Britain and elsewhere was a twentieth-century reincarnation of the stamp tax on newspapers. To be sure, the motivations of the new tax were different, but the license fee supporting the BBC also had the effect of giving a more elite character to a medium that developed in a more popular direction in the United States. 2) American policies towards communications had characteristically favored a rapid rollout of new technologies: this was the case with AM radio. To the British, American radio was chaotic and vulgar; to its defenders, American broadcasting demonstrated its virtue by its pluralism and sheer scale. As commerce, Hoover had set out to build a flourishing industry, and by that standard his policies had succeeded. 3) The Europeans were more willing to concentrate control of communications media not just in the state, but in a single bureaucracy. After the telegraph and telephone emerged, European governments had typically given responsibility for the new networks to their post offices; now some European governments also gave the same organization authority over broadcasting. America was not exactly devoted to free-market competition in communications; the Post Office, Western Union, and the Bell System were all monopolies or nearly so, and a network of oligopoly came to dominate radio. But "legacy" institutions were not allowed to control new media. In short, the United States had a check-and-balances paradigm for communications just as it did for government itself. But the paradigm would have its limitations in assuring diversity and free expression on the air.

Structural accommodations to professional sovereignty in the 20th century

1. Medical care came to be characterized by a series of internal boundaries demarcating the profession's domain. The vigilantly guarded border between public health and curative medical services was one example. In the hospital there was a split between two lines of authority, one professional, the other administrative. In the drug market there developed a division between ethical and over-the-counter drugs, the former available only by the authorization of a physician. The general absence of integrated organization and higher-level management in the medical system had the function of preserving the sovereign position of the profession. The various attempts to rationalize the organization of hospitals or of medical practice and public health foundered on the resistance of private interests. No program, policy, or plan was acceptable, even worth considering, unless it respected the professional sovereignty of physicians. 2. This pattern of structural accommodation to the interests of the profession was what confounded the early predictions that solo practice would be superseded because it was inefficient. With access to hospitals, physicians acquired the technological resources necessary for the practice of modern medicine without becoming part of an organization. Other institutions, such as health departments, performed diagnostic functions for them. These complementary relations allowed physicians to escape the pressures that might have forced them to accept organizational controls. Private medicine was sustained by the willingness of public institutions to assume part of its cost. This was no devious trick of the profession. It was a political decision made in the hope of preserving the personal relations between doctor and patient. 3. There were structural accommodations made so that doctors could maintain their autonomy. 4. In the case of insurance, doctors adjusted their views. 5. In 1914 and 1915, some leaders of the AMA thought government control of insurance would be good. 6. In this time, the economic position of doctors was changing. 7. Health insurance was seen as a way of making bank. 8. Doctors in Europe thought this way. 9. Doctors' incomes were rising in this due to licensing laws and increased demand for medical services 10. So the attitude towards healthcare shifts towards opposition to government insurance 11. Doctors opposed insurers as a source of potential control 12. Doctors were against insurers employing them, as this was anathema to the profession 13. In the 1930s and 1940s prepaid health plans, the antecedents to HMOs, came about 14. Doctors in the PHP network were blacklisted from the county medical societies. Doctors were able to get hospitals to adopt a rule that doctors couldn't admit patients into the hospital, if they were blacklisted from county medical societies. 15. This is the reason why Kaiser built its own hospitals in the 1940s. ("The Social Transformation of American Medicine" by Paul Starr)

Reward system

1. Scientists are rewarded with fame, not money (Merton)

Institutions as systems of rules and practices

Institutions as systems of rules and practices that regulate social interaction

Transformed conception of property rights

The decline and fall of "absolute dominion" over land and the rise of a prodevelopmental conception of property rights (Morton Horwitz) - water rights in the 19th century, air rights in the 20th 1. In the 18th and 19th Centuries the Industrial Revolution was getting under way. There was a conflict between the traditional conception of law and emerging industrialization. 2. Absolute dominion: a property owner may dig a well or make other excavations within his own bounds and be subject to no claim for damages even though the effect of this well or excavation may be to cut off and divert water which would otherwise find its way to the well or spring of his neighbor 3. Quiet enjoyment: a right to the undisturbed use and enjoyment of real property by a tenant or landowner. This is what the traditional conception of property rights protected. 4. Once industrialization got underway, however, the idea of property rights changed. 5. At the beginning of the 19th Century, courts held that property owners had right to natural uses of their property. The maxim "first in time; first in right" held. This changed over the course of the 19th Century. Agrarian ideas ceded to ideas of efficiency. 6. In the late 1700s, early 1800s someone would build a water mill or dam on a river and that would have downstream and upstream effects. If a farmer downstream sued under the traditional conception of property rights, he would've been able to block the construction of the dam. Nevertheless, courts found a way to limit the burdens on development through mechanisms such as compensation to the farmer. 7. In many countries, property rights inhibited growth. In ancien regime France, says Lamoreaux, complex traditional property rights stood in the way of development. Governments reallocated property rights to deal with this issue. 8. In 1785, the Massachusetts legislature incorporated the Charles River Bridge Company to construct a bridge and collect tolls. In 1828, the legislature established the Warren Bridge Company to build a free bridge nearby. Unsurprisingly, the new bridge deprived the old one of traffic and tolls. The Charles River Bridge Company filed suit, claiming the legislature had defaulted on its initial contract. 9. In a 5-to-2 decision in 1837, the Court held that the state had not entered a contract that prohibited the construction of another bridge on the river at a later date. The Court held that the legislature neither gave exclusive control over the waters of the river nor invaded corporate privilege by interfering with the company's profit-making ability. In balancing the rights of private property against the need for economic development, the Court found that the community interest in creating new channels of travel and trade had priority. Thus the Charles River bridge lost its monopoly and American development diverged from its European counterpart. 10. In 1903 the Wright brothers invented the airplane. At that time, law held that people owned land down to the core of the Earth and up to the universe. Were pilots trespassing when they flew over land not owned by them? Did airlines have to compensate people they flew over? Congress declared the airways to be public. 11. Thomas Lee Causby owned a chicken farm outside of Greensboro, North Carolina. The farm was located near an airport used regularly by the United States military. According to Causby, noise from the airport regularly frightened the animals on his farm, resulting in the deaths of several chickens. The problem became so severe that Causby was forced to abandon his business. Under an ancient doctrine of the common law, land ownership extended to the space above and below the earth. Using this doctrine as a basis, Causby sued the United States, arguing that he owned the airspace above his farm. By flying planes in this airspace, he argued, the government had confiscated his property without compensation, thus violating the Takings Clause of the Fifth Amendment. The United States Court of Claims accepted Causby's argument, and ordered the government to pay compensation. In a 5-2 opinion authored by Justice William O. Douglas, the Court concluded that the ancient common law doctrine "has no place in the modern world." Justice Douglas noted that, were the Court to accept the doctrine as valid, "every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea." However, while the Court rejected the unlimited reach above and below the earth described in the common law doctrine, it also ruled that, "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." Without defining a specific limit, the Court stated that flights over the land could be considered a violation of the Takings Clause if they led to "a direct and immediate interference with the enjoyment and use of the land." Given the damage caused by the particularly low, frequent flights over his farm, the Court determined that the government had violated Causby's rights, and he was entitled to compensation. 12. SCOTUS essentially removed the right to the air above one's head from the bundle of property rights. 13. California also first gave water rights to minings interests 14. Later, water rights were given to agricultural interests: happened amid jockeying of interests 15. Rights reallocation led to large fortunes

Architecture choice as politics by other means

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A bright line between marriage and non-marriage?

1. A coda: "marriage" is just a word, and today the legal significance of the word -- as housing or describing the place of legal sexual expression, shared property, and, most importantly, core obligations for the care of children -- is much reduced from what it once was. In his book Hartog invested in a vision of discontinuity because he believed that the bright line that once existed between marriage and non-marriage had grown fuzzy and indistinct in the late twentieth century. 2. Yet, what gay marriage teaches is the obvious historical lesson about words like "marriage." What matters is what matters. And marriage is a word that today, as in the past, matters politically, legally, culturally, and for individuals as they construct meaning in their lives. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Epistemic communities; the legal profession as an example

1. A network of professionals with recognized expertise and authoritative claims to policy-relevant knowledge in a particular issue area. Such professionals may have different backgrounds and may be located in different countries, but they share a set of norms that motivate their common action, a set of beliefs about central problems in their area of expertise, shared criteria for evaluating knowledge, and a common policy enterprise 2. Epistemic communities take on integrative tasks that political parties are losing 3. Lawyers and judges part of the same epistemic community 4. Law is a community not only in its shared body of knowledge and expertise and its particular mode of thinking perceived by its members as unique and superior: also an economic community in which the material self-interest of every member is dependent upon the functioning of at least many others. Beyond that, social community whose prestige depends on behavior of others. 5. Thus legal community defends SCOTUS 6. Courts provide work for lawyers and lawyers work for judges 7. If we choose constitutional courts, we choose not only the government of judges but also the government of lawyers. And lawyers will defend and praise this government (Shapiro)

How to Manage the Philanthropic Foundation

1. After all, everyone dies 2. Trustees manage the organization and select successors 3. The trustees supervise policy and hire professional staff to manage the funds 4. They establish a program to give grants

The generalization of rights

1. A right to health care versus rights in health care 2. The civil rights' struggle lost its momentum as a protest movement in the seventies, but it set the example for dozens of other movements of similar purpose. Instead of marching through the streets, they marched mainly through the courts. And instead of a single movement centered on blacks, the new movements advocated the rights of women, children, prisoners, students, tenants, gays, Chicanos, native Americans, and welfare clients. The catalogue of rights and of groups entitled to them was immensely expanded in both variety and detail. Medical care figured prominently in this generalization of rights, particularly as a concern of the women's movement and in the new movements specifically for patients' rights and for the rights of the handicapped, the mentally ill, the retarded, and the subjects of medical research. 3. Health care as a matter of right, not privilege: No other single idea so captures the spirit of the time. The law did not, in fact, recognize any general right to health care, and philosophers and lawyers questioned what a right to health care or to health itself might require. But despite such objections, the claim was for a time so widely acknowledged as almost to be uncontroversial. The entitlement programs had created a specific set of rights to medical care, but only for those who could establish eligibility. Some hospitals, having accepted federal funds under the Hill-Burton program, had obligated themselves to provide charity care—an obligation that attorneys for the poor sought to enforce in the courts in the early 1970s. Other legal claims were raised on behalf of patients committed to mental institutions 4. The new health rights movements were also concerned with rights in health care, such as the right to informed consent, the right to refuse treatment, the right to see one's own medical records, the right to participate in therapeutic decisions, and the right to due process in any proceeding for involuntary commitment to a mental institution. Claims of a right to health care demand equality between rich and poor, whereas rights in health care demand greater equality between professional and client. For every right, there are always correlative obligations. Recognition of a right to health care would obligate the state to guarantee provision of services. Recognized rights in health care, such as informed consent, obligate doctors and hospitals to share more information and authority with their patients. Thus the new health rights movement went beyond traditional demands for more medical care and challenged the distribution of power and expertise. These efforts, like the attempts to enlarge entitlements to services, met some success in the courts. Indeed, few other developments so well illustrate the decline of professional sovereignty in the 1970s as the increased tendency of the courts to view the doctor-patient relationship as a partnership in decision making rather than a doctors' monopoly ("The Social Transformation of American Medicine" by Paul Starr)

Education Reform and Megafoundations

1. Charter schools engage in high-stakes testing 2. Charter schools are promoted by many foundations like Gates, Bloomberg, Walton 3. US Department of Education has adopted the policies favored by these foundations 4. In addition, higher ed policy is being set by philanthropic foundations 5. We don't want to set policy this way

The knowledge-power dilemma

1. Closed societies, authoritarian modernization, and control of media 2. Logic of centralization; top-down media—the case of the loudspeaker 3. The antagonistic expansion of print 4. De facto freedom vs. institutionalized limits on state power

"The Logic of Discipline: Global Capitalism and the Architecture of Government" by Alasdair Roberts

1. Ch. 1: A) The logic of discipline is a way of thinking about the organization of government functions that has been applied in many different areas over the last three decades. Briefly, the logic has two main components. The first component makes the case for reform. The argument usually begins with an expression of deep skepticism about the merits of conventional methods of democratic governance, which are thought to produce policies that are shortsighted, unstable, or designed to support the selfish concerns of powerful voting blocs, well-organized special interests, and the bureaucracy itself. This arguments ends with a call for reforms that will are farsighted, consistent over time, and crafted to serve the public interest. Allied to this argument about the need for reform is a second argument, one concerned with tactics- that is, the best way of changing governmental processes to promote the virtues of farsightedness, consistency, and public-spiritedness. The tactical argument says that it is important to impose constraints on elected officials and voters so they cannot make ill-advised decisions. Broadly, the task is sometimes called "depoliticization," because it involves removing certain subjects from the realm of everyday politics. Depoliticization is accomplished through legal instruments - laws, treaties, and contracts - that purport to transfer authority to technocrat-guardians or proscribe certain choices entirely. B) Roberts lays out the flaws in the ideology that has dominated policymaking for the past 30 years and more. That ideology has been that most problems-social, political, economic-can be solved by permitting the discipline of The Market to guide administrators to decide on the most just, presciently efficient, and generous allocation of resources and rewards. By "The Logic of Discipline" Roberts says he means: (a) repression of conventional methods of democratic governance; (b) removing certain subjects from everyday politics to debate; and (c) "depoliticizing" decisions made by mostly autonomous administrative and regulatory agencies. In a nutshell, the failure of the Logic of Discipline, says Roberts, can be attributed to "naïve institutionalism," a belief that the "the behavior of political systems is driven largely by their formal-legal arrangements." 2. Ch. 2: The argument for central bank independence mutated substantially over thirty year. It began as a simple application of the logic of discipline: legal reforms were necessary to establish the independence of central banks so that they could make difficult decisions about monetary policy. Formal-legal reforms empowered a new guardian class of central bankers and scholarly economists. Over time, the argument was refined to include the claim that de jure independence would be an means of reassuring foreign investors about the commitment to price stability. By 2009, this now-conventional argument for central bank independence had been discredited in several ways. The most obvious difficulty was the failure of leading central bankers to anticipate and avoid the crisis of 2007-2009. The regime institutionalized a vulnerability, a blindness to the risks engendered by careless liberalization and a long period of growth and price stability. The newly powered class of technocrat-guardians had proved unable to manage those risks properly. The naive-institutionalist notion that de jure independence alone had an impact on policy outcomes could be discounted. The anti-inflation regime that was constructed in advanced economies over three decades was robust, because it was reinforced by important shifts in political conditions, internal structure, and relationships between central banks, scholarly economists, and financial markets. There was more at work than a simple change in formal-legal arrangements. Advocates of central bank independence liked the universality of their prescription: there was little room for debate about when it should be applied. However, it turned out to be a prescription that made certain unstated assumptions about the state of the world, principally that the risks of systemic instability were not substantial. When this assumption collapsed in 2007, elite opinion about appropriate behavior shifted rapidly.

"Diminished Democracy: From Membership to Management in American Civic Life" by Theda Skocpol

1. Ch. 1: American civic voluntarism was never predominantly local and never flourished apart form national government and politics. Large-scale translocal memberships took shape from early in the history of the U.S. Republic and then spread into every part of the country and every sector of the population between the 1820s and 1960s. Americans joined and led voluntary associations not only to interact with friends and neighbors but also so as to reach out to fellow citizens of a vast republic and build the organizational capacity to shape national culture and politics. Through times of war and peace, U.S. representative institutions and public policies encouraged the growth of voluntary federations, which, in turn, often got invovled in politics to influence the course of public policy. In the United States, democratic governance and civic voluntarism developed together. The social movements of the 1960s and 1970s inadvertently helped to trigger a reorganization of national civic life, in which professionally managed associations and institutions proliferated while cross-class membership associations lost ground. In our time, civicly engaged Americans are organizing more but joining less. Solidarity across class lines has dwindled, even as racial and gender integration has increased. The professionally managed organizations that dominate American civic life today are, in important respects, less democratic and participatory than the pre-1960s membership federations they displaced. 2. Ch. 2: Introduction: Classic American civic associations were large and translocal networks, not self-enclosed bodies restricted to particular places. Many ways in which civic voluntarism was thoroughly entwined with government activities and popular politics. Mass-mobilizing U.S. wars and inclusive public social programs have involved and fostered civic voluntarism on a national as local scale. For most of our nation's history, civic voluntarism and bold public undertakings went hand in hand. Classic voluntary associations [popularly rooted membership groups that flourished from the mid-nineteenth through the mid-twentieth century] were usually federations that brought citizens together across class lines while linking thousands of local groups to one another and to representatively governed centers of state and national activity. Conclusion: Most voluntary groups active in American communities from the mid-nineteenth century through the mid-twentieth century were more than strictly local entities. Membership associations usually enjoyed a strong local presence, yet most emerged and flourished as parts of regional and national federations. Deliberately built by civicly ambitious men and women with national vision and power aspirations, membership federations grew with unusual vigor in the wake of the nation's biggest wars, and many of them supported and drew legitimation from their support of expensive and expansive public social programs. 3. Ch. 4: From the 1800s through the 1950s and 1960s, U.S. civic life was dominated by a mixture of business associations plus many kinds of representatively governed membership associations. Since the 1960s, however, the ranks of professionally run groups have swelled, especially groups other than business associations. Groups dispersing contributions from the wealthy; professionally run citizens' associations; and professionally managed advocacy groups for the poor and vulnerable: all of these types of groups have expanded their presence on the U.S. civic scene. At the same time, representatively governed voluntary federations have ceased to proliferate, and their dues-paying memberships have contracted.

Some central problems of democratic institutional design

1. Democratic overload (too many unintelligible referenda in California) vs. democratic deficits (experts decide everything) 2. incumbent protection "prejudice against discrete and insular minorities" (U.S. v. Carolene Products, 1939) 3. oligarchy (power of concentrated wealth)

"Code, Version 2.0" by Lawrence Lessig

1. Ch. 1: This book is about the change from a cyberspace of anarchy to a cyberspace of control. When we see the path that cyberspace is on now, we see that much of the "liberty" present at cyberspace's founding will be removed in its future. Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer's scope—beyond laws, or even norms. It requires a broader account of "regulation," and most importantly, the recognition of a newly salient regulator. Then considers three areas of controversy—intellectual property, privacy, and free speech—and identify the values within each that cyberspace will change. These values are the product of the interaction between law and technology. How that interaction plays out is often counter-intuitive. The central lesson of this book is that cyberspace requires choices: choices neither courts nor Congress able to or should make. 2. Ch. 3: Whether cyberspace can be regulated depends upon its architecture. The original architecture of the Internet made regulation extremely difficult. But that original architecture can change. And there is all the evidence in the world that it is changing. Indeed, under the architecture that I believe will emerge, cyberspace will be the most regulable space humans have ever known. The "nature" of the Net might once have been its unregulability; that "nature" is about to flip. 3. Ch. 4: Lessig describes the changes that could—and are—pushing the Net from the unregulable space it was, to the perfectly regulable space it could be. These changes are not being architected by government. They are instead being demanded by users and deployed by commerce. They are not the product of some 1984-inspired conspiracy; they are the consequence of changes made for purely pragmatic, commercial ends. 4. Ch. 7: That regulator could be a significant threat to a wide range of liberties, and we don't yet understand how best to control it. This regulator is what I call "code"—the instructions embedded in the software or hardware that makes cyberspace what it is. This code is the "built environment" of social life in cyberspace. It is its "architecture." And to see this new, salient threat, I believe we need a more general understanding of how regulation works—one that focuses on more than the single influence of any one force such as government, norms, or the market, and instead integrates these factors into a single account. 5. Ch. 9: Translation of law across time is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But Is the past enough? Are there choices the framers did not address? Are they choices that we must make? 6. Ch. 12: What Lessig described at the start of the book as modalities of constraint Lessig redescribsd in this chapter as modalities of protection.While modalities of constraint can be used as swords against the individual (powers), modalities of protection can be used as shields (rights). In principle we might think about how the four modalities protect speech, but I have focused here on architectures. Which architectures protect what speech? How does changing an architecture change the kind of speech being protected? Lessig has not tried to be comprehensive. But Lessig has pushed for a view that addresses the relationship between architectures and speech globally and uses constitutional values to think not just about what is permitted given a particular architecture, but also about which architectures are permitted.Our realspace constitution should inform the values of our cyberspace constitution.At the least, it should constrain the state in its efforts to architect cyberspace in ways that are inconsistent with those values.

"Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr

1. Ch. 6: The Rise of a Reform Consensus. By late 2006, economic and political developments put comprehensive health-care reform back in play again. During the previous six years, just as in the period before Clinton's election, health-care costs and insurance premiums had risen far more rapidly than incomes, renewing the sense of urgency about reforms that would deal with both costs and coverage. The 2006 election then renewed the sense of political possibility by returning both the House and Senate to the Democrats. Yet nothing guaranteed that if the Democrats won the White House and increased their control of Congress in 2000, they would be able to pass substantial health-care legislation. Anticipating difficulties [e.g. interest group disagreement, loss of public support], a variety of groups began to prepare for the chance that the 2008 election might open another window for reform. Even though the two major parties disagreed fundamentally about government's role in health care, the conventional wisdom was that health-care reform would have to be bipartisan. The model [for health care reform] originated in a bipartisan reform that emerged from one of the states, and it was a Republican governor, Mitt Romney of Massachusetts, whose leadership made it possible. 2. Ch. 8: The Affordable Care Act as Public Philosophy. It [the ACA] was big, the most ambitious reform effort in recent decades to reorganize a major institution on a basis that agrees more closely with the principles of justice and efficiency. Yet it was also comparatively limited, compared, that is, with the health-care systems of other democracies or with the ideal remedies that many reluctant supporters of the legislation would have preferred. The combined move toward both the conservative position on patient cost-sharing and the liberal position on preventive care illustrates the absence of any single theory of cost containment in the Affordable Care Act, unless it's an open-ended empiricism and political pragmatism - proceeding on the available data, testing out alternatives, developing better information, and trying to make more intelligent policy as far as political constraints allow. 3. Ch. 9: Reform's Uncertain Fate. Thanks to the increased polarization between America's two major parties, swings in power may now results in greater swings in policy. Through most of the twentieth century, the political system's strong gravitational forces kept national policy from lurching first one way and then the other. Both of the parties were ideologically mixed coalitions tethered to the center; shifts in control of Congress or the White House, or both, did not usually amount to a wholesale reversal in the direction of government. The overwhelming pattern from 1993 to the 1970s was continuity, tilting in a liberal direction. Since then American politics has been a tug-of-war. Neither party could escape from the policy trap the nation had created for itself - an increasingly expensive and complicated health-care system that nonetheless satisfied enough people to make it deeply resistant to change.

Congressional delegation

1. Congress delegates power to agencies to iron out details of law 2. Sunstein argues that because Chevron applies only in cases of congressional delegation of law-making authority, agency interpretations in a number of contexts are not entitled to deference at all (Sunstein)

Pluralism

1. Groups of individuals try to maximize their interests. Lines of conflict are multiple and shifting as power is a continuous bargaining process between competing groups. 2. This is the case in the US, where groups are more distant from the government and do not perform services for the government

Weimar Constitution

1. Having legally formed a government at the invitation of President Hindenburg after the inconclusive elections of 1932, Chancellor Adolf Hitler persuaded Hindenburg to declare a state of emergency following the Reichstag fire. 2. According to the Weimar Constitution, the emergency allowed the suspension of many crucial rights, which were never restored (Scheppele)

Immigration and naturalization laws

1. Nations vary with respect to citizenship 2. First US immigration law (1790s) limited immigration to Caucasians

The Current Organizational Environment

1. New organizations are more partisan than their 1970s counterparts. 2. Some of these changes reflect changes in society 3. Organizations don't come out of nowhere

A whirlwind history of institutional analysis

1. Political science: first old institutionalism, then behavioralism, now new institutionalisms 2. Economics: first old institutionalism, then neoclassical economics, now new institutional economics 3. Sociology: historical continuities, increasing focus on cognitive dimension 4. Institutions and organizations: two different views (D. North/sociology)

"Why Nations Fail: the Origins of Power, Prosperity and Poverty" by Daron Acemoglu and James A. Robinson

1. Poor countries are poor not because of their geographies or cultures or because their leaders do not know which policies will enrich their citizens. 2. Once a critical juncture happens, the small differences that matter are the initial institutional differences that put in motion very different responses. This is the reason why the relatively small institutional differences in England, France, and Spain led to fundamentally different development paths. The paths resulted from the critical juncture created by the economic opportunities presented to Europeans by Atlantic trade. The outcome of the events during critical junctures are shaped by the weight of history, as existing economic and political institutions shape the balance of power and delineate what is politically feasible. The outcome, however, is not historically predetermined but contingent. The exact path of institutional development during these periods depends on which one of the opposing forces will succeed, which groups will be able to form effective coalitions, and which leaders will be able to structure events to their advantage. 3. The Industrial Revolution started and made its biggest strides in England because of her uniquely inclusive economic institutions. These in turn were built on the foundations laid by the inclusive political institutions brought about by the Glorious Revolution. It was the Glorious Revolution that strengthened and rationalized property rights, improved financial markets, undermined state-sanctioned monopolies in foreign trade, and removed the barriers to the expansion of industry. This unique process started in England, because the Glorious Revolution involved the emergence of a new regime based on constitutional rule and pluralism, a consequence of the drift in English institutions and the way they interacted with critical junctures. 4. The Industrial Revolution created a transformative critical juncture for the whole world during the nineteenth century and beyond: those societies that allowed and incentivized their citizens to invest in new technologies could grow rapidly. But many nations around the world failed to do so-or explicitly chose not to do so. Nations under the grip of extractive political and economic institutions did not generate such incentives. Spain and Ethiopia provide examples where the absolutist control of political institutions and the implied extractive economic institutions choked economic incentives long before the dawn of the nineteenth century. The outcome was similar in other absolutist regimes-for example in Austria-Hungary, Russia, the Ottoman Empire, and China, though in these cases the rulers,because of fear of creative destruction, not only neglected to encourage economic development but also took explicit steps to block the spread of industry and the introduction of new technologies that would bring industrialization. 9. World inequality today exists because during the nineteenth and twentieth centuries some nations were able to take advantage of the Industrial Revolution and the technologies and methods of organization that it brought while others were unable to do so. Technological change is only one of the engines of prosperity, but it is perhaps the most critical one. The countries that did not take advantage of new technologies did not benefit from the other engines of prosperity, either. This failure was due to their extractive institutions, either a consequence of the persistence of their absolutist regimes or because they lacked centralized states. In several instances, the extractive institutions that underpinned the poverty of these nations were imposed, or at the very least strengthened, by very same process fueled European growth: European commercial and colonial expansion. 10. Whether a country did embark on industrialization was largely a function of its institutions. The United States, which underwent a transformation similar to the English Glorious Revolution, had already developed its own brand of inclusive political and economic institutions by the end of the eighteenth century. It would thus become the first nation to exploit the new technologies coming from the British Isles, and would soon surpass Britain and become the forerunner of industrialization and technological change. 12. Botswana, China, and the U.S. South, just like the Glorious Revolution in England, the French Revolution, and the Meiji Restoration in Japan, are vivid illustrations that history is not destiny. Despite the vicious circle, extractive institutions can be replaced by inclusive ones. But it is necessary automatic nor easy. A confluence of factors, in particular, a critical juncture coupled with a broad coalition of those pushing for reform or other propitious existing institutions, is often necessary for a nation to make strides toward more inclusive institutions. In addition, some luck is key, because history always unfolds in a contingent way. 13. Whether reform will get under way and open the door to further empowerment, and ultimately to durable political reform, will depend on the history of economic and political institutions, on many small differences that matter and on the very contingent path of history.

Civic Engagement

1. Starr defines as participation or involvement in civic life. 2. It is essentially the extent to which individuals and/or groups are engaged in public life e.g. voting, reading the news.

"The Social Transformation of American Medicine" by Paul Starr

1. Starr argues that physicians in the United States exercise authority over patients, fellow workers in health care, and even the public at large. 2. This authority spills over its clinical boundaries into arenas of political action for which medical knowledge is only partly relevant. 3. According to Starr, the medical profession has been able to turn its authority into social privilege, economic power, and political influence. 4. Hardly anywhere have doctors been as successful as American physicians in resisting national insurance and maintaining a predominantly private and voluntary financing system. 5. Physicians in the United States have not only escaped from corporate and bureaucratic control in their practices, they also have been able to channel the development of hospitals, health insurance, and other medical institutions into forms that did not intrude upon their autonomy 6. The enactment of compulsory social health insurance legislation in other Western capitalist countries suggests there was no fundamental reason that the United States could not also have adopted social health insurance. 7. However, Starr argues, the medical profession was one of the main opponents of compulsory social health insurance. 8. No powerful coordinating authority was permitted to emerge, because it would have threatened professional autonomy and physician control of the market. 9. Even though universal health insurance would have boosted the income of many physicians, private doctors resisted the idea for fear of compromising their independence 10. As a consequence, U.S. government took no action to subsidize voluntary health insurance funds or to make sickness insurance compulsory. 11. This was the case even though the three main opponents (the medical profession, labor, and business) had conflicting and ambiguous interests and despite the fact that interest groups in Europe had been shown to often benefit from governmental health insurance programs. 12. Ideology, historical experience, and the overall political context played a key role in shaping how groups in the United States identified and expressed their interests differently from corresponding groups in Europe 13. The defeat of consecutive attempts to bring about national health insurance meant that health insurance in the United States would be predominantly private and thereby available to select population groups. 14. Starr writes about how the insurance system developed under the control of hospitals and doctors, how the medical profession was able to turn third-party insurers from a potential threat into a source of greatly increased income, and how the insurance system accommodated the profession's interests and on those terms the profession accommodated health insurance. 15. Even in setting up Medicare, Congress and the administration of President Lyndon B. Johnson were acutely concerned with gaining the cooperation of doctors and hospitals. Only rising concerns of government, private insurers, and employers about increasing health care costs and the pressures of the managed care revolution compromised the profession's ability to turn authority into social privilege, economic power, and political influence 16. Although Starr refers to the European experience with the introduction of social health insurance in order to explain why "America lagged," The Social Transformation of American Medicine does not take up a comprehensive comparative perspective

"Laboratories of democracy"

1. State can experiment policy wise

When Reallocation of Property Rights Troublesome

1. The Cherokees were robbed of their land 2. In 1852 California passed a law allowing prospectors to invade farmers' land and not compensate them

The Civil Sphere versus the Civic Arena

1. The Civil Sphere: Civil society and social capital (social connections, relations of trust, reciprocity) 2. The Civic Arena; Civic engagement (participation or involvement in civic life)

Marriage and Federalism

1. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States. 2. At all times over the past two centuries struggles over marriage have occurred on the terrain of American federalism. In the 1940s the United States Supreme Court fully applied the Federal Constitution's Full Faith and Credit clause to divorces and remarriages carried out under one state's laws that violated the terms of another state's laws. 2. Until then it was possible to be legally divorced and remarried in one state, and a criminal bigamist in another. Thereafter, conservative divorce regimes could no longer sustain their control over any of their citizens who had the wherewithal to travel to a more liberal jurisdiction -- like a Nevada or a Virgin Islands. 3. And then in the 1960s and 1970s, the Court applied the equal protection clause of the Fourteenth Amendment and an emerging conception of the right to privacy to numbers of state rules that shaped or impinged on marriage: in the Loving decision on miscegenation law, later in decisions on child support, on unmarried paternal rights, on child custody, and on the right to marry. 4. And even with regard to subjects on which the Supreme Court did not rule, both state courts and state legislatures began to act as if the Federal equality and privacy provisions -- or their state constitutional equivalents -- applied. 4. Nearly every state enacted no-fault divorce laws (or their equivalents) over the 1970s and 1980s and, with greater variations, some form of marital property reform. By the early 1990s it looked as if the terrain of American marriage had become largely uniform. It no longer mattered where you lived. Marriages anywhere were about the same as marriages everywhere in the United States. 5. San Francisco Mayor Newsom's assertion of his authority to declare the constitutionality of same sex marriage finds any number of earlier analogues. Marriage has always been an institution about which local and state officials felt authorized to make constitutional claims about. The apparent force of the Full Faith and Credit clause that appeared to require conservative state officials to recognize divorces and remarriages made in more liberal jurisdictions was always qualified by a public policy limitation. That "limitation" held that where the public official determined that a strong public policy of the state was implicated (say, for example, a state's strong public policy against marital freedom) it was constitutionally permissible for the official to deny full faith and credit to the offending law or practice of the "bad" state. As a side note, and as a measure of the continuities that I have been exploring, it is worth mentioning that the Defense of Marriage Act is in its fundamentals a restatement of this very old public policy limitation. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Transformed conception of the corporation

1. The early public-service model of the corporation 2. General incorporation laws; the rise of an economy populated by corporations; the one-vote-per-share rule; exploitation of the corporate form by majority shareholders; Credit Mobilier scandal (Lamoreaux) 3. Law, policy, and the creation of a national market 4. Separation of ownership and management; the corporation as a bureaucracy

State positivism

1. The thesis that the existence and content of law depends on social facts and not on its merits (Merryman and Pérez-Perdomo)

Chevron "as a kind of Marbury, or counter-Marbury"

1. This principle is quite jarring to those who recall the suggestion, found in Marbury v. Madison and repeated time and again in American public law, that it is for judges, and no one else, to "say what the law is." 2. But it is also strikingly reminiscent of the New Deal enthusiasm for agency autonomy and the New Deal belief in a sharp disjunction between the realm of law and the realm of administration. (Sunstein)

Economic growth and institutional change in 19th and early 20th century America

1. Transformed conception of property rights 2. Transformed conception of the corporation 3. Transformed state policies and economic growth

Choice architecture

1. choices about choices 2. "the politics of structural choice"

Constitutional judicial review

A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles (Shapiro)

Courts as institutions

Courts act as referees in division of power disputes (Shapiro)

Asymmetrical federalism

Federal government systems in which the division of powers are not the same from province to province or state to state e.g. Canada with Quebec, US with Native Americans

Judicial review

Do acts of legislature and executive orders pass Constitutional muster?

Coverture

FROM ARTICLE 1. Much of this story is contained within a history of coverture, a history of the notion that in marriage a wife's legal identity was covered over by her husband's. In his book Hartog argued that it is a mistake to see coverture as the legal marching orders of patriarchy. Hartog thought coverture was better understood as a set of legal regulations -- limitations and controls -- on male power within marriage. But all that said (and fine historians disagree with my interpretation of coverture): the inequality that was marriage was fundamental, whether or not coverture was the creator of that inequality or the law's way of moderating the effects of inequality. And everyone knew, in 1820 in 1880 and still in 1950, that husband and wife meant a dyadic relationship between two unequally situated individuals. 2. The "before" that stands prior to this two century stream of struggle to undo hierarchy is much the same as the one that bounded the first stream, identified with an older world in which it was uncontroversially the case that women were a resource for reproduction and a labor resource for a household headed by a man. 3. From the mid nineteenth century on, legislators passed a variety of rules that formally moderated the inequalities of marriage -- particularly marital property reforms, earnings acts, and child custody reforms. 4. Real change in the law only came in the post World War II world, and in particular, in the 1970s and 1980s. The reasons for and the markers of that change are the conventional markers of late twentieth century history: women entering the paid labor market in much larger numbers, easily available contraception and the separation of sexuality from marriage, the power of an analogy drawn between the harms of racial subordination and those that came to be identified with sex discrimination, a woman's liberation movement successful at identifying marriage with oppression, an increasingly hegemonic legislative culture of equality and equalization that assumed it was "wrong" to give preferences to mothers in child custody law or to assume that husbands earned more than wives. With some small exceptions, marriage has been reordered as something like a partnership between imagined contractual equals. Today the default rules of marriage may produce more egalitarian effects than would a pure and free regime of contract. There are continuing substantive inequalities that lie behind the fantasy of formal equality. Real lives may or may not have changed in consequence. But marriage as an institution no longer publicly defines a relationship founded on sexual inequality. FROM LECTURE 1. By marriage, a wife's identity is covered by her husband's identity. Feminists said woman is like a slave. Though false, this analogy was politically powerful. A husband had rights over his wife. These rights are listed below. 2. Husband had exclusive sexual access to his wife. 3. If wife slept with another man, seducer was liable and could be sued in strict liability. 4. Marital rape. As late as the 1970s, rape was defined as "forcible sexual contact with a woman who's not your wife." 5. Husband had governance rights over his wife. This meant he could beat his wife, but he had to be a good governor. 6. Foreign policy also attached to coverture. Husband representd the political entity that is the household to the world. The husband stood in for family to creditors etc. 7. These understandings of marriage became constitutive of both male and female identity. 2. Textbook definition: Anglo-American common-law concept, derived from feudal Norman custom, that dictated a woman's subordinate legal status during marriage. Prior to marriage a woman could freely execute a will, enter into contracts, sue or be sued in her own name, and sell or give away her real estate or personal property as she wished. Once she married, however, her legal existence as an individual was suspended under "marital unity," a legal fiction in which the husband and wife were considered a single entity: the husband. The husband exercised almost exclusive power and responsibility and rarely had to consult his wife to make decisions about property matters. Coverture rendered a woman unable to sue or be sued on her own behalf or to execute a will without her husband's consent and, unless some prior specific provision separating a woman's property from her husband's had been made, stripped a woman of control over real and personal property. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Constitutional rigidity

How hard is the Constitution to amend

"Rational capital accounting"

Most general presupposition for the existence of this present day capitalism is that of rational capital accounting as the norm for all large industrial undertakings, which are concerned with the provision of everyday wants. Such accounting involves, again, first, the appropriation of all physical means of production- land, apparatus, machinery, tools etc. as disposable property of autonomous private industrial enterprises. (Weber)

Constitutional limitation as a source of power

Paradox: limited power more powerful than unlimited power

Constitutionalism

Paradox: limited power more powerful than unlimited power

Polyamory (polyfidelity)

Polyamory or polyfidelity are the labels given to a "post-modern form of multi-partner relationships unburdened by patriarchal gender roles, heterosexual constraints, or monogamous exclusivity." Polyamory is not associated with any particular religious tradition. It may take the form of "idiosyncratic group marriages" or some non-standard form of family life determined by particular individuals. ("The Future of Marriage" by Stephen Macedo)

Chevron principle (principle of deference)

The Chevron principle means that in the face of ambiguity, agency interpretations will prevail so long as they are "reasonable" (Sunstein)

European Commission for Democracy through Law (Venice Commission)

The Commission for Democracy through Law (the Venice Commission) has been extremely active in the Hungarian case, in part because it typically gets engaged in evaluating what a country is doing when constitutions and laws are being drafted, not (as with the ECtHR) after a long process that follows the occurrence of a concrete injury (Scheppele)

legislative bicameralism

Two houses in the legislature

Post Office in the Antebellum South

Used for censorship

Markets versus hierarchies; institutions as governance structures

The choice, Williamson (a rational-choice institutionalist) argued, depends on 2 variables: 1. The greater the complexity and uncertainty, the more likely one is to choose a market as the institution to resolve dilemmas 2. The greater the opportunity for opportunism (someone taking your ideas/money), the more likely one is to choose a firm or some other hierarchical structure, as there are high transaction costs, many opportunities for opportunism and high monitoring/enforcement costs

Rules of information disclosure: privacy and secrecy (post office, census)

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The American Revolution as a social revolution

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The civil law versus the common law tradition

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The democratization of competence: education, "useful" knowledge

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The political basis of free speech in the early republic

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Class action

1. "Anybody" - even "almost anybody" - can be a lot of people, particularly where the matters in issue are not relatively individualized private transactions or encounters 2. Thus, the stage is set for the class action 3. A class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class". Put simply, the device allows courts to manage lawsuits that would otherwise be unmanageable if each class member (individuals who have suffered the same wrong at the hands of the defendant) were required to be joined in the lawsuit as a named plaintiff 4. Unlikely that the class action will ever be taught to behave in accordance with the precepts of the traditional model of adjudication (Chayes)

Thinking institutionally about the economy

1.Property as a bundle of rights 2. Labor markets as institutions 3. Liability and the limited-liability corporation 4. Debt as an institution

"Local knowledge" model of the jury versus the "impartial juror" ideal

1. "Local knowledge" model: juror close to and knowledgeable about case under consideration 2. "Impartial juror" ideal: juror completely unbiased and has no connection at all to the case (Abramson)

Types of institutional isomorphism and their sources

1. Coercive: stems from political influence and the problem of legitimacy 2. Mimetic: results from standard responses to uncertainty 3. Normative: results from professionalization (DiMaggio and Powell)

Legalization and delegalization (privatization) of disputes

1. Delegalization: a movement away from the official system to a private system of dispute-settlement 2. Legalization: more intense use of the official system. (Galanter)

More democracy? deeper democracy?

1. Deliberation: democracy airing and voicing of different viewpoints 2. Participation: people ought to be able to participate 3. Active citizenship

Pattern of American Innovation

1. Great deal of innovation at lower end of market. 2. There was disruptive innovation at the low end.

Bank of England

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Cheap print and the reading revolution

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Constitutions, codes, and the nation-state

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Evading censorship in France: extraterritorial printing, functional ambiguity

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Fiscal capacity and British power

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General considerations about American Media

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Historical legacies

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Institutions as a source of competitive advantage

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Judicial independence

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Mechanisms of entrenchment

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Paths of institutional development

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Property rights as a precondition or endogenous result of economic development? (Lamoreaux)

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Revolution of 1688 ("Glorious" Revolution)

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Regulability

1. "Regulability" is the capacity of a government to regulate behavior within its proper reach 2. To regulate well, you need to know (1) who someone is, (2) where they are, and (3) what they're doing. 3. But because of the way the Internet was originally designed, there was no simple way to know (1) who someone is, (2) where they are, and (3) what they're doing. 4. Thus, as life moved onto (this version of) the Internet, the regulability of that life decreased. The architecture of the space—at least as it was—rendered life in this space less regulable 5. The regulability depends on the code. 6. Some architectures of cyberspace are more regulable than others; some architectures enable better control than others. 7. Therefore, whether a part of cyberspace—or the Internet generally—can be regulated turns on the nature of its code. 8. Its architecture will affect whether behavior can be controlled. To follow Mitch Kapor, its architecture is its politics 9. This fact about regulability is a threat to those who worry about governmental power; it is a reality for those who depend upon governmental power. Some designs enable government more than others; some designs enable government differently; some designs should be chosen over others, depending upon the values at stake ("Code, Version 2.0" by Lawrence Lessig)

From perpetual to limited-term copyright: A) Statute of Anne (1710), B) the end of perpetual copyright (1774)

1. "Why Nations Fail" gives sense of the extent of monopolies in England. 2. The Stationers' Guild had a monopoly over publishing. 3. In 1695 prior restraint and copyright in the Stationers' Guild was ended. It used to be that copy was registered in the Stationers' Guild. The whole system of copyright ended in 1695. The debate over ownership of intellectual property came to an end in 1710 with the Statute of Anne. 4. The Statute of Anne was the first modern copyright law: authors could obtain copyright for 14 years and renew for another 14. Locke encouraged this as a way to increase the accessibility of learning materials. 5. Perpetual copyright ended in 1774 with Donaldson v. Beckett in House of Lords, which was British version of SCOTUS. House of Lords decided that copyright was the deliberate creation of the Statute of Anne and thereafter treated as statutory property. Thus, the effect of the Statute of Anne was to extinguish the common law copyright in published works, while leaving the common law copyright in unpublished works unaffected.

"The Law of Democracy: Legal Structure of the Political Process" by Samuel Issacharoff, Pamela Karlan, and Richard Pildes

1. (Ch. 1) Troubling questions about the role of courts in setting the ground rules for democracy. 2. (Ch. 1) Raises doubts about the institutional competence of courts 3. Argue that democratic politics not autonomous from existing state institutions 2. Because democratic politics not autonomous from existing state institutions, those who control existing arrangements have the capacity to shape, manipulate and distort democratic processes

What Motivates Interest in Civil Society?

1. 2 debates motivate concern with civil society 2. In US, there is great disagreement about the role of government e.g. expansion of welfare state 3. At 1988 RNC Convention President George H.W. Bush, for instance, said, "We need 1000 points of light." His point was that we need independent charitable activities instead of taxes. 4. Liberals said we like the 1000 points of light, but they depend on and are helped by the public sector 5. In short, lots of people would not be well-served without the public sector 6. Liberals see organizations as way of drawing people into the public sphere. 7. In the 1980s and 1990s in Europe, there was talk of the rediscovery of civil society. After the collapse of the USSR, there was discussion about the importance of civil society as the foundation of democracy. Under Soviet regimes, civil society had been repressed. The idea of rebuilding civil society became important in the 1990s. The financier George Soros tried to foster the development of civil society in Eastern Europe at this time. 10. Some people, most notably Sheri Berman, said the vibrant civil society of Germany in the 1920s didn't stop the rise of Hitler. 11. In Hungary, civil society, even when well developed, was not sufficient condition for democracy.

Arbitration clauses

1. A clause inserted in a contract providing for compulsory arbitration in case of dispute as to rights or liabilities under it; ineffectual if it purports to oust the courts of jurisdiction entirely 2. Another variety of contract found in World B 3. Takes away clients' right to bring a class action law suit (Radin)

Common law marriage

1. A common-law marriage has three basic features: a present agreement to be married, cohabitation, public representations of marriage. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Constitutional coups

1. A constitutional coup is constitutional because there is no break in legality, never a moment when a government does something formally illegal to attain its desired goals 2. But it is nonetheless a coup because the end result turns the prior constitutional order on its head without a legitimating process to confirm the changes 3. Through a series of perfectly legal moves, then, the constitutionally devious leaders of a state can achieve a substantively anticonstitutional result, including, in the extreme case, transforming a state in plain sight from a constitutional democracy to an autocracy, all the while appearing to honor the constitution. (Scheppele)

"The tragedy of the anticommons" (Michael Heller)

1. A coordination breakdown where the existence of numerous rights holders frustrates achieving a socially desirable outcome 2. A pharmaceutical company saw a way to cure Alzheimer's, but couldn't use patents of other companies.

"Remedy and Reaction" and Exceptionalism

1. This book is also about a distinctive American pattern, the lack of a universal healthcare system 2. In 2011, when the book was first published, the pattern seem to have changed with the passage of the ACA in 2010 3. That is to say, the US seemed to have come in line with the world

"Taking Rights Seriously" by Ronald Dworkin

1. A government that professes to recognize individual rights must dispense with the claim that citizens never have a right to break its law, and it must not define citizens' rights so that these are cut off for the reasons of supposed good. Any government's harsh treatment of civil disobedience, or campaign against vocal protest, therefore be thought of as to count against its sincerity. 2. The bulk of the law cannot be neutral: it must state the majority's view of the common good. 3. The institution of rights is crucial, because it represents the majority's promise to the minorities that their dignity and equality will be respected. 4. The institution requires an act of faith on the part of the minorities, because the scope of their rights will be controversial whenever they are important, and because the officers of the majority will act on their own notions of what these rights really are. 5. Of course these officials will disagree with many of the claims that a minority makes: that makes it all the more important they take their decisions gravely 6. The government will not reestablish respect for the law without giving the law some claim to respect. 7. Dworkin's argument that one should "take rights seriously" comes from the formal nature of a right rather than from its content. Something is a right because it cannot easily be infringed, even if overall utility would benefit. Yet Dworkin is not a rights- absolutist; rights sometimes can be infringed on policy grounds, but the policy requirements must be compelling rather than merely convenient. 8. This view of rights assumes that adjudicators ordinarily should not "balance" individual rights against the claims of society; otherwise individuals would not have formally defined rights at all. The only appropriate occasion for balancing is when the adjudicator must decide between competing claims of individual rights. 9. There are no rights of society as such, only rights held by individual members of society. 10. Individuals have rights, which are trump cards: very little can trump this right

Joinder of parties

1. A joining of parties as plaintiffs or defendants in a suit or a joining of causes of action or defense 2. Joinder of parties, which was strictly limited at common law, was verbally liberalized to conform with the approach of equity calling for joinder of all parties having an "interest" in the controversy (Chayes)

Choice-of-forum clauses

1. A provision in a contract in which the parties stipulate that any lawsuit between them arising from the contract shall be litigated before a particular court or in a particular jurisdiction 2. Another variety of contract found in World B (Radin)

Shrink-wrap licenses; shrink wrap of the second kind; click-wrap; browse-wrap

1. A shrink wrap license is an end user agreement (EULA) that is enclosed with software in plastic-wrapped packaging. Once the end user opens the packaging, the EULA is considered to be in effect. 2. Shrink-wrap of the second kind is a type of contract that binds the client to terms that can't be seen until the software is run and the first screen is looked at 3. Click-wrap is an online analogue to shrink-wrap of the second kind: one adheres to terms by clicking on box that says "I agree." Though recipients state they have read the terms, in all likelihood, they have not. 4. Browse-wrap is type of contract that the user is unaware of when on a website, as user is clueless, until she finds and clicks on terms of service that can be altered at the pleasure of the website owner 2. Another variety of contract found in World B (Radin)

General purpose technology

1. A technology that has multiple purposes e.g. steam engine, computer. 2. This has far-flung effects and is very important for growth. 3. It takes a long time for general purpose technology to have an effect of productivity. 4. For instance, it took a while for factories to be laid out on the basis of steam power and to adjust their design to electricity. Businessmen required significant time to restructure the layout of production. Factories went from being vertical to horizontal. The same is true with computers. 5. As for productivity, Solow famously said, "Computers are everywhere, but in the productivity data."

Marriage and distributive justice

1. A third consideration in favor of one-spouse-per-person is distributive fairness. 2. Marriage is a great good, and most men and women strive mightily to find a suitable marriage partner. 3. This opportunity should be made fairly available to all. 4. We should design social institutions so that all people have a fair opportunity for a happy family life. 5. Evidence suggests that if we grant people in general a permission to marry multiple spouses, that opportunity will be taken up very unevenly and will tend to be to the advantage of higher status, more powerful, and wealthier males. 6. Polygamy may be a reasonable option for women in desperately poor places where it is better to be the second or third wife of a well-off farmer than to starve with a poor husband of one's own. 7. But the historical record and other evidence suggest that where those circumstances have been left behind we should say "good riddance" to polygamy, as societies the world over have done or are doing 8. In communities in which polygamy becomes a significant presence, lower status males are greatly disadvantaged with respect to the opportunity to begin their own families. 9. The evidence suggests quite powerfully, it seems, that monogamy furnishes the social basis for a much fairer distribution of the opportunities for family life. ("The Future of Marriage" by Stephen Macedo)

Adhesion contracts

1. A type of contract in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage 2. E.g. parking lot ticket because you adhere to it by taking hold of it and then driving your car into the lot and the company takes no responsibility for your car 3. Central to World B (Radin)

Crux of Acemoglu and Robinson's Argument

1. Acemoglu and Robinson give institutions a distributive element. 2. For them, greater equality leads to greater growth. 3. In the past, extractive institutions were established and elites lived off of them like parasites. 4. But in other parts of the world, history happened in such a way that inclusive institutions arose. 5. This is not a theory of inevitability. 6. In 1400s no one would pick England as place for development. 7. Nevertheless, Acemoglu and Robinson don't necessarily have the last word.

Vibrancy of civil society in early-19th to mid-20th century America

1. Alexis de Tocqueville on the role of local government, newspapers, and free association in counteracting both tyranny and individualism 2. Characteristic patterns: federated, chapter-based, cross-class, gendered associations

The knowledge-power dilemma (explained)

1. Also known as the dictator's dilemma 2. Rulers may be interested in economic growth and may see more advanced communications as a way to growth. 3. Rulers, however, also worried losing power and/or stability to advanced communications 4. Authoritarian modernization is intermediate case

Authoritarian modernization

1. Also known as the dictator's dilemma 2. Rulers may be interested in economic growth and may see more advanced communications as a way to growth. 3. Rulers, however, also worried losing power and/or stability to advanced communications 4. Authoritarian modernization: intermediate case. This is the idea that economic development is best managed top-down by a wise, paternalist state. e.g. China channels discussion in certain directions.

"Conditions Favoring the National State" by Charles Tilly

1. Alternatives: 1) political federations/empires, 2) theocratic federations, 3) trading networks, 4) persistence of feudalism 2. Preexisting political fragmentation, weakness of corporate structures, effectiveness of specialized organization, the openness of the European periphery and the growth of cities, trade, merchants, manufacturers and early capitalism weighed the outcome toward the nation-state 3. Direct lead to Wimmer paper: "The way to check out such assertions is through a detailed comparative examination of the correlates of state-making and the alternative processes in Europe and elsewhere."

The Civil Society Dilemma

1. Ambiguities in a democracy of using private wealth for public good through nonpublic channels - this is civil society problem 2. Theory: vibrant civil society necessary for proper functioning of democracy 3. Zunz: foundations can do a lot of good 4. Mass giving can be good too 5. Underlying problem: philanthropy meant to address problems addressed by state 6. In US we have a weak-state system 7. The Constitution gives us a minimalist state 8. The solution: there needs to be a role for the state to take care of the less fortunate

"Dualism" of the legal system

1. Ambiguity and overload of rules, overloaded and inefficient institutional facilities, disparities in the supply of legal services, and disparities in the strategic position of parties-is the foundation of the "dualism" of the legal system 2. Dualism permits unification and universalism at the symbolic level and diversity and particularism at the operating level (Galanter)

Two meanings of American exceptionalism

1. America as an exception: This is the neutral sense. That is to say, the US has developed in an exceptional way. As Shafer puts it, the United States "has to be understood differently." In this sense, the US is an exception from Europe but also an exception from Canadian and Latin American patterns of development. Seymour Martin Lipset notes that American exceptionalism is a two-edged sword. America has a big, powerful state but also a violent history. Lipset says we have to account for both. 2. America as exceptional: That is, American not just an exception but also exceptional in its own right. There is the heroic, missionary conception of America. As Tom Paine put it, "The cause of America is in great measure the cause of all mankind." That is, the US is a beacon. Belief in the unique virtues of one's country, however, is not exceptional. This idea of exceptionalism has become a force in itself. As Palin put it in a 2008 debate with Joe Biden, "America is a nation of exceptionalism."

Exculpatory clauses

1. An exculpatory clause relieves one party to the agreement of liability as a result of actions (or lack of actions) performed in the course of carrying out the terms of the contract 2. Another variety of contract found in World B 3. Takes away clients' rights to bring suit for harm caused by another (Radin)

Specialized invention

1. An invention that has one specific purpose e.g. cotton gin 2. An invention of this type can be important in its own right

Marriage as a legal institution

1. And marriage is a word that today, as in the past, matters politically, legally, culturally, and for individuals as they construct meaning in their lives 2. Over the ages there have been myriad changes within, and to, the institution of civil marriage. Marriage is not a static institution, nor is it viewed or experienced the same way in every era, class or culture, or by people of different generations. 2. Throughout world history (including American history), wives were considered the property of a man, with no rights to their children's legal guardianship or to property. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Case-by-case decision-making

1. Another institutional strength of courts in general that protects constitutional courts in general is the low-visibility, technical, incremental case-by-case mode of judicial decision-making 2. In doing so, courts not only finesse political crisis and avoid crisis but also ensures risk is reduced, as small steps easier to reverse than huge ones (Shapiro)

Dyads, tryads, and reciprocity

1. Another set of considerations that count in favor of the "two-ness" of marriage has to do with practical and common sense aspects of stability and flourishing in human relations. 2. Marriage nowadays is not just an alliance for the pooling of property and other resources, it is unique (or nearly so) in the depth and breadth of its commitments. 3. Two people come to depend upon each other very deeply and across wide segments of their lives, making each other uniquely and deeply vulnerable to loss and betrayal. 4. Anyone who has been married or in a long term relationship similar to marriage knows how difficult it is to get to know and accept another person across a wide swath of private and public settings. 5. Life partners and spouses must negotiate ways of living together and planning for the future, coordinating their actions and plans across very extensive parts of their lives, from the trivial to the profound: from their preferences for food and drink to their deepest moral and religious beliefs, their choices of occupations and friends, their taste in entertainment and politics 6. Bringing in a third person - making the dyad a triad - compounds the complexity of all of these negotiations, and seems a recipe for conflict. 7. Given the depth and breadth of the mutual commitments associated with marriage, it is hardly surprising that threesomes or larger multiples are less stable, at least if they aspire to protect and promote all the spouses interests equally (where wives are highly dependent on their husband, polygamy can be stable). 8. It seems no mystery that the twoness of marriage makes sense in egalitarian societies: with monogamy, each spouse depends equally and reciprocally on the other. ("The Future of Marriage" by Stephen Macedo)

Exploitation of the corporate form by majority shareholders

1. As Credit Mobilier scandal demonstrates, courts effectively allowed majority shareholders to profit at the expense of minority shareholders. 2. These practices were not halted until the creation of the SEC and the rise of better corporate governance. 3. Despite these risk in the Gilded Age, minority shareholders invested and economic development proceeded apace.

General incorporation laws

1. As time passed, corporations' obligations to the public were greatly reduced 2. A major step in this process was the enactment of general incorporation laws in the 1830s and 1840s 3. Instead of gong to a legislature for a charter, people had to fill out some forms and pay a fee to create a corporation 4 In general, these laws were anti-monopolistic. More groups were able to start corporations.

The rise of an economy populated by corporations

1. As time passed, corporations' obligations to the public were greatly reduced 2. A major step in this process was the enactment of general incorporation laws in the 1830s and 1840s 3. Instead of gong to a legislature for a charter, people had to fill out some forms and pay a fee to create a corporation 4 In general, these laws were anti-monopolistic. More groups were able to start corporations. 5. At same time, these laws led to economy being repopulated by LLCs. 6. There were lots of misgivings that LLCs would lead to recklessness 7. As these corporations grew to unprecedented scale and scope, some grew into monopolies. 8. First monopoly was Western Union Telegraphy Company in 1866.

The one-vote-per-share rule

1. As time passed, corporations' obligations to the public were greatly reduced 2. A major step in this process was the enactment of general incorporation laws in the 1830s and 1840s 3. Instead of gong to a legislature for a charter, people had to fill out some forms and pay a fee to create a corporation 4. Over time, government stipulated that one share = one vote.

Judicial lawmaking as a concomitant of judicial conflict resolution

1. Assume that the constitutions of democratic states are themselves democratic in that they are enacted by the will of the demos 2. Constitution thus contract between demos and the government 3. In face of classic principal-agent problem, self-enforcement comes through separation of powers 4. Conflict is good and conflict resolving agent, if demos so chooses, is a court 5. If it is a court, demos must accept some lawmaking by courts and certain capacity for judicial defense of its lawmaking activity 6. Court is democrat (Shapiro)

"The Success of Judicial Review and Democracy" by Martin Shapiro

1. Assume that the constitutions of democratic states are themselves democratic in that they are enacted by the will of the demos 2. Constitution thus contract between demos and the government 3. In face of classic principal-agent problem, self-enforcement comes through separation of powers 4. Conflict is good and conflict resolving agent, if demos so chooses, is a court 5. If it is a court, demos must accept some lawmaking by courts and certain capacity for judicial defense of its lawmaking activity 6. Court is democratic, precisely because demos chose it as conflict resolver 7. Different with right-enforcing courts: constitution makers set up a conflict between courts and the rest of government or courts acts as enforcement mechanism 8. In that case, court not resolving conflicts but fighting against rest of court and in doing so, loses its legitimacy and appeal, because it's not resolving any conflicts 9. Thus in divisions of powers cases, court would exist regardless of rights disputes: this means right courts are far easier to abolish, because doing so doesn't disrupt the entire constitutional order 10. A constitutional court that is both a rights court and a divisions of power court is in the best spot, because, if one of its decisions engenders majority opposition, it will have defenders along the other dimension

Explanatory hypotheses for Constitutional judicial review

1. Assume that the constitutions of democratic states are themselves democratic in that they are enacted by the will of the demos 2. Constitution thus contract between demos and the government 3. In face of classic principal-agent problem, self-enforcement comes through separation of powers 4. Conflict is good and conflict resolving agent, if demos so chooses, is a court 5. If it is a court, demos must accept some lawmaking by courts and certain capacity for judicial defense of its lawmaking activity 6. Court is democratic, precisely because demos chose it as conflict resolver 7. Different with right-enforcing courts: constitution makers set up a conflict between courts and the rest of government or courts acts as enforcement mechanism 8. In that case, court not resolving conflicts but fighting against rest of court and in doing so, loses its legitimacy and appeal, because it's not resolving any conflicts 9. Thus in divisions of powers cases, court would exist regardless of rights disputes: this means right courts are far easier to abolish, because doing so doesn't disrupt the entire constitutional order 10. A constitutional court that is both a rights court and a divisions of power court is in the best spot, because, if one of its decisions engenders majority opposition, it will have defenders along the other dimension (Shapiro)

The Development of IP Law

1. At founding, Articles of Confederation had no provision for patent and copyright. 2. States had their own laws 3. Noah Webster was apostle for patent and copyright protection, because he wrote textbooks.

The U.S. Constitution's Progress Clause (copyright and patent)

1. At the Constitutional Convention, a provision passed for patent/copyright: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" 2. Innovation, in other words, is written into the Constitution. 3. Authors and inventors are given rights for a limited time. 4. There are two theories about this Progress Clause. 5. One says that it protects natural rights, the right that comes from people's labor. 6. The other says that it provides incentives. 7. It is clear that the purpose of this clause is to provide incentives. 8. In state constitutions, however, the Progress Clause is more natural rights based. 9. Useful arts - practical stuff.

Legal Philanthropic Innovation

1. At time Carnegie and Rockefeller wanted to get rid of their money, no institutions existed to do away with sources of social distress. 2. They had to create an organization to manage money 3. The organization they ended up creating [separately, of course] was philanthropic foundation 4. The difficulty was that in Anglo-American trust law there was an established rule against perpetuities. A perpetuity is a restriction against making an estate inalienable perpetually or for a period beyond certain limits fixed by law. The rule was that one couldn't tie up wealth longer than one's life. This is the "mortmain," the "dead hand" of the past. 5. Capitalism required liquid wealth and a perpetual trust had to be for specific purposes and/or for specific individuals. 6. Both needed a form for indefinite time and people. 7. Rockefeller wasn't sure that a philanthropic foundation would be allowed under New York State law. 8. Rockefeller's lawyer had Rockefeller Jr. sue Rockefeller Sr. 9. Courts accepted this [also Tilden Act]

Constitutional authoritarianism

1. Authoritarian rule under a constitution 2. E.g. Nazi Germany, Russia after the Cold War, Hungary today and Brazil under the dictatorship (Scheppele)

Alternatives to the national state in the 13th century?

1. political federations/empires 2. theocratic federations 3. trading networks 4. persistence of feudalism

Dimensions of Civil Society

1. Autonomy (rights of association): Do people have a right to create associations without the permission of the state? Monarchical European regimes limited associations and meetings. Same thing happened before the French Revolution and when Napoleon was in power. In early 19th Century France few associations developed. And even today the Japanese government controls the foundation of associations. Beyond the legal right, does the government positively support the right to associate? The government has to be able to stop thugs from shutting down meetings. 2. Monopoly versus competition ("corporatism" versus "pluralism"): Relation to state (representative functions, service functions). When a given state has an established church, that church has a monopoly over religion. The situation is different, when there's a separation of church and state, as churches are forced to compete. 3. Density of associations: Are there many organizations? Do people belong to many organizations? 4. Bridging (cross-cutting) versus bonding associations: A) homophily ("birds of a feather flock together"), B) ideological or religious parallelism ("pillarization").

"Rule-mindedness" of litigants

1. Because his stakes in the immediate outcome are high and because by definition OS is unconcerned with the outcome of similar litigation in the future, OS will have little interest in that element of the outcome which might influence the disposition of the decision-maker next time around 2. For the RP, on the other hand, anything that will favorably influence the outcomes of future cases is a worthwhile result (Galanter)

US Health Policy Dilemma

1. Because of this FFS set-up, healthcare costs exploded, even as many went without insurance 2. Most low-income people under age 65 didn't qualify for Medicaid

From speculation to science

1. Beginning in the Renaissance, the basis of knowledge underwent a transformation 2. From the 18th Century onward, not just ideas about science but scientific institutions such as journals and societies sprung up 3. These institutions uphold certain norms and create a reward system 4. This shift isn't just intellectual but also institutional

Reinventing government?

1. Bill Clinton used this phrase. 2. The idea is to use business process redesign ideas to make government more efficient. 3. In this period, inspector general offices were created in most federal departments. 4. The guys with guns in IG offices are the internal FBI, the guys without guns are auditors who report to Congress.

Dred Scott

1. Black slaves not considered citizens 2. In Dred Scott, SCOTUS said blacks can claim none of the rights of citizenship 3. For this reason, we have the 14th Amendment

Macedo on Law

1. Blackman in Bowers v. Hardwick: we need reason to maintain laws 2. Law has to be based on public reason and ethics 3. General movement in law is from law to contract. Law facilitates the meaning of marriage 4. In prenups, the inequality of power between the couple is reflected

"The Social Transformation of American Medicine" and "Remedy and Reaction"

1. Both books are about formation of distinctive institutional pattern in US 2. US pattern is distinct from European patterns 3. There is the question of American institutional exceptionalism 4. In the case of the medical profession and healthcare industry, the medical profession exercised extraordinary authority over other institutions such as hospitals

Boilerplate rights deletion scheme

1. By creating such contracts, firms do away with the rights of their clients 2. Contracts entered into supersede the legal rights of the party lacking power e.g. firm takes away right to trial by jury 3. To deal with the firm, clients must enter into the legal universe of its devising, a move that negates their rights 4. Radin shows that the tide has turned since the consumers' rights movements of the 1960s and 1970s (Radin)

Philanthropic Foundations: Later Times

1. By time of WWI, there were few foundations 2. Foundations worked with new research universities 3. Colleges (e.g. Princeton, Harvard) were different from the Humboldtian conception of the research university 4. HYP colleges became research universities in the late 19th Century 5. There was synergy between foundations and research universities 6. Their first focus was public health, as this looked like an area where science could work well 7. Rockefeller pioneered public health research at Princeton 8. It was difficult, however, for foundations to invest in social and hence political problem solving 9. The fear was that funds would undermine the democratic nature of policymaking 10. In 1916 the Walsh Commission explored the link between democracy and foundations. Walsh worried that foundations would weaken the fabric of democracy. Henry Ford even testified against foundations in front of the Walsh Commission. 11. Foundations were smart: they dumped their money into institutions that didn't bear their name like Brookings. 12. Foundations did this in the context of the fear that socialism would overtake America, as it had overtaken Europe. 13. By WWII, these foundations had become very important. 14. Nevertheless, there are severe limits on what these organizations can do. These organizations didn't have nearly enough money to help people out through the Great Depression. 15. During WWII, the government got in the business of financing research through NSF, NIH, and the Manhattan Project. 16. It's only after WWII that corporations get in the philanthropic game.

Defining capital, capitalist enterprise, capitalism as an institutional system

1. Capital: not just wealth, wealth as a factor of production. Wealth produces a return, income. Capital can take a variety of forms - physical, financial, intangible. There's human capital, social capital and natural capital (in the environment). 2. Capitalist: a person who can provide private assets to an enterprise, that in turn generates returns to owners 3. Capitalist enterprise: firm and income streams owned by one or more capitalists. 4. Capitalism: a system in which capitalist enterprises predominate

Max Weber's conception of capitalism in his General Economic History

1. the "method of enterprise"; "rational capital accounting"; "calculability" of law 2. Weber's institutionalist account of capitalism's origins

Methods of payment for medical services

1. Capitation contracts: a fixed per capita payment made periodically to a medical service provider (as a physician) by a managed care group (as an HMO) in return for medical care provided to enrolled individuals. This was used in fraternal societies. This was called lodge practice and existed among ethnic groups. Doctors hated this, as they felt exploited. 2. Fee-for-service: health care providers are paid for each service (like an office visit, test, or procedure). This is the way doctors preferred to be paid. The defense of FFS was seen as key to the defense of professional autonomy. 3. Salary: health care provider receives a salary

Cardinal laws

1. Cardinal laws are laws on especially important topics specified by the constitution that must be passed by a two thirds vote of the Hungarian Parliament 2. A constitutional amendment requires an absolute two-thirds majority: two-thirds of all members of Parliament 3. A cardinal law requires a relative two-thirds majority: two-thirds of a quorum of members of Parliament 4. Cardinal laws are therefore easier, though not much easier, to pass than constitutional amendments and much harder to pass than ordinary laws (Scheppele)

Fidesz Party (Hungary)

1. Center-right political party that seized power in Hungary in a constitutional coup in 2010 (Scheppele)

Political science: old institutionalism, behavioralism, new institutionalisms

1. Central storyline: rise, then fall and finally return of an idea 2. In early 20th Century, institutions central to analysis 3. Woodrow Wilson., first political science PhD, wrote book on congressional government: like other early institutionalists, he focused on formal institutions 4. Objection at the time to work of this sort: problem of formalism. Objection had two components: 1) formal rules don't describe what actually happens and 2) accounts too descriptive, not analytical or theoretical enough 5. A revolt against formalism occurred and in many areas, there was increased emphasis on what was actually going on 6. At the same time, there was philosophical movement known as Pragmatism, which emphasized that to understand anything, need to know how it functions in the real world 7. One outcome of pragmatism was legal realism, which began the empirical study of law e.g. study police on streets, not law on the books 8. In the 1950s political science movement known as behavioralism emerged. It is the view that the subject matter of political science should be limited to phenomena that are independently observable and quantifiable 9. Behavioralism encountered difficulties, because many explanators and phenomena are unobservable. Some people feel so powerless that they never show up to the town hall. Focusing on observables misses out on those locked out of institutions. The behavioralists made the same mistakes as the advocates of the predictive power of law. 10. By 1970s/1980s political science started to rediscover institutions. There was a split between the rational expectations institutionalists and the historical institutionalists. These differences can be reconciled by saying people acted rationally at crucial junctures.

Economics: old institutionalism, neoclassical economics, new institutional economics

1. Central storyline: rise, then fall and finally return of an idea 2. In the early 20th Century, economists such as John R. Commons and Thorsten Veblen had a historical focus and paid particular attention to institutions. Commons thought the fundamental economic unit was the transaction, whereas Veblen focused on the economy as an evolutionary phenomenon. 3. This strand of economics encountered he same criticisms as the old political science. Neoclassical economics, which focuses on rational individuals outside of historical time, won out. Neoclassicism resolved the dilemma between external and internal by making people self-interested. History has no role in this model. 4. In the 1970s/1980s economists such as North rediscovered institutions.

Rights of citizens, legal residents, persons

1. Citizenship enables an individual to make claims on the government and the government to make claims on that same individual 2. Citizenship is also a right to certain kinds of rights 3. The state may open citizenship to certain groups such as legal residents and exclude others such as undocumented immigrants from it 4. 3 categories of rights: A) Civil rights: enforceable right or privilege, which if interfered with by another gives rise to an action for injury B) Social rights: rights that are necessary for full participation in the life of society (in special cases, allowed for noncitizens and their children in US) C) Political rights: the rights that involve participation in the establishment or administration of a government (generally restricted to citizens in US) 5. In Western stories, rights have expanded greatly. Civil rights led to political rights, which in turn led to social rights. 6. Rights are guaranteed to different classes of citizens. To the extent that rights are acknowledged to all persons, they matter less. 7. Brubaker: citizenship also part of international state system e.g. passport is institution that gives rights. 8. Citizenship has not lost its importance in globalized age 9. Different rules of citizenship reflect tension between universalistic ideas and nationalistic ideas

The rise of the "tax state"

1. Classical liberalism emphasized both constitutional government and laissez-faire 2. While there was strengthening of private rights, there was also strengthening of constitutional government 3. In the course of the 18th and 19th Century the idea spread that the government for all people and open to everyone

Threshold of interaction

1. Closure may occur on the threshold of interaction or inside interaction 2. In the case of the threshold of interaction, participation is restricted through barriers to entry or selective admission 3. Closure against noncitizens exercised mainly on the threshold of interaction e.g. noncitizens prevented from entering the territory, voting, serving in the army (Brubaker)

Social closure

1. Closure refers to processes of drawing boundaries, constructing identities, and building communities in order to monopolize scarce resources for one's own group, thereby excluding others from using them 2. According to Brubaker, citizenship is a mechanism of social closure that distinguishes citizens from foreigners 3. In this sense, state is being "externally exclusive," not "internally exclusive" 3. The nation-state in his view is architect and guarantor of a number of distinctively modern forms of closure e.g. border, suffrage, military service and naturalization (Brubaker)

Distinguishing professions from other occupations

1. Collegial dimension: this is the peer orientation i.e. lawyers look to other lawyers to judge their work and no one else. This feature distinguishes professions from jobs in which manager with different qualifications than his subordinates evaluates their work. 2. Cognitive dimension: a profession demands a high level of skill that professionals acquired through training that others don't have. 3. Moral dimension: professionals have to uphold a higher code of conduct than ordinary people. The idea is that professions are service-oriented. This is the ideal. This is the basis on which professions asks society to give them the power of self-regulation.

Communism and competitive cooperation (or "coopetition")

1. Common ownership of scientific knowledge, principles 2. Notion that science is removed from the world of property 3. Process of coopetition: though there are rivalries, scientists collaborate with each other 2. Extended sense of common ownership of intellectual property 3. Sole property right left to the individual is "recognition or priority" — desire for which thus become the normal response to this element of the ethos 4. Secrecy is the antithesis of this norm; full and open communication its enactment (Merton)

The fog of health care

1. Complexity is not an inherently bad thing. Our computers, smartphones, and the Internet are complex, but they are relatively easy to use, and they make other things easier and cheaper. Complexity becomes a problem, however, when it adds to cost and difficulty without yielding compensating benefits. In healthcare, patients and providers alike face that kind of gratuitous complexity. The complexity has economic effects: the administrative costs of healthcare are far higher in the United States than in other countries with more unified or standardized systems of healthcare finance.The complexity also has a psychological impact: health insurance and the healthcare system are confusing and frustrating to many of the sick and their families, as well as to those who care for them. Not least of all, complexity has a political impact: health policy has become so intricate that proposals for change also seem too complicated to many people, lending plausibility to charges that "death panels" or other insidious schemes are secretly hidden inside them. 2. In an era when American politics has become polarized on partisan and ideological lines, the fog of healthcare has become so thick as to make rational public discussion of health policy nearly impossible. The United States worked its way into this fog step by step. Instead of enacting a comprehensive system of healthcare finance, as did the other rich democracies of the world, Congress created different programs for different groups — veterans, the employed, the elderly, some of the poor. Each of these programs was based on its own distinctive principles, which run the gamut of the public-private spectrum. For veterans, there was a federally owned and operated health system; for seniors, a federal insurance plan with private supplemental insurance; for the categorically eligible poor, a mixed federal state program; for workers with employer-provided coverage, a tax subsidy for private insurance. As health costs rose, employers and private insurers adopted a myriad of different plans and rules in a largely unsuccessful effort to keep costs down. For similar reasons, programs and rules multiplied in the public sector as well. Many of the complexities in those programs stem from legislative compromises struck in Congress, which were then overlaid with further compromises in later additions and revisions. Private markets, federalism, and legislative compromise have their virtues, but transparent and streamlined arrangements are not necessarily among them. Ironically, some of the most highly prized features of America's political economy have produced one of the most reviled features of the American healthcare economy — its bewildering complexity.

Consent, consideration

1. Consent: Voluntary acquiescence to the proposal of another; the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or an infringement of an interest shall occur 2. Consent underpins World A 3. Consideration: something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances 4. Payment is evidence of consideration for court 5. There is consideration in both World A and World B, though consideration is way more important in World B, as it gives weight to purported contracts (Radin)

"Constitutional Self-Government" by Christopher Eisgruber

1. Constitutionalism imposes boundaries about democratic choice in the same way every other form of democratic government does 2. When comparing inflexible Constitution to alternatives, find that democracy might suffer, if Constitution easier to amend, because 1) flexible amendment procedures might make it difficult for a nation to develop and sustain a stable institutional foundation for democratic policymaking 2) flexible amendment procedures might encourage improvident reforms that would encumber later generations and 3) majorities might use amendment power to consolidate power at the expense of the people as a whole 3. Like other institutions, Constitutions define pathways for action: though constitutions limit government, they also establish it 4. Right way to assess constitutional self-government is by asking how government should be limited, not whether it should be limited 5. Written inflexible Constitution can benefit nation in three ways: 1) by settling certain basic structural questions, establishes stable institutional foundation for democratic policymaking , 2) by establishing a separate and difficult track for some political institutions, focuses public attention on those decisions and improve deliberation on them and 3) by prohibiting majorities from amending the Constitution, more likely nation will respect difference between democracy and majoritarianism 6. Constitutional pro-democratic justifications have crucial implications for constitutional interpretation as well as constitutional reform: if we understand the Constitution as a practical instrument for self-government, we should construe the Constitution's abstract language in a way that permits Americans to improve and implement their judgements about justice and public policy. The Constitution's purpose gives no reason to shackle the Constitution's ambiguous language to old conceptions of right and wrong that no longer seem defensible.

Supreme Court decision on the Affordable Care Act

1. Constitutionality of the mandate: Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that the Individual Mandate penalty is a tax for the purposes of the Constitution's Taxing and Spending Clause and is a valid exercise of Congressional authority. 2. Medicaid expansion: Chief Justice Roberts, with Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan, concluded that the Medicaid expansion provisions was unconstitutionally coercive as written. Congress does not have authority under the Spending Clause to threaten the states with complete loss of Federal funding of Medicaid, if the states refuse to comply with the expansion. ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

The changing architecture of governance

1. Constitutionalization and democracy: A big number of constitutions were written at this time: that is to say, lots of choices were made about the structure of government. 2. Global expansion of judicial independence and judicial power. There was a global increase in judicial power. In some countries, this is a facade, "rule by law." 3. Central bank independence. There was also increased independence of central banks. Certain monetary functions used to be politically controlled. Now these functions are insulated from politics.

"The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields" by Paul DiMaggio and Walter Powell

1. Contend that the engine of rationalization and bureaucratization has moved from the competitive marketplace to the state and the professions 2. Once a set of organizations emerges as a field, a paradox arises: rational actors make their organizations increasingly similar as they try to change them. 3. Three isomorphic processes--coercive, mimetic, and normative--lead to this outcome. 4. Institutional isomorphism may explain why organizations are becoming more homogeneous, why elites often get their way and the irrationality and the lack of innovation so common in organizational life

The early public-service model of the corporation

1. Corporations have undergone dramatic change 2. In early modern Europe, corporations were face-to-face institutions such as monasteries, guilds and cities 3. There was no distinction between public and private 4. Corporations needed to get charters from state government early 5. The charter was for a public purpose, even if investors were hunting for a return: that is to say, the corporation was supposed to provide a public service 6. As time passed, corporations' obligations to the public were greatly reduced

Contract formation

1. Could argue state delegates power to individuals to make legally enforceable obligations 2. This means there can be more confidence in contracts 3. Law stands in the background, as very few contracts go before the courts 4. If there were no contracts, we'd be more reluctant to enter into bargains, trust others less, reputation and have to rely on private alternatives like the Mafia to enforce agreements. That is to say, we derive great benefits from contracts. 5. Transaction costs are the cost of contracts 6. Contracts have contested boundaries 7. We prevent certain kinds of contracts from being entered into 8. Important to emphasize: we want to bear in mind not only rules of contract but also practices of contract

Citizenship by place of birth (jus soli)

1. Countries that receive immigrants follow jus soli 2. In France, however, citizenship applies at age of majority, not birth

"Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law" by Margaret Jane Radin

1. Courts continue to analyze and enforce boilerplate on contract law grounds, despite the fact that boilerplate is the opposite of a traditional contract 2. Boilerplate makes a mockery of the main justification for contract enforcement: consent of the parties 3. Most people are unable to accurately assess risk and tend to downplay the likelihood that a company will harm them 4. With the stroke of a keyboard, corporations use boilerplate to eliminate fundamental legal rights guaranteed by the Constitution and protected by laws that democratically elected representatives enacted

Interpretative instructions

1. Courts sometimes rely on explicit and implicit interpretive instructions from Congress about how statutes should be construed 2. The agency interpretation will also be defeated when Congress has issued interpretive instructions, argues Sunstein (Sunstein)

Wordplay of "Creation of the Media"

1. Creation of the media is a pun, as it implies creating something not real 2. There's an old idea in sociology that what is defined as real is real. 3. Media is very powerful in its ability to effect idea of reality

Rulers' "fear of creative destruction" as an impediment to growth

1. Creative destruction: A term coined by Joseph Schumpeter to denote a "process of industrial mutation that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one." 2. Fear of creative destruction is often at the root of the opposition to inclusive economic and political institutions. European elites scared of Industrial Revolution, because spread of industry threatened to take away income from landholdings and trading privileges and political monopoly (Acemoglu and Robinson)

Cultural authority versus social authority

1. Cultural authority: Authority, then, also refers to the probability that particular definitions of reality and judgments of meaning and value will prevail as valid and true. Starr calls this form of authority cultural authority to distinguish it from the social authority that Weber had in mind e.g. diagnosis, as why should people accept what physicians say? 2. Social authority: Most conceptions of authority emphasize the regulation of action. In the classic definition of Max Weber, for example, Herrschaft (variously translated as authority or domination) is the probability that people will obey a command recognized as legitimate according to the prevailing rules in their society. This is the social authority that Weber had in mind e.g. getting prescriptions ("The Social Transformation of American Medicine" by Paul Starr)

Defense of Marriage Act

1. DOMA was signed into law under President Bill Clinton on September 21, 1996. It mandates unequal treatment of legally married same-sex couples, selectively depriving them of the 1,138 protections and responsibilities that marriage triggers at the federal level. Under DOMA, married same-sex couples are denied a long list of important protections and responsibilities, including Social Security survivor benefits, immigration rights, family and medical leave, and the ability to pool resources as a family without unfair taxation. 2. San Francisco Mayor Newsom's assertion of his authority to declare the constitutionality of same sex marriage finds any number of earlier analogues. Marriage has always been an institution about which local and state officials felt authorized to make constitutional claims about. The apparent force of the Full Faith and Credit clause that appeared to require conservative state officials to recognize divorces and remarriages made in more liberal jurisdictions was always qualified by a public policy limitation. That "limitation" held that where the public official determined that a strong public policy of the state was implicated (say, for example, a state's strong public policy against marital freedom) it was constitutionally permissible for the official to deny full faith and credit to the offending law or practice of the "bad" state. As a side note, and as a measure of the continuities that I have been exploring, it is worth mentioning that the Defense of Marriage Act is in its fundamentals a restatement of this very old public policy limitation. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Formal and informal rules

1. Dangers of "formalism": formalism, by focusing only on formal rules, misses informal rules that govern behavior, as rules and behavior sometimes diverge. 2. Beyond that, even the inclusion of informal rules doesn't capture all the complexity of social life e.g. discrimination happening unconsciously

Debt as an institution

1. Debt is not just an economic relationship. 2. Debt is also an institution with rules and practices that vary across societies and time. In some societies, inability to pay debt led to slavery. 3. Even in absence of slavery, debt peonage was common. In the 18th and 19th Centuries, people were sent to debtors' prison. 4. Abolition of debtors' prison was a major institutional development, especially with people deep in debt after mortgage crisis. 5. Debt also has a moral dimension, as people think it's sinful

States and state-building

1. Defining the state; "stateness" as a variable 2. The inner and outer faces of sovereignty

"The Social Transformation of American Medicine: A Comparative View from Germany" by Stefan Gress, Stefan Gildemeister, and Jurgen Wasem,

1. Differences between the autonomy of the medical profession in Germany and the United States would in fact be much smaller than they appear to be in "The Social Transformation of American Medicine". 2. Professional organizations of physicians in Germany—the country with the longest tradition of compulsory social health insurance—even today are very protective of their professional autonomy, their income, and their market shares. 3. Paper argues further that, in the long run, the corporatist structure in countries with compulsory social health insurance has protected the interests of the medical profession at least as effectively, perhaps even more so, as in the United States. 4. In contrast to the United States, governments in many European countries either made social health insurance compulsory or quite substantially subsidized the mutual benefit societies that workers formed among themselves. 5. The case of Germany in the late nineteenth century highlights the reasons for this divergent development. 6. The raison d'être of Bismarck's strong conservative central government for introducing compulsory social health insurance in Germany was to pacify social unrest and to increase the cohesion of the social fabric of the society. 7. In the United States, there was neither a strong central government nor sufficient social unrest to provoke a reaction from the government. 8. Unions in both countries were rather reluctant to allow governmental intrusions into what they felt was their realm of power and influence. 9. Employers in Germany were leaning much more in favor of compulsory social health insurance than were their counterparts in the United States. 10. The medical profession in both countries was rather ambiguous about compulsory social health insurance. 11. A potential decrease of autonomy had to be weighed against a potential increase of income—a decision that led the U.S. profession to oppose any kind of significant reform efforts. 12. The political strength of the German medical profession did not derive entirely from its special status as a profession or from its monopoly on technical expertise. 13. Although the medical profession in Germany definitely has obtained a high degree of cultural authority, the pattern of professional self-regulation by physicians cannot be interpreted as any kind of special privilege granted by the state. 14. The trade union tactics of the medical profession were clearly of major significance in the development of the political strength of physicians in Germany. 15. Government sponsorship of compulsory social health insurance increased physicians' dependence on employment by the funds, but it also added strength to the physician trade union movement

Bridging (cross-cutting) versus bonding associations

1. Distinction has been made between homogeneous (or bonding) and heterogeneous (or bridging) networks. Bridging essentially means that in different domains, different groups come together. This can have an enormous impact on the development of conflict. 2. Bonding: Homophily ("birds of a feather flock together"). Homophily is love of the same. People like to associate with people like them. In US one of the striking thing is that associations were bridging but not bonding. The macro question is whether people only see themselves associating with others like them. That is to say, does civil society reinforce identities? Homophily sometimes results in pillarization. Sometimes people do overcome their differenes. 3. Ideological or religious parallelism ("pillarization"): Pillarization of society means the vertical integration of a subcultural community in a system of political representation. E.g: In some societies there are associations that represent only one group. There are parallel organizations in many different spheres. Prior to 1990 in Dutch society, there was a Catholic pillar, a Protestant one etc. This meant that in education, vacation, recreation and everything else there were separate organizations for different groups.

Normative dimension (values and norms; internalization, commitments)

1. Dominant approach in mid 20th Century 2. Emphasized values, which led to norms that in turn shaped the structure of institutions

Nonlegal Means of Influencing Norms

1. During WWI, Wilson administration used a variety of means to control dissent beyond Espionage Act and the Sedition Act. 2. Certain forms of speech were criminalized 3. Socialist Eugene Debs was imprisoned for a speech he gave at Canton 4. Wilson administration also created organizations to interfere with dissent and disrupt protest 5. Some dissent came from German-Americans 6. Wilson whipped up anti-German hysteria.

Enabling constraints

1. E.g. Ulysses and the Sirens 2. Courts are the way we bind ourselves to maintain steady course when there are temptations

The decline of legitimate complexity and collapse of early professionalism in the 1830s

1. Early physicians in the 1790s and 1800s got licensing laws passed. 2. In the 1820s and 1830s there was a lot of suspicion of monopolies. 3. At that time, the licensing laws for doctors and others were repealed. 4. Jackson was of the opinion that any one of common sense could do anything, including treat themselves 5. This is precisely why the question of professional authority is so interesting ("The Social Transformation of American Medicine" by Paul Starr)

What North, Acemoglu and Robinson Agree on

1. Economies don't just spring up out of human nature. 2. Economies depend on rules and practices associated with institutions. 3. Same is true of contract. Rules of institutions constrain and empower. Through contract, state delegates powers to individuals to enter into agreements. 4. Through contracts and rule of law, state provides economic service.

English Patent Law

1. English system didn't give out patents to "frivolous" inventions.

The founding moment and its legacies

1. Entrenchment of constitutional liberalism 2. Federalism: the equal footing principle and continental expansion 3. Elasticity of American state power

Constitutional entrenchment

1. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment 2. Entrenchment is an inherent feature in most written constitution 3.The procedure for modifying a constitution is often called amending 4. Amending an entrenched constitution requires more than the approval of the national legislature, it requires wider acceptance 5. In constitutions that are not entrenched, no special procedure is required for modification (Scheppele)

Professionalism as a means of occupational control

1. In English, we make a difference between professions and other occupations 2. Professions are institutions with a legal marking 3. In medieval society, for instance, guilds would have certain rules and practices such as special relationship between masters and apprentices 4. Today unions are also a means of occupational control 5. Professions are also a means of occupational control 6. Professions depend on self-regulation, a code of ethics, barriers to entry due to required and often expensive training, and membership in a professional organization ("The Social Transformation of American Medicine" by Paul Starr)

The medical profession's early 20th-century "escape from the corporation"

1. Even when for-profit corporations made entry into medicine, physicians were able to escape from the corporation 2. In the early 20th Century doctors had high incomes 3. The supply of doctors was dwindling at the same time that demand for medical services was exploding 4. The healthcare industry faced challenges such as the push for universal healthcare 5. Physicians were able to hold back these developments for a while 6. Even though corporations are now dominant in healthcare, doctors, many of whom are in the 1%, have not been proliterarianized 7. Doctors were opposed to profit-making corporations entering the healthcare market 8. They were also opposed to any kind of 3rd party insurance ("The Social Transformation of American Medicine" by Paul Starr)

"The Rise of the Nation-State across the World, 1816 to 2001" by Andreas Wimmer and Yuval Feinstein

1. Event history analysis shows that a nation-state is more likely to emerge when a power shift allows nationalists to overthrow or absorb the established regime 2. Diffusion of the nation-state within an empire or among neighbors also tilts the balance of power in favor of nationalists 3. The global rise of the nation-state is driven by proximate and contextual political factors situated at the local and regional levels, in line with historical institutionalist arguments, rather than by domestic or global structural forces that operate over the long duree

A case study: the abolition of commercial incentives in American government

1. Facilitative payments (customer relationship exists) and bounties (hostile relationship exists) 2. Why public officials now receive salaries

"Comparative Federalism" by Brian Galligan

1. Federalism has proved to be a flexible and resilient form of government, and federal countries have generally prospered since the mid-twentieth century 2. In recent decades, the government environment has changed in ways that are congenial to federalism, with increased prominence of market solutions over government direction and planning that lessens the need for centralized and unitary government 3. The prominence of national independence and sovereignty has decreased with increased globalization of rule making, standard setting, communications, and business 4. Federal systems provide working models of power sharing in complex systems of multiple spheres of government

From status to contract

1. Feudal hierarchy also had legal ramifications: to apply law to a person, needed to know that person's status, as there was one law for aristocrats and another for commons 2. With the rise of modern societies, these older statuses lost their legitimacy 3. Instead, there developed the idea that private ordering depended on contracts freely entered into by an individual 3. In late 19th Century, the idea of freedom of contract became preeminent in Anglo-American law

Autonomy, democracy, and rule-utilitarianism

1. Firms defend boilerplate by making the case that general welfare benefits come from limiting rights 2. This is a rule-utilitarian (rules maximize utility) defense: the rules reduce the prices of products you buy online. In short, you are selling your rights for lower prices. 3. Though there is need for boilerplate, boilerplate should not rob us of our rights 4. That is to say, individuals should be free to maintain their autonomy and society its democratic processes (Radin)

Copycat boilerplate

1. Firms either explicitly collude in the making of boilerplate or implicitly collude by copying the contracts from other firms 2. Further undermines legal rights in World B (Radin)

3 Engines of Change Leading to Greater Acceptance of Gay Marriage

1. First and most important: right to happiness (individualism) 2. Marriage as contractual relationship between equals 3. More mobility, so it's tough to keep people in place

Constitutional inflexibility/rigidity

1. Flexible constitution: a constitution that may be amended by the ordinary process of legislation and is therefore relatively easy to amend 2. Eisgruber defends inflexible constitutions, which are the exact opposite (Eisgruber)

Intellectual Property in Britain

1. From perpetual to limited-term copyright: A) Statute of Anne (1710), B) the end of perpetual copyright (1774) 2. Patenting practices: Statute of Monopolies (1624)

"Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party" by Paul Frymer

1. Frymer argues that scholars need to examine the institutional basis of racism. Of particular interest to him are the state institutions—legislative acts, federal agencies, and the courts—that maintained racial divisions within the labor movement from the 1930s to the 1960s but then contributed to the repair of these divisions between the 1960s and the 1980s. 2. For labor, the 1935 Wagner Act protected the right of workers to organize and created the National Labor Relations Board (NLRB) to carry out its provisions. 3. For the civil rights movement, Title VII of the Civil Rights Act of 1964 prohibited racial discrimination in the workplace and created the Equal Employment Opportunity Commission (EEOC) to apply the law. 3. However, Frymer argues that the rhetorical and temporal separation of these legislative acts, the implicit congressional consent behind that separation, and the quite distinct contexts for the enforcement of each all encouraged not only the persistence of such separation but occasionally fueled adversarial relationships between the two movements 4. Meanwhile, civil rights leaders became frustrated by their failed attempts to negotiate with white labor leaders and litigated aggressively against them. 5. The failure of labor civil rights resulted from the fractured and racially exclusive nature of American democracy since the New Deal. To blame the downfall of labor on courts or on the NAACP ignores the broader institutional constraints of the twentieth-century state. Precisely because electoral democracy failed to provide universal rights, litigation became a primary and necessary tool for civil rights.

Constitutive choices in American communications development

1. General considerations: A) communication, nation-building, and democracy, B) the creative reluctance of American state-building, C) the American culture (cult?) of information 2. The American Revolution as a social revolution 3. Constitution-making in America 4. The political basis of free speech in the early republic 5. Americanization of the post office: subsidies to the press in America vs. taxes in Europe 6. Rules of information disclosure: privacy and secrecy (post office, census) 7. The democratization of competence: education, "useful" knowledge 8. Cheap print and the reading revolution

Citizenship by descent (jus sanguinis)

1. Germany had jus sanguinis 2. Germany has somewhat modified its rule to open up citizenship to Turkish immigrants 3. Citizenship sometimes identified with ethnic/racial background

Defeat of the Clinton health plan (1993-94) and Republican plans (1995-96)

1. Health insurance purchasing groups known as regional health alliances would be responsible for collecting all the premiums owed by consumers and businesses. In addition, states would have to insure that the amounts are indeed paid. The Federal Government would put intense pressure on states to set up alliances guaranteeing health coverage for all state residents by Jan. 1, 1998. If a state did not meet that deadline, the Secretary of Health and Human Services could withhold Federal money and take direct action to set up and operate the alliances.A new agency, the National Health Board, would set a health budget for the nation and would regulate most private health insurance premiums 2. In 1993, 23 Republican senators, including then-Minority Leader Robert Dole, cosponsored a bill introduced by Senator John Chafee that sought to achieve universal coverage through a mandate that is, a mandate on individuals to buy insurance.

Explaining outcomes

1. Historical legacies 2. International influence, 3. Transitional lock-in

Early forms of professional organization in England and the American colonies

1. History is informative, because in the 19th Century doctors didn't exercise much authority in the US 2. In 17th and 18th Century inEngland the practice of medicine was divided between several different groups 3. At the top of the hierarchy was the small group of physicians who served the elite. These individuals went to Oxford and Cambridge. 4. At the time, there was a belief that manual labor did not befit high status people, so beneath these physicians were surgeons and below them were apothecaries. 5. Surgeons started out as barbers and were a guild of manual laborers. 6. Apothecaries sold drugs, prescribed and treated patients. 7. American colonies didn't immediately reproduce this pattern: the practice of healing was wide open in America. 8. Only in the late colonial period were professions formed 9. Doctors at this time were mostly self-taught. Their apprentices went to Europe for training and sought to create medical schools 10. The first medical school was at the University of Pennsylvania. 11. Doctors were only present in the biggest cities. 12. In the colonies and the early Republic, people most treated themselves. In the late 1700s to the early 1800s, manuals such as Buchan's "Domestic Medicine" were very popular. These manuals also had a political message: no one needs a doctor, because you can just use common sense. This was an appealing message to mostly rural America. 13. As we get into the 1800s, we find that there were lay healers outside of orthodox medicine who were connected to social movements and churches. ("The Social Transformation of American Medicine" by Paul Starr)

"Constitutional Coups and Judicial Review: How Transnational Institutions Can Strengthen Peak Courts at Times of Crisis" by Kim Lane Scheppele

1. How judicial review might operate during a constitutional coup by noting that courts could fail to counter the constitutional coup in two ways: 1) they could use flatfooted positivism to uphold all formally valid laws as constitutionally acceptable, surviving in practice but not in principle, or 2) they could fight and die, surviving in principle but not in practice 2. Consideration of the Hungarian case has given us a third option to consider: 3) peak courts can enlist the support of transnational institutions to leverage domestic courts' influence over their coup-making governments with the hope that the pressure from outside will keep the peak court and democratic constitutionalism alive and well

Institutions as rules of the game imposed by the powerful

1. Idea: powerful set the rules of the game 2. Problem: not always the case and powerful don't always act rationally.

Unconscionability

1. If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it 2. A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown 3. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining 4. Radin says using unconscionability to fight boilerplate is a wildcard (Radin)

Monogamy and group selection

1. If polygamy makes sense from the standpoint of powerful, selfish males (and their selfish genes), how, on an evolutionary account, would human societies come to embrace monogamy? 2. Evolutionary theorists now refer to "group selection" and associate it with "social or cultural evolution," or what the rest of us think of as progress toward more egalitarian and democratic forms of rule. 3. Monogamy is associated with more cooperative and less conflictual social relations, and more cooperative societies prevail over the hierarchical societies associated with polygamy, domination and control. 4. This leads to the second general idea that Henrich advanced concerning the importance of cultural systems and social norms in shaping behavior. 5. Evolved mating strategies influence human mating patterns, humans also acquire and enforce (formally and informally) culturally-transmitted social norms that motivate and regulate social behaviour. Marriage systems represent collections of these social norms, which include rules about the number and arrangement of partners. These marriage norms do not entirely replace or subvert mating psychology, but they can strongly influence behavioural patterns, both because compliance with these norms is intrinsically rewarding and because third parties are willing to punish norm violators. 6. The upshot is that monogamy is favored by group or social selection, and those societies that adopt monogamy as a social system tend to prosper as a result. ("The Future of Marriage" by Stephen Macedo)

Labor markets as institutions

1. Important differentiating factor: free or slave labor? 2. What are rules governing labor? Are unions or guilds? Is there contracting? 3. Does the state play a role? What happens in cases of accidents? 4. Labor market institutions distinguish different economies.

The Development of the Telegraph in Europe

1. In Europe, the telegraph and telephone were developed by the state. 2. Because of the path taken by the telegraph, the telephone followed that.

Joseph Schumpeter on growth through entrepreneurial innovation, "creative destruction"

1. In "Capitalism, Socialism and Democracy" Schumpeter presents influential set of ideas. 2. The importance of entrepreneurs. For Schumpeter, what was important was radically new products and technologies that upset old order and forces economy to go through creative destructive, which involves the loss of jobs and businesses going bankrupt. 3. Creative destruction, as Schumpeter put it, was "process of industrial mutation that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one." 4. Creative destruction is not an easy process, but this wrenching process brings growth. 5. In some ways, Schumpeter like Marx. Both see economy as a dynamic system. Whereas Marx is pessimistic, Schumpeter is very optimistic.

Patenting practices: Statute of Monopolies (1624)

1. In 1624 Parliament said patents were only for new inventions. 2. This limited the sphere of patents 3. In addition, the length and security of patents were left to political authorities. 4. A patent was seen as a royal privilege that could be revoked. 5. To make matters worse, it was costly to get a patent from the government. 6. By the 18th Century, English courts were suspicious of patents. 7. Only after litigation were patents valuable, which meant that they were inaccessible to the non-elite.

Provision of public goods (infrastructure, knowledge)

1. In 1819 New York State undertook the construction of the Erie Canal 2. This is the reason New York City was the nation's biggest city 3. Then states got into the railroad building business e.g. Pennsylvania created the Penn Railroad, the B and O railroad 4. There was a lot of government activity happening at the state level, not the federal level 5. Same is true of communications with the Post Office

The Development of the Telegraph in the US

1. In 1840s Samuel Morse wanted to sell his invention to the US government to be part of the Post Office. 2. In 1843 The federal government built a demonstration telegraph line between Washington and Baltimore. In election that year, Polk favored leaving the telegraph to the private sector. Because Polk, not Clay, won, it was left to the market. 3. After Western Union established its monopoly in telegraphy, there developed the first bilateral monopoly in the United States--a monopoly telegraph in close partnership with a monopoly news service, the Associated Press. Western Union would only carry AP stories. Together, these corporations defeated Grant's effort to nationalize the telegraph. 4. And what true for the telegraph and, later, telephone, was true for broadcasting with oligopoly being the dominant model (e.g. ABC, NBC, CBS).

Collective bargaining between physicians' associations and sickness funds

1. In 1903, a small group of physicians founded the Leipziger Verband (LV), the Union of German Physicians for the Defense of their Economic Interests. 2. The LV demanded money instead of professional honor. 3. In order to accomplish the organization's targets, the LV used trade union tactics: boycotts, strikes, and the provision of support services for its members. 4. When sickness funds refused to grant conditions demanded by physicians, or in their view treated physicians unfairly, the LV organized a collective strike. 5. If necessary, the LV also organized boycotts to prevent sickness funds from bringing in strikebreaking physicians from outside. Moreover, sickness funds were "blacklisted" in medical newspapers 6. In the beginning, critics within the profession demanded an abolishment of what they considered to be the unethical behavior of the LV. 7. They considered themselves to be helpers and healers—not members of organized labor. 8. However, soon this criticism all but disappeared. The trade union tactics of the LV were immensely successful. Until 1913 the LV engaged in about 1,700 conflicts, with a success rate of more than 95 percent. Accordingly, membership of the LV soared—from 6 percent of all physicians in July 1903 to 75 percent in 1913. 9. Physicians were basically successful in achieving better job security, improved working conditions, and higher fees. 10. In 1913 the LV terminated all contracts in Germany and was provoking a nationwide strike. Only after a successful governmental intervention did the LV and sickness fund organizations reach an agreement. The so-called Berlin Agreement significantly changed the relationship between physicians and sickness funds. 11. The Berlin Agreement was effective until 1923. Both sides terminated the agreement due to conflicts about the level of physicians' fees. Again, strikes and boycotts ensued. Physicians and sickness funds were unable to reach another agreement. As a consequence, the role of government changed from mediator to regulator. Government issued a series of emergency orders in 1923, 1930, and 1931. The emergency orders further consolidated the bargaining power of physicians ("The Social Transformation of American Medicine: A Comparative View from Germany" by Stefan Gress, Stefan Gildemeister, and Jurgen Wasem)

Competing online networks

1. In 1970s/1980s number of proprietary projects like American Online started 2. In early days, AOL would only allow you to send e-mail to other AOL users. 3. AOL and Prodigy wanted to sell products to their customers 4. In 1990s, Congress opened the internet to private companies

Why the Internet won

1. In 1988 Gore thought internet would be information superhighway 2. Net had tremendous advantages over walled-in systems of AOL and Prodigy 3. Crucial insight from Johnathan Zittrain: one reason for extraordinary rate of innovation has to do with structures that encourage innovation

History of Marriage Equality

1. In 2006 everyone in marriage equality movement was saying they were on the defensive 2. They essentially presented themselves as reacting to the ascendant right wing 3. In 2014, we can look back on an amazing transformation of public opinion and political values 4. This means Hartog's piece is really out-of-date

The Dutch Republic and the transnational public sphere

1. In Continental Europe, a process different than that occurring in England took place. 2. Europe was fragmented into different states. 3. The Netherlands was a highly commercial area with a weak state. 4. These two factors allowed it to become the center of transnational publishing, partially in French. 5. Modern journalism developed in the Netherlands. 6. This journalism was particularly focused on international events. 7. The New York Times of its day was published in Leiden.

Licensing and other mechanisms of control of print

1. In England, there was a system of licensing. Printing was developed in Germany in 1450. There were worries that it would undermine the government. Nevertheless, there was the antagonistic expansion of media. That is, when one side adopts one technology, its opponents have no choice but to follow suit. Governments used the system of licensing to control communications. England gave the Printer's Guild a monopoly. This system broke down after the Glorious Revolution. In 1695, Whigs and Tories couldn't agree on what should be censored. 2. When this licensing law was repealed, there was an explosion of media that coincided with the fragmentation of the elites.

Calculus versus culture: logic of instrumentality versus logic of appropriateness

1. Instead of seeing people as asking what's in their interest, sociologists see people as asking what's appropriate. 2. Economists look at people as rational calculating maximizers, whereas sociologists focus on the role of culture

Countervailing Power in German Healthcare

1. In Germany, there is countervailing power to bargain with doctors 2. The government sets constraints and negotiates how much fee levels can increase with expenditure increases 3. This is a different institutional framework than is found in the US 4. In the US, there is no such negotiating process 5. The AMA influences Medicare rates, but there is no overall rate setting 6. One primary reason for higher costs in the US is lack of transparency about prices 7. People get charged different prices, based on their insurer 8. This peculiar price system reflects history 9. Why didn't tax-financed health insurance develop in the US?

"Man and Wife in America: a History": The Backstory

1. In a historic opinion on November 18, 2003, GLAD won a ruling from the Massachusetts Supreme Judicial Court that gay and lesbian couples can no longer be excluded from civil marriage rights in Massachusetts. 2. Massachusetts the first state to create stable same-sex marriage 3. Book written after this decision 4. Hartog argues in "What Gay Marriage Teaches About the History of Marriage" that history of marriage naturally leads to same-sex marriage

Competitive versus institutional isomorphism

1. In face of uncertainty, organizations imitate each other 2. This is a very important line of thinking, which is typical of cognitive sciences

From subjects to citizens

1. In monarchical/feudal societies chain ran from king to aristocracy to peasants to the wives of peasants etc. 2. This hierarchy meant that only great men of the realm had a direct relationship with the state, as ordinary people just owed the state obedience 3. The French and American Revolutions began the process of overturning this hierarchy: the eventual overthrow of this system resulted in all people enjoying a direct relationship with the state. That is to say, these revolutions redefined citizenship 4. Citizenship, notes Brubaker, has almost become universal 5. Citizenship most basically linked to nation

Why health care as an ideological flashpoint?

1. In no other rich democracy is the issue of universal healthcare so toxic, so partisan, so polarized. 2. The ideological warfare over health care in American politics has its antecedents in the battles over health insurance in the first half of the twentieth century. It was in those years that the United States diverged from the more common path in western democracies, failing to establish a general system for financing health care. And when America adopted critical tax and health-financing policies in the two decades after World War II, it ensnared itself in a health policy trap, devising an increasingly costly and complicated system that has satisfied enough of the public and so enriched the health-care industry as to make change extraordinarily difficult. ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

Bipolar structure of traditional litigation

1. In our received tradition, the lawsuit is a vehicle for settling disputes between private parties about private rights 2. One of the defining features of this conception of civil adjudication is that the lawsuit is bipolar 3. Litigation is organized as a contest between two individuals or at least two unitary interests,diametrically opposed, to be decided on a winner-takes-all basis (Chayes)

The renewal of legitimate complexity and rise of professionalism in the Progressive Era

1. In the 1870s and 1880s the licensing laws were reinstated and decade by decade, the requirements increased 2. Medical schools started out as 2-3 months in one year, then 2-3 months in the next year 3. This pattern is evident in other professions as well 4. By the late 19th Century, partly due to the advances in science and technology, there was increasing professionalization 5. Politics changed and there was increasing respect for science, authority, and management 6. The medical profession was extremely successful in getting back what it had lost in terms of licensing and also in winning better enforcement of the new licensing laws. 7. At this time, the quacks were sectarian healers 8. What had changed was that science and technology had impacted people's understanding of the world 9. In short, common sense no longer made sense 10. Science was doing the impossible 11. There were particular advances in medicine in the late 19th Century e.g. anesthesia, antiseptic surgery 12. These advances gave the medical profession more authority 13. Still medicine was hopeless in the face of disease 14. Nevertheless, there was enough of a basis for these claims to authority to be accepted 15. Plus, the medical profession was able to shape other institutions. 16. Doctors could have become subordinate to hospitals in the Progressive Era. 17. Physicians used their gatekeeper position to come in and order everyone around in a hospital. 18. Hospitals became workshops for doctors. 19. The US did not follow the rest of the world in dividing up doctors into hospitalists and general practicioners 20. Doctors also could've become subordinate to state public health departments 21. Doctors wanted the government out of healthcare ("The Social Transformation of American Medicine" by Paul Starr)

Corporate Philanthropy and The Present

1. In the 1970s, politically conservative organizations come about. 2. In the 1990s, philanthropy was revolutionized by venture philanthropy. VC has role in management of enterprise and certain benchmarks have to be met. These principles were applied to philanthropy. There was a focus on a short time horizon and measurable effects. 3. This is very different from the "learned" institutions with longer time horizons. 4. Current phase: increasing inequality. There are 1700 billionaires in the US and almost every one of them has set up a foundation. 5. The law says every foundation must spend 5% of its endowment on investments. There is a large number of very large foundations. They spend big money on big policy. 6. Gates Foundation, for instance, has $70 billion. Gates Foundation spends more on public health than the WHO. 7. Foundations went from being a way for small number of wealthy to do good to being a device for large number of wealthy to do good. 8. These megafoundations have living donors e.g. Bill and Melinda Gates are trustees of their foundation. 9. This means that there are huge concentrations of wealth and power.

Public investment in applied research - the case of agriculture

1. In the 19th Century, the Department of Agriculture financed scientific research. 2. It also had extension stations at county level to teach farmers how to use new research. 3. This was a big return on this investment.

Lessig's four types of constraints

1. Law: e.g. if SCOTUS upholds something, the law affects norms. 2. Markets: e.g. Stamp Act raised price of newspapers in Britain and its colonies; state subsidies to newspapers in US to the point that there were penny papers, which achieved huge circulation, and dime novels, and 10/20/30 cent theater shows 3. Norms 4. Architecture

History of Marriage

1. In the 19th Century: A) consent was needed to enter marriage B) Divorce was seen as punishment. C) Coverture. 2. Consent was needed to enter marriage: Tocqueville finds it shocking how free single women are in the US. Marriage often only free act in women's lives at this time. Though there were nonnegotiable terms of marriage, negotiations did occur in private. These negotiations, however, were not honored in court. 3. Divorce: Divorce existed in some states, but not others. In New York one could only divorce for adultery. By 1800s, various states had become divorce havens, because they gave divorce easily. Indiana was the first of the divorce havens. There were novels written about these developments. The development of divorce havens tracks the development of railroads. For all but a few radicals, divorce was seen as a punishment for bad behavior. Until the 1950s, "you were divorced," not "you divorced him." Rules even existed in New York to forbid the guilty party from marrying. To believe in voluntary divorce was to believe in "free love," which was seen as radical and beyond civilized society. Children were also crucial to respectability in society, as "proper" sex only took place in marriage. In that time, no sane person wanted to live alone. The labor of women was needed by men and the labor of men was needed by women, who were excluded from the most labor markets. Also needed the labor that children provided, particularly on the farm. 4. Coverture: By marriage, a wife's identity is covered by her husband's identity. Feminists said woman is like a slave. Though false, this analogy was politically powerful. A husband had rights over his wife. These rights are listed: A) Husband had exclusive sexual access to his wife, B) If wife slept with another man, seducer was liable and could be sued in strict liability, C) Marital rape. As late as the 1970s, rape was defined as "forcible sexual contact with a woman who's not your wife." D) Husband had governance rights over his wife. This meant he could beat his wife, but he had to be a good governor, E) Foreign policy also attached to coverture. Husband representd the political entity that is the household to the world. The husband stood in for family to creditors etc. F) These understandings of marriage became constitutive of both male and female identity.

Parallel patterns in British North America

1. In the the American colonies there was a parallel process that involved de facto freedom. 2. Printers bring political fragmentation and economic competition to the colonies. This is evident in Boston with the debate over smallpox inoculation.

The waning of professional sovereignty in the late 20th century

1. In the twentieth century, medicine has been the heroic exception that sustained the waning tradition of independent professionalism. Physicians not only escaped from corporate and bureaucratic control in their own practices; they channeled the development of hospitals, health insurance, and other medical institutions into forms that did not intrude upon their autonomy. But the exception may now be brought into line with the governing rule 2. Unless there is a radical turnabout in economic conditions and American politics, the last decades of the twentieth century are likely to be a time of diminishing resources and autonomy for many physicians, voluntary hospitals, and medical schools. Two immediate circumstances cast a shadow over their future: the rapidly increasing supply of physicians and the continued search by government and employers for control over the growth of medical expenditures. These developments promise to create severe strains throughout the medical system. They may prepare the way, moreover, for the acceleration of a third development, the rise of corporate enterprise in health services, which is already having a profound impact on the ethos and politics of medical care as well as its institutions. ("The Social Transformation of American Medicine" by Paul Starr)

Extractive versus inclusive institutions

1. Inclusive economic institutions, such as those in South Korea or in the United States, are those that allow and encourage participation by the great mass of people in economic activities that make best use of their talents and skills and that enable individuals to make the choices they wish. To be inclusive, economic institutions must feature secure private property, an unbiased system of law, and a provision of public services that provides a level playing in which people can exchange and contract: it must also permit the entry of new businesses and allow people to choose their careers. Inclusive economic institutions foster economic activity, productivity growth, and economic prosperity. Inclusive political institutions, vesting power broadly, would tend to uproot economic institutions that expropriate the resources of the many, erect entry barrier, and suppress the functioning of the markets so that only a few benefit. 2. Extractive political institutions concentrate power in the hands of a narrow elite and place few constraints on the exercise of this power. Economic institutions are often structured by the elite to extract resources from the rest of society. Extractive economic institutions thus naturally accompany extractive political institutions. In fact, they must inherently depend on extractive political institutions for their survival. (Acemoglu and Robinson)

Veto players

1. Increasing the number of veto players implied that a larger set of constituencies could protect themselves against political assault, thus markedly reducing the circumstances under which opportunistic behavior by the government could take place 2. Veto players: collective or individual actors whose agreement is necessary to change the status quo (Weingast and North)

Ahe architecture of minimally invasive reform: the Massachusetts model

1. Individual mandate: a requirement for all adults to purchase at least a minimum, low-cost, high-deductible policy 2. Insurance reform: requirements for insurers to issue policies and renew them for all legal applicants, coverage of preexisting conditions 3. Insurance exchanges (marketplaces): aim is to reduce costs and improve coverage for people individually or through small group. To discourage insurers from cherry-picking the health, the law requires them to pay into a risk-adjustment fund if they enroll a relatively, healthy, low-cost population and vice versa 4. Medicaid expansion: federal government pays for almost all of the costs of expanded Medicaid eligibility and all of the subsidies for private insurance in the exchanges. In short, the Affordable Care tries to correct the historic regional inequalities in health care by providing money rules. ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

Generative technologies versus information appliances (Jonathan Zittrain)

1. Information appliance: Device hardwired for a particular purpose. E.g. old word processor, could only use it to write. Programs controlled by manufacturer. 2. Generative technology: a platform that invites people to tinker with it. E.g. PC was open to new programs, invited creativity, no permission needed to add programs. 3. Net was another generative open technology. 4. There was spectacular innovation, because of the convergence of these two technologies.

Opening of the Public Sphere

1. Infrastructural barriers; norms of secrecy and privilege 2. Postal networks, newspapers, the creation of a self-aware public 3. Licensing and other mechanisms of control of print 4. England's opening: political fragmentation, economic competition. Continuing limits: seditious libel; "taxes on knowledge" 5. Evading censorship in France: extraterritorial printing, functional ambiguity 6. The Dutch Republic and the transnational public sphere 7. Parallel patterns in British North America

State of Family Law Today

1. Insignificant differences betweeen jurisdictions for heterosexuals 2. Child custody rules depend on judge you go to

"Institutions, Institutional Change, and Economic Performance" by Douglass North

1. Institutions are the myriad of humanly devised constraints on behavior 2. Institutions include both formal and informal constraints 3. Both types of institutions reduce uncertainty, though lower uncertainty doesn't translate into higher growth 4. Conviction that economic relationships have to be understood within the institutional framework in which they take place. 5. The present and the future are connected by the continuity of institutions and there is path dependence 6. In Ch. 9, argues that 1) institutional constraints shape organizations and their objectives and that skills and 2) knowledge acquired by organization in pursuit of its objectives in turn influence evolution and use of stock of knowledge 7. North wrong in arguing that institutions only constrain human interactions, as institutions also empower people 8. North asks what accounts for big differences in success/failure of nations? 9. North believes that efficient institutions drive out inefficient institutions

Tensions within rational-choice theory

1. Institutions as efficient solutions to collective-action problems 2. Institutions as rules of the game imposed by the powerful

Christensen and Innovation

1. Institutions need to change to take advantage of innovation. 2. Christensen differentiates between sustaining innovations, which extend companies' existing products and markets and requires no fundamental change, and disruptive innovations, for which it is difficult for organizations to adopt to because they undermine or destroy their existing business 3. Outsiders are often better equipped to make use of disruptive innovations.

Transformed state policies and economic growth

1. Intellectual property law: copyright and patent 2. Public education 3. Provision of public goods (infrastructure, knowledge): public investment in applied research - the case of agriculture 4. The end of laissez-faire

The strength of early patent protection in the U.S.

1. Introduction of the patent examination system, 1836: examination system was to determine whether invention was useful etc. 2. Low costs of patenting in U.S. compared to Britain, France: made US hospitable to innovation. US made even more hospitable by the fact that inventors were required to disclose information about their inventions in plain English. This feature of the patent system also encouraged innovation. This information was in turn widely published 3. Openness to non-elite inventors:

"Philanthropy in America" by Olivier Zunz

1. Introduction: Philanthropy, despite some openly conservative manifestations, should be understood as part of the American progressive tradition. Philanthropic institutions have contributed enormously to democratic society without ever achieving an uncontested place in the political system. Americans of all classes have invested enormous energy in philanthropy, and the resulting network of foundations and community institutions have enlarged American democracy. 2. Ch. 1: The much-heralded shift from charity to philanthropy could not have happened without a partnership between the rich, who had made their careers as organizational wizards, and the various progressive elites of the academic world, local governments, the judiciary, and emerging professional associations. Together, these interests figured out how to put the new money to work for science, education and public health. They recognized that heretofore-unavailable private fortunes constituted an important public resource for social progress. From the East Coast and Midwestern centers of capitalist development, the alliance spread to the South. The Southern philanthropic drive would eventually set the stage for an even larger reform effort across national boundaries. Post-Reconstruction philanthropy in the U.S. South would serve as a pattern for lifting parts of Latin America, Asia, and Africa out of disease, poverty, and ignorance, and bringing relief to war-torn Europe. Philanthropy's goals were universal: its practice, however, was often shaped by opportunities and regressive ideologies. In the American South, philanthropists had to become complicit with the structures of inequality in order to achieve some of their goals. But the persistent application of large financial resources for the good of mankind with tangible results like the American research university and modern medicine gave the philanthropic movement a moral integrity that even its fiercest detractors have never been able to deny and from which many have benefited. 3. Ch. 2: Progressives' promotion of collective responsibility set American mass philanthropy on its course. The leaders of the new mass philanthropy - promoters of the public health movement, heads of federated community institutions, social workers, and reformers - discovered early in the nineteenth century large subterranean pools of benevolence upon which they drew. The difficult part was to tap those pools. They spent much energy on finding ways to accomplish this, and their efforts were rewarded, though what they marketed was not a consumer good but a cause in need.

Invention versus Innovation

1. Invention: a new, useful process, machine, improvement, etc., that did not exist previously and that is recognized as the product of some unique intuition or genius, as distinguished from ordinary mechanical skill or craftsmanship. Invention is basic and applied research. 2. Innovation: the act or process of introducing new ideas, devices, or methods. Innovation is the adoption and diffusion of a product.

A Brief History of Newspapers

1. Jefferson's party organized by building a network of newspapers. 2. Used the Alien and Sedition Acts to imprison newspaper editors, who created a model for insurgency. 3. That is to say, newspapers and politics were closed tied, so close in fact that newspapers often had offices in the same buildings as political parties in towns. 4. Not until the professionalization of journalism in the 20th Century did newspapers become objective. 5. In the late 19th Century newspapers started to separate themselves from politics. 6. The key takeaway: there are critical moment when decisions get made and have big consequences for society

Joseph Henrich's evolutionary theory of polygyny

1. Joseph Henrich, a leading scholar of evolutionary psychology and anthropology, presented an account of the comparative historical and anthropological records concerning the effects of polygamous as compared with monogamous marital regimes. His research had the biggest impact. The record suggests that the effects of polygyny would be malign anywhere it became a substantial presence, and it further suggests that plural marriage has a strong tendency to take the form of polygamy. It suggests, finally, that significant social and personal harm would be generated if polygamy were to become a significant presence in a modern society. 2. Historical, anthropological evidence suggests that in practice, polygamy increases the competition among men for women and that tends to both reduce the supply of unmarried women and to lower women's age at marriage. Marriages tend to be arranged by fathers and families pressure young girls into marrying older men ("The Future of Marriage" by Stephen Macedo)

The jury as a democratic institution

1. Juries used to have raw democratic power over law 2. Jury served freedom not just by getting facts right but also by getting people right: local citizens controlled local administration of justice (Abramson)

"Jury of the vicinage"

1. Jury of the vicinage means a jury from the county where the crime occurred or where the court is held 2. Here vicinage refers to the geographical area from which the jury is summoned 3. The right to be tried by a jury of the vicinage is an essential feature of jury trial (Abramson)

Code as a basis of control

1. Left to itself, cyberspace will become a perfect tool of control. 2. Control. Not necessarily control by government, and not necessarily control to some evil, fascist end. 3. But the argument of Lessig's book is that the invisible hand of cyberspace is building an architecture that is quite the opposite of its architecture at its birth. 4. This invisible hand, pushed by government and by commerce, is constructing an architecture that will perfect control and make highly efficient regulation possible ("Code, Version 2.0" by Lawrence Lessig)

Legal systems vs. legal traditions

1. Legal system is an operating set of legal institutions, procedures and rules 2. Legal tradition is set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in society and polity, about the proper organization and operation of a legal system, and about the way law is or should be made: legal tradition relates legal system to culture of which it is a partial expression (Merryman and Pérez-Perdomo)

Lessig and Architecture

1. Lessig's book is about architecture. 2. The design of the postal system is architecture. 3. Americans came to expect everyone would get postal service.

Liability and the limited-liability corporation

1. Liability is legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). 2. Without liability there'd be more recklessness and revenge. 3. Limited-liability corporation: A type of business organization that offers the limited liability of a corporation and the tax benefits of a partnership. LLC limits liability of shareholders, who aren't liable for corporate malfeasance. 4. In the 19th Century, US enacted corporate LLC laws. 5. LLC laws do have downside. They have repopulated the economy with different organization than what predominated before. Firms became huge, even multinational corporations. And this in turn triggered governance changes.

What were advantages of corporate form?

1. Limited liability aspect incentivizes investment. 2. Corporations don't have fixed time horizons as individual proprietors do. 3. The form also concentrated managerial authority through board and separation of ownership and management.

"Man and Wife in America: a History" by Hendrik Hartog

1. Marriage law has been shaped since the late eighteenth century by ordinary men and women as they sought to enjoy the benefits and protections of marriage as well as to escape its constraints. 2. This argument is posed in opposition to the view that the law of marriage has been determined by the internal legal logic of those in power, namely upper- and middle-class men who control the legal system. 3. Hartog's thesis suggests that gay marriage will be decided, not by the religious right or by constitutional amendment, but by people's attempt to escape from the institution of marriage. 4. In his introduction, Hartog argues that the best way to understand the evolution of marriage law is to examine separation. In attempting to exit marriages, women and men forced the courts to grapple with issues of legal standing of marital partners and to face the increasing demand for ending marriages through divorce. 5. In placing these issues in context, Hartog emphasizes the significance of unique American legal, social, and cultural practices, the most basic being the fact that marriage law is determined by state rather than federal law.

Marriage Jurisdictions

1. Marriage traditionally understood as matter of state law 2. Not until the 1970s and 1980s does marriage become federal issue. 3. When Congress debated the 14th Amendment, Radical Republicans said they didn't want to get involved with family on marital level.

Constitutive choice; constitutive moments

1. Mechanisms of entrenchment 2. Paths of institutional development 3. Institutions as a source of competitive advantage 4. Architecture choice as politics by other means

Two meanings of "media" in The Creation of the Media

1. Media: as channels of communication 2. "The media": institutions that dominate those channels.

"Beware Big Donors:America's Education Activism" by Stanley Katz

1. Megafoundations used to be quiet giants. Now they're noisy activists, shaping policy and politics. 2. In the past, our large philanthropic foundations, Rockefeller and Carnegie particularly, were what I have earlier characterized as "learned"--much of their grant-making was devoted to trying to understand the underlying causes of the problems that concerned their boards, and the means they used toward that end was investment in research. They had a long-term strategy, hoping to find deep solutions to big problems, and they tended to support investigators who had strong research programs of their own design. Think of the Rockefeller investments in public health, both abroad and in the American South, and the large and longterm Carnegie financing of Gunnar Myrdal's study An American Dilemma: The Negro Problem and American Democracy. 3. Philanthropy has increasingly been reconceptualized as something akin to venture capital investing. Accordingly, grantees are required to specify measurable outcomes that can be achieved over the short term. Foundations have tended to reduce the number of program areas in which they give funds, to be more precise and detailed in their program objectives, to restrict project time frames, to establish benchmarks for continued financing, to evaluate grantees in a more precise manner, and to form partnerships with grantees in managing their projects. 4. What has been particularly interesting to note has been the commitment of the newer foundations to overt policy advocacy, which they see as a logical outcome of their strategic stance. It is not clear to me how aware they are of the historic reluctance of the learned foundations to acknowledge that they played a public-policy role. That hesitancy grew out of the intense public opposition to the potential political influence of philanthropic organizations that had been founded by the robber barons. The early foundations mostly danced around public policy and denied that they sought policy influence, and that remained characteristic until the mid-20th century, when the overtly policy-oriented behavior of the Ford Foundation, under the leadership of McGeorge Bundy, evoked the congressional backlash of the Tax Reform Act of 1969. After that episode, the major foundations were once again ostentatiously careful about taking strong positions on matters of political contention. 5. All that has changed in the 21st century. The new strategic foundations behave as though they are entitled to make public policy, and they are not shy about it. 6. How far we have traveled from the fears of the first foundations that they would be perceived as antiegalitarian and threatening to the democratic process. For years Rockefeller and Carnegie pussyfooted around financing economic and social efforts that might be perceived as politically sensitive. Ford got into trouble with Congress when it immersed itself in school reform in New York City and had to back down. But while Gates is often seen as antiunion and pro-charter school--politically contestable positions--it shows no signs of hesitating to push its overtly political agenda. Gates and Lumina are clearly untroubled to be, and to be seen as, players in education policy.

"General Economic History" by Max Weber

1. Most general presupposition for the existence of this present day capitalism is that of rational capital accounting as the norm for all large industrial undertakings, which are concerned with the provision of everyday wants. Such accounting involves, again, first, the appropriation of all physical means of production- land, apparatus, machinery, tools etc. as disposable property of autonomous private industrial enterprises. 2. In the second place, it involves the freedom of the market, that is, the absence of irrational limitations on trading in the market. Such limitations might be of a class character, if a certain mode of life were prescribed for a certain class. 3. Third, capitalistic accounting presupposes rational technology, that is, one reduced to calculation to the largest possible degree, which implies mechanization. This applies to both production and commerce, the outlays for preparing as well as moving goods. 4. The fourth characteristic is that of calculable law. The capitalistic form of industrial organization, if it is to operate rationally, must be able to depend upon calculable adjudication and administration. The royal "cheap justice" with its remissions by royal grace introduced continual disturbances into the calculations of economic life. The proposition that the Bank of England was only suited to a republic, not to a monarchy, was related in this way to the conditions of the time. 5. The fifth condition is free labor. Persons must be present who are not only legally in the position, but are also economically compelled, to sell their labor on the market without restriction. It is in contradiction to the essence of capitalism, and the development of capitalism is impossible, if such a propertyless stratum is absent. 6. The sixth and final condition is the commercialization of economic life. By this we mean the general use of commercial instruments to represent share rights in enterprise, and also in property ownership. 7. To sum up, it must be possible to conduct the provision of needs exclusively on the basis of market opportunities and the calculation of net income.

Legal specialization by field and/or party

1. RPs develop expertise and have ready access to specialists 2. They enjoy economies of scale and have low start-up costs for any case 3. Not only would the RP get more talent to begin with, but he would on the whole get greater continuity, better record-keeping, more anticipatory or preventive work, more experience and specialized skill in pertinent areas, and more control over counsel 4. Hard for those who represent OSs to have good business (Galanter)

Mobility and Marriage

1. Mysterious trilogy of the 1980s: better access to abortion, women increasingly employed, and rising divorce rate 2. Loving v. Virginia: In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years). In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. 3. How you interpret Loving tells a lot about how you interpret same-sex marriage. 4. In addition, new default rules better than letting people contract.

"The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America" by John Merryman and Rogelio Pérez-Perdomo

1. Nationalism and positivism gave rise to nation-state and its attendant legal structure of external and internal sovereignty so integral to civil law structure 2. In England, where common law came about, common law embraced as it was a positive force in the development of that nation, so no need for codification 3. Also because old law not repealed in England, precedent remained importnat

The equal footing principle

1. New states on same footing as old states 2. New states thus were not colonies or dependencies 3. This was the only practical plan for the US

Similarities and differences between North and DiMaggio & Powell

1. North is concerned with explaining disparities in economic performance, whereas DiMaggio and Powell try to explain similarities 2. Nevertheless, both reject market as the explanator 3. Uncertainty plays big role in both framework of DiMaggio and Powell and North

Courts and the Defense of Rights

1. Not clear in Constitution that courts providers of right 2. In Founding period, localities and, after them, Congress would defend rights 3. In 18th/19th Century (Lochner Era) no strong national government that conflicted with individual rights. Ideas of freedom of contract, right to work as you please and no right for government to enter workplace, prevailed. 5th Amendment was also interpreted as saying that everyone has a substantive right to be unregulated. 4. In 20th Century (New Deal Era), idea of rights started to evolve, as government expanded. In 20th Century, courts entered into arena as protector of rights, as government intervention grew. FDR starts to regulate the economy, which SCOTUS rejects until Laughlin Steel (1937). SCOTUs accepts New Deal and, when it comes to the economy, will defer to the President and Congress. There's a low bar set: laws only need to be "rational," i.e. passed by Congress, act of President or of state government, under the Commerce Clause. 5. Carolene Products (1938) Footnote 4. In 1937 SCOTUS stops protecting economic rights of individuals. In footnote 4 SCOTUS lays out situations where rights do matter, for which there is higher standard "heightened scrutiny." A) 1st 10 Amendments B) Restriction of the political process, C) Discrete and insular minorities. Discrete: category that can't change. Insular: separation from the majority. SCOTUS says law needs to be "compelling," if it involves A), B) or C). Almost nothing is compelling.

DARPA and the origins of the Internet

1. Nothing inherent about electronic communications networks. 2. Internet grew out of DARPA 3. DARPA wanted to connect computers at defense labs. 4. Led to creation of extensively robust networks 5. Intelligence, for security reasons, was put at the ends, not center, of the network: that way network will be dumb in case of atomic attack. 6. This is the basis of the net as we know it today

"Tangible" versus "rule" components of legal cases

1. OSs are usually smaller units and the stakes represented by the tangible outcome of the case may be high relative to total worth, as in the case of injury victim or the criminal accused 2. RPs can play for rules as well as immediate gains. First, it pays an RP to expend resources in influencing the making of the relevant rules by such methods as lobbying 3. RPs can also play for rules in litigation itself, whereas an OS is unlikely to 4. Because his stakes in the immediate outcome are high and because by definition OS is unconcerned with the outcome of similar litigation in the future, OS will have little interest in that element of the outcome which might influence the disposition of the decision-maker next time around 4. For the RP, on the other hand, anything that will favorably influence the outcomes of future cases is a worthwhile result (Galanter)

Universalism versus particularism

1. Objectivity precludes particularism 2. Acceptance or rejection not to depend on the personal or social attributes of their protagonist (Merton)

"The Future of Marriage" by Stephen Macedo

1. Older criticisms of polygamy in our public records and case law are marked by a decided moralism and superficiality: vehement rejection without much clarity. Nevertheless, 19th century discussions of polygamy in cases such as Reynolds also associate the practice with patriarchy, status hierarchies, and comparative social stagnation, while also observing that monogamy is more conducive to democracy. Those observations now seem correct. Normative monogamy best secures citizens' equal basic liberties, their equal status and standing, and their fair opportunities to pursue the good of family life. When it comes to polygamy, we need not rely on sheer moralism. Liberal and democratic justice support efforts to discourage polygamy. 2. Same sex marriage, unlike polygamy, fits very comfortably with marriage as it is increasingly understood and practiced in the West. Same sex marriage helps entrench the norm of gender equality -- equal freedom and opportunity -- in marriage. If same sex marriage occupies a place on a slippery slope, it is toward liberal and democratic equality in marriage and away from traditional gendered marriage.

The contemporary "double movement" of democracy

1. On the one hand, there has been increased democratization e.g. Latin America, Europe, but things don't look so secure in Russia. 2. On the other hand, there has been a removal of decisions from democratic deliberation. 3. This is another "double movement." Elites seem to be more comfortable with democratic regimes with limits. The same is true of foreign investors. These limits constrain populism.

Rational-choice institutionalism

1. Rational-choice institituionalists think that institutions are shaped by rational expectations. 2. Because transaction costs are high (see Coase 1937 "The Theory of the Firm"), people create firms 3. Williamson further developed this idea in the 1970s and 1980s: question of markets versus hierarchies: what governs the choice? Institutions act therefore as governance structures 2. Tensions within rational-choice theory

Equitable relief

1. One of the most striking procedural developments of 20th century was the increasing importance of equitable relief: the traditional maxim that money damages will be awarded only when no suitable form of specific relief can be devised was reversed by devices such as injunctions, specific performance etc. 2. Beyond these differences, the prospective character of the relief introduces large elements of contingency and prediction into the proceedings. Instead of a dispute retrospectively oriented toward the consequences of a closed set of events, the court has a controversy about future probabilities 3. N.b. equitable relief: court-ordered action that directs parties to do or not to do something; such remedies include injunctive relief and Specific Performance. Alternatively, a non-monetary remedy, such as an Injunction or specific performance, obtained when a legal remedy such as money damages cannot adequately redress the injury. (Chayes)

"The Origins of Judicial Activism in the Protection of Minorities" by Robert Cover

1. Only with respect to Blacks could so dramatic and far-reaching a change in the judiciary's role and in its relation to state government be understood as a "least intrusive alternative." For only with respect to Blacks was it truly impossible to see the events generating the cases that reached the courts as isolated instances of impropriety or as transitory hysteria. Against hysterical politics it is necessary to offer protection, make amends, award compensation, but not to remake the political structure itself. 2. Apartheid was not, however, hysteria. It was the governing system that pervaded half the country, and like any such system it was implicitly and explicitly supported by the Constitution. It is clear to me that when Stone wrote footnote four he intended to protect against transitory hysteria. It is not clear to me whether he knew he had also embarked on a program to rewrite the Constitution. The critical importance of "Brown v. Board of Education"' was that it removed any doubt about the Court's commitment to just such a program-whatever its implications. By 1964 Congress and the President had joined the battle against Apartheid. Judicial activism in support of the rights and interests of Blacks no longer would raise the special questions it once had. 3. Each constitutional generation organizes itself about paradigmatic events and texts. For my generation, it is clear that these events are Brown v. Board of Education and the civil rights movement and that the text is footnote four. For, whether or not the footnote is a wholly coherent theory, it captures the constitutional experience of the period from 1954 to 1964. And that experience, more than the logic of any theory, is the validating force in law. 4. Way in which international developments influence thought on minorities is tremendous. Also discusses change in meaning of term "minorities." First happens with international law, then US law. Plus, what was happening in Germany was causing concern about majority rule in US. Also judicial intervention is the least intrusive.

Subsidiarity and inequality

1. Organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority 2. Increases inequality

Originalism

1. Originalism: the belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it. 2. Constitutional pro-democratic justifications have crucial implications for constitutional interpretation as well as constitutional reform: if we understand the Constitution as a practical instrument for self-government, we should construe the Constitution's abstract language in a way that permits Americans to improve and implement their judgements about justice and public policy. The Constitution's purpose gives no reason to shackle the Constitution's ambiguous language to old conceptions of right and wrong that no longer seem defensible. (Eisgruber)

Public ordering, private ordering

1. Over time, the public domain has grown separate and distinct from the private domain 2. Government used to be extension of monarch's household and, even later on, officials used to profit from their governmental activities

Path dependence; critical junctures and constitutive moments

1. Path dependence: the outcome at any one time cannot be understood without reference to key decision points that led institutions to develop along certain lines 2. There are critical junctures in which relatively small forces tilt balance in one direction and in doing so, set a pattern that is locked in for a long time and are therefore reinforced 3. This may explain why institutions which prevail are not efficient 4. QWERTY keyboard originally made to stop typewriters key from jamming: now there's no need, but it's too tough to change the existing arrangement 5. Similarly, in late 1940s and 1950s, US Navy developed light-water nuclear reactor for submarines. When WWII ended and officials want to use nuclear power for civilian purposes, the man in charge of the US Navy's effort was put in charge of civilian design and selected light-water reactor instead of heavy-water or gas-graphite reactor. Once US made its choice, all other nations jumped on the bandwagon and chose the light-water design as well. This is a typical pattern of technological lock-in.

Historical institutionalism

1. Path dependence; critical junctures and constitutive moments 2. Sources of increasing returns (switching costs) 3. Lock in as an explanation for variations in economic performance (North)

Philanthropy's Beginnings

1. Philanthropy began in 1900 2. This was the first time there were huge sums of liquid wealth 3. Guys like Carnegie, Rockefeller Sr. had made vertically integrated industrial complexes 4. Their problem: how to get rid of all of their money? 5. They had more money than they could use 6. They knew it would corrupt their kids, if they gave it to them 7. Both Carnegie and Rockefeller Sr. were very charitable in Christian way in that they both sought to alleviate individual distress 8. Charity, however, wasn't sufficient to deal with large sums of money 9. Their fear was that they would be engulfed by their money 10. They wanted to apply their wealth not just to alleviate distress but also to do away with the underlying causes of social distress. This is the modern notion of charity. 11. Both had the same intuition. The problem: how could they do this?

"What Gay Marriage Teaches About the History of Marriage" Backstory

1. Piece is piece of historical advocacy 2. It is a historian's brief 3. Historian briefs came out of the anti-abortion movement. Conservatives asserted that abortion was always illegal. Feminists wrote briefs showing how complicated the history of abortion is. For instance, Madame Restelle would advertise about abortion in New York City papers in 1850s. 4. Same-sex marriage briefs do the same thing. They unsettle the stable understanding of marriage. Hartog emphasizes evolutionary changes. 5. These briefs and Hartog's brief is no exception suffer from the post hoc ergo hoc fallacy. 6. There's no law of evolution: past never is complete predictor of the future. 7. Briefs also suffer from the fact that it's easy to spin history either way 8. In 1980s queer theory assumed no LGBT person would want to be in a marriage. Marriage was perceived as oppressive by the queer community.

Cognitive dimension (maps of reality)

1. Recently there's been a shift toward emphasis on cognitive scheming 2. Objectification: the act of representing an abstraction as a physical thing 3. Naturalization: ideas and actions come to be seen as normal and "natural"

Polarization in the US

1. Polarization is an empirical observation 2. Conservatives are less present in the Democratic party, liberals less present in the Republican Party 3. The split can also be observed in public opinion 4. American political institutions have a lot of veto points. In a parliamentary system, there's no division between the legislative and executive branch. 5. In the US we often divided government 6. In addition, SCOTUS also strikes laws 7. Veto points means polarization can lock up the political system e.g. on immigration reform 8. In this regard, institutions have become a problem 9. The Constitution is not set up to deal with this problem 10. These institutions make dealing with polarization tough 11. Some immigration reform proposals would create second-class citizenship, which would be a new institution 12. In addition, health insurance exchanges are a new institution 13. Polarization has historical origins 14. American institutions are particularly susceptible to deadlock, because it's not as easily overcome as in a parliamentary system

Social consequences of polygyny

1. Polygamy creates a variety of problems for liberal democracy at two levels, both of which are distinct from the sheer moralistic disapproval that has characterized conservative opposition to gay and lesbian rights. First, at the individual level, traditional polygamy as a social system very often depends upon communal pressures to get young women into, and keep them in, polygamous relations; in too many cases, therefore, there is no real individual freedom. Indeed, significant evidence suggests that polygyny could not continue to exist in the absence of these pressures. Second, polygamy generates structural inequalities: high status males are systematically advantaged while women and lower-status males are denied equal opportunities. It also appears to be causally related to higher rates of violence in the home and in society. The empirical record-- historical and anthropological -- is bolstered by a sophisticated body of evolutionary theory. Evidence suggests that were traditional polygamy to re-emerge as a significant presence in society it would tend to have a variety of negative social consequences, and to undermine equal freedom 2. The constitution of the political community depends on the constitution of the family. The dependence is not only a matter of family law, but also the social norms that prevalent family structures tend to generate. Recognizing marriage as a relationship of two and only two persons - opposite sex or same sex - helps to secure for all persons a "fully adequate scheme of equal basic liberties" and the fair opportunity to pursue the great good of family life. In so doing, it helps to secure for all the equal status and standing associated with democracy. ("The Future of Marriage" by Stephen Macedo)

Professional sovereignty and medical care (explained)

1. Position of professional sovereignty was being eroded by the 1980s 2. "The Social Transformation of American Medicine" tells of the rise of the medical profession to its sovereign position and then the rise of corporate, bureaucratic healthcare

Asymmetry of information between physician and patient

1. Power, at the most rudimentary personal level, originates in dependence, and the power of the professions primarily originates in dependence upon their knowledge and competence. 2. In some cases, this dependence may be entirely subjective, but no matter: Psychological dependence is as real in its consequences as any other kind. 3. Indeed, what makes dependence on the professions so distinctive today is that their interpretations often govern our understanding of the world and our own experience. 4. To most of us, this power seems legitimate: When professionals claim to be authoritative about the nature of reality, whether it is the structure of the atom, the ego, or the universe, we generally defer to their judgment. ("The Social Transformation of American Medicine" by Paul Starr)

Law as a distinctive union of primary and secondary rules (H. L. A. Hart)

1. Primary (obligation-imposing) rules 2. Secondary (power-conferring) rules

Return of the market: privatization, deregulation, market models

1. Privatization: Rules vary on the designation of an organization as private or public. Privatization became a major theme of policy in the 1970s, 1980s, and 1990s. There are different types of privatization: A) Sale of government owned corporation to the private sector through mechanisms such as auctions, B) Liberalization i.e. national or regional authorities either sold or opened up a system to competition, C) Private contracting i.e. the government would contract out public sector work to the private sector and there was no sale of assets e.g. private prisons. In addition, some government agencies like the Post Office were turned into corporations. 2. Deregulation: This is a different form of privatization. Deregulation began under Carter and Nixon. In the 1960s and 1970s the left criticized how industries such as the trucking industry and the airline industry had captured their regulators. Ralph Nader even created a think-tank to investigate how much agencies were in the pocket of industries. Ted Kennedy and Carter supported this effort. It wasn't just price regulation, however, that was rolled back. Environmental, social, and health regulations were also rolled back. Think OSHA and affirmative action. 3. Market models: At the same time there were changes in the corporate world. There had been in court decisions and social norms expectations about corporations having an obligation to everyone. Notion rose in this time that corporations have a responsibility to shareholders, not employees. Thus Reagan kicked off the age by firing air traffic controllers in 1981. This anti-union sentiment hastened the decline of unions. In the late 20th century, liberals and conservatives became more interested in market models. The traditional social insurance model involved tax financing and public provision of insurance and the providers are private, as in Medicare. In the ACA, the government creates exchanges where private insurance is offered and low income people are given a subsidy so they can afford insurance. This represents use of the market. The basic idea involves institutional change. In the traditional insurance market, insurers could quote whatever price they wanted and asked for any information. Lots of people ended up uninsured because of this. The market in the past rewarded insurers who picked healthy people, so there was much less of an incentive for insurers to give value for money. The whole concept of the exchange is that insurance can't be denied to people with preexisting conditions. There is a system of risk adjustment. If an insurer enrolls sick people, the insurer will get paid by a fund maintained by insurers who enroll healthy people. In this way, premiums are redistributed. This is "managed competition." It requires the health insurance exchange to be responsible for enrollment. It is an attempt to use a market, but use it in a very regulated way. The same goes for cap-and-trade. Emissions are capped and companies trade them. A market is created, but it is constrained. This is the way liberals adopted market ideas. This is the "Third Way" approach.

Professional sovereignty and medical care in the United States

1. Professional sovereignty refers to the medical profession's dominance within the field of medicine and their autonomy. 2. Unlike the law and the clergy, the medical profession enjoys close bonds with modern science, and at least for most of the last century, scientific knowledge has held a privileged status in the hierarchy of belief 3. The therapeutic definition of the profession's role also encourages its acceptance: Its power is avowedly enlisted solely in the interests of health—a value of usually unambiguous importance to its clients and society. 4. On this basis, physicians exercise authority over patients, their fellow workers in health care, and even the public at large in matters within, and sometimes outside, their jurisdiction. 5. The profession has been able to turn its authority into social privilege, economic power, and political influence. 6. In the distribution of rewards from medicine, the medical profession, as the highest-paid occupation in our society, receives a radically disproportionate share. 7. Until recently, it has exercised dominant control over the markets and organizations in medicine that affect its interests. 8. And over the politics, policies, and programs that govern the system, the profession's interests have also tended to prevail. 9. At all these levels, from individual relations to the state, the pattern has been one of professional sovereignty ("The Social Transformation of American Medicine" by Paul Starr)

Property as a bundle of rights

1. Property: bundle of rights that come together under concept of property e.g. right to buy, sell, transform, develop, destroy etc. 2. This bundle is not fixed: law may redefine what is and what is not included. 3. Law may also define what property rights exist in e.g. when slavery existed, property rights in people. 4. Today law recognizes rights in previously unconceivable things e.g. genes, bandwidth. 5. Nature of what we have in property has changed over time. 6. Law has often reallocated property rights.

The public sphere

1. Public is to private as open is to closed, as when we speak of making something public. 2. In another sense, public is to private as the whole is to the part, as when we speak of public health or public interest, meaning the health or interest of the whole of the people as opposed to that of a class or individual. 3. The term "public sphere" combines both sense when conceived as the sphere of openly accessible information and communication about matters of general social concern. (Starr, "Creation of the Media")

Creative Reluctance

1. The US government exercised a limited degree of control over technological development. 2. It had a desire to foster a national network, but with certain limitations.

Institutional durability and social change

1. Remarkable that features of the US of the 1830s are still recognizable today. 2. So many changes, yet the same pattern is still evident 3. The US has the same constitution, same structure of law and government, the same structure in civil society and business 4. There is a relationship between institutional durability and social change: people confident enough in US institutions that we're willing to accept social change 5. The thesis of this course is that institutions matter in understanding societies 6. Institutions are exceptionally important in the US 7. The US is not superior: it is exceptionally interesting

Jus commune

1. Roman-canonic law 2. Law that transcended diversity of local tribes, communities and nations 3. Replaced by national legal systems with the rise of the nation-state (Merryman and Pérez-Perdomo)

Secondary (power-conferring) rules

1. Rules of recognition: fundamental rule by which all other rules are identified and understood e.g. Constitution, statutes 2. Rules of change: rules which empower people to legislate and to enter private transactions for the purpose of varying their rights and duties 3. Rules of adjudication: rules empowering people authoritatively to apply rules and sanctions

Abstract (principles, values) and concrete (rules, norms)

1. Rules vary in their abstraction and generality: they can be either concrete or abstract 2. Rules used in both senses here 3. E.g. in US Constitution rules used as both concrete rules (2 senators per state) and principles (guarantees of a republican form of government to every state) 4. Abstract rules need to be interpreted 5. Relationship of principles to rules varies a great deal 6. How do we translate rules when circumstances change e.g. rise of the internet Relation of principles to rules, rules to cases

The Law and the Land

1. SCOTUS also upheld zoning restrictions. One couldn't use land for commercial purposes. In addition, municipalities created historic districts. These are just a few of the many limitations upheld to the outrage of many property owners. 2. Eminent domain: the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners 3. Power of eminent domain has been expanded tremendously. The government often delegates power of eminent domain to corporations e.g. GM condemned a neighborhood to build a factory. Eminent domain delegations so common and so instrumental to economic development. 4. Nevertheless, we shouldn't assume all reallocations of property rights are good.

Ethos of science; scientific norms; institutional imperatives

1. Science is an illustration of an institution whose rules are set by a community, not the government 2. It is true that government regulates science through institutions such as the NIH and IRBs, but science largely structured by the scientific community 3. Merton makes the case that the norms of science follow from the values of science 4. Values, he argues, have not only methodological rationale but also moral force 5. 4 norms he points to as guiding science: communism, universalism, disinterestedness and organized skepticism 6. Merton has a fundamentally optimistic vision of science 7. Worth comparing to view espoused by Ioannidis that most published science articles are false, because the reward system is screwed up 8. Ioannidis: too few studies replicated, too little policing and too many conflicts of interest 9. In short, Merton has a useful framework for understanding science, but he does not have the last word (Merton)

Disinterestedness; rigorous policing

1. Should not confuse institutional with motivational levels 2. The institution enjoins disinterested activity and then it is in the interest of scientists to conform 3. Absence of fraud due to institutional demand (Merton)

"We, the Jury: The Jury System and the Ideal of Democracy" by Jeffrey Abramson

1. Shows two models of the jury and the transition that is taking place in its role as we move from the jury as a deliberative body to a representative one 2. This change takes away from the jury its noble role as the premier body to translate democratic ideals into everyday practice and makes it just another group whose task is to represent constituents, where discussion and thought leading to collective wisdom are secondary as they strive for "the vote" 3. In Ch. 1 see the transition of the jury from being locally informed of the activities of the defendant, including the incident itself, to today's fear of anybody with knowledge of the incident

Characteristic patterns of civil society in early-19th to mid-20th century America: federated, chapter-based, cross-class, gendered associations

1. Skocpol calls attention to something de Tocqueville failed to acknowledge: by 1880s, big groups were confederations 2. This structure perfectly matched the federal structure of government 3. This is isomorphism at work 4. The federal structure makes sense for influencing government: it worked for the temperance and abolition movements 5. In addition, there was a lot of active membership at the local level 6. Many of these organizations were cross-class 7. These organizations tended to be all-male e.g. Elk, Moose, Lions, Veterans' groups

Why no (legitimate) profit-making in government today?

1. The absence of a clear public-private boundary in pre-modern systems of rule 2. The sharpening of the public-private distinction 3. States and state-building 4. The rise of the "tax state"

"The American Private Philanthropic Foundation and the Public Sphere, 1890-1930" by Barry Karl and Stanley Katz

1. The awareness on the part of a small but significant group of Americans that the older system of local charitable support and local reform might not continue to work, at least if left in its traditional form, is where the transition begins. The creation of the modern foundation and its legitimation as a national system of social reform - a privately supported system operating in lieu of a governmental system - carried the United States through a crucial period of its development: the first third of the twentieth century. While other western societies facing similar problems moved towards national systems of governmentally supported programmes, American society evolved a private method of producing many of the same results. The method was destined to have consequences not only for the period when foundations reigned supreme in the field of research bearing on social policy, but for the later and more recent period as well. The role the federal government was ultimately forced to accept was shaped and continues to be shaped by the presence of private philanthropy. 2. By the last decade of the nineteenth century, the traditional institutions and goals of American charitable action no longer sufficed to achieve the aims and satisfy the ambitions of an emerging philanthropic class, whose values changed from "charity" to "philanthropy".15 The philanthropists as a group were newly minted captains of industry, self-made men riding the crest of America's surge to industrial prosperity in the last third of the nineteenth century. They were not well assimilated into the institutions and patterns of élite charitable activity, although they were mostly committed to sectarian religious traditions. And they were making money faster than they could give it away. For a generation still imbued with the notion of the stewardship of wealth, this fact alone posed problems and created an incentive to establish new modes of charitable action. A more scientific and business-like approach, they thought, was to attack the root causes of social dysfunction directly, when one could determine what they were. And how did one find out? The answer, it seemed clear by the turn of the twentieth century, lay in the scientific investigation of social and physical well-being. The answers lay in research, and in precisely that sort of investigation which characterized the work of scientists and the new social scientists in the emerging American university system. Economically, philosophically and politically, then, philanthropy and the modern university with its emphasis on research are the products of the same era and the same impulses. 3. At just about this time comparable institutions began to emerge, on the apparently simultaneous and unexamined assumption that the philanthropic trust could best be organized with very general terms of reference. In this way, the donor could make a substantial gift in trust, that is in perpetuity, to be managed by a self-perpetuating board of trustees, its use limited only by the most general statement of purpose imaginable - ordinarily, to promote the "well-being of mankind". Although the philanthropic trust seems obvious in retrospect, it was both unlawful - given the standards of British and American trust law - and unforeseen at the moment it sprang into a multiple existence in the first decade of the twentieth century. The philanthropic foundation thus represents the fusion of traditional charitable organization, ancient methods for the perpetuation of family wealth and novel social, legal and intellectual ideas. 4. the potential of the foundation movement, both for good and ill. Almost from the moment of the creation of the first foundation, there came into being a body of criticism which has not significantly altered over the past 75 years. The criticism was, on the whole, populistic and was based on the assumption that the foundations represented the investment of ill- gotten gains in a manner which threatened to subvert the democratic process by giving philanthropists a determining role in the conduct of American public life. As one reads through the hostile literature, similar themes recur: money which ought to be in the hands of the public is being retained by aristocrats for purposes beyond the control of democratic institutions; the academic freedom of universities is being subverted by control of academic budgets by the foundations; public policy is being determined by private groups; the scientific and scholarly research and the artistic creativity of individuals are being stifled by the emphasis of foundations on group-research; smallness and individual effort are thwarted by materialistic and business-oriented demands of foundation management; foundations are bastions of an élite of white, Anglo-Saxon, Protestant managers holding out against the normal development of a pluralistic and ethnic society; and so on. These criticisms, and their counterparts, are founded generally in the half-examined premise that foundations pose an intellectual and financial threat to the democratic constitution of the national intellectual life. More important, there exists the almost totally unexamined view that an intellectual conspiracy threatens the health of the body politic. The foundations have learned to live with this criticism, although it accounts for their perennially defensive political and intellectual attitude, but what matters to the present argument is the way in which the foundations overcame political challenges to their legitimacy in the first years of their existence 5. It is possible that in the process of developing the modern foundation, both defenders and critics gave the term "private" a special and deceptive meaning. The right to refuse disclosure, once part of any dictionary definition of the term, could scarcely be given the full defence it had always had. The various "tax-benefits" conferred on donors became the instrument which justified public investigation; but the truth of the matter was far more serious than the questionable idea that foundations were spending money that, somehow, rightfully belonged in the public treasury. Whatever the source of the money and its relation to the public treasury, the programmes it was supporting were intended to influence the situations and actions of part or all of the public. "The welfare of mankind" which appeared in various forms in the initiating documents of the foundations was being interpreted and used far more explicitly than the "general welfare" clause of the constitution of the United States

Civic Arena

1. The civic arena consists of voluntary private organizations for public purposes (e.g. reform groups, political parties) 2. It is a subset of civil society

"The Global Diffusion of Public Policies: Social Construction, Coercion, Competition, or Learning?" by Frank Dobbin, Beth Simmons and Geoffrey Garrett

1. Social scientists have sketched four distinct theories to explain a phenomenon that appears to have ramped up in recent years, the diffusion of policies across countries. 2. Constructivists trace policy norms to expert epistemic communities and international organizations, who define economic progress and human rights. 3. Coercion theorists point to powerful nation-states, and international financial institutions, that threaten sanctions or promise aid in return for fiscal conservatism, free trade, etc. 4. Competition theorists argue that countries compete to attract investment and to sell exports by lowering the cost of doing business, reducing constraints on investment, or reducing tariff barriers in the hope of reciprocity. 5. Learning theorists suggest that countries learn from their own experiences and, as well, from the policy experiments of their peers. 6. Despite their differences, certain insights and predictions from these theories overlap. 7. Constructivists and hegemonic ideas theorists focus on the role of experts and global organizations in promoting new models of how to achieve growth or how to institutionalize women's rights. 8. International relations scholars have brought the two camps together. 9. The predictions of focal point theory for coordination models are much like the predictions of the follow-the-leader thesis of constructivists, although in the former countries are watching a leader to ensure market coordination and in the latter they are watching for signs of what makes the leader great.

Americanization of the post office: subsidies to the press in America vs. taxes in Europe

1. Stamp Act left unwritten precedent: not taxation of the press, but substantial subsidies for the press. 2. Among formative decisions, few were as great as the Post Office. 3. In England the Post Office was a crucial organ of state power. It was used for espionage and surveillance. There was no principle of the confidentiality of the mail. Newspapers were admitted to mail, only if they satisfied censors in Europe. 4. The Constitution only nationalizes the Postal System. 5. Congress created a postal network that connected every village. 6. This was a republic on a continental scale. 7. Postal system had nation building aspect, as it aimed to sew the nation together. 8. The Post Office subsidized the press in 2 ways: A) Newspapers had a right to exchange copies for free with one another. Editors relied on other papers for the nonlocal news that filled most of their columns. In effect, the federal government was encouraging local papers to become outlets for a national news network. This was an unselective subsidy. B) Direct selective subsidies. Printing and advertising contracts were given by the party in power to favorable newspapers. 9. Because of the federal system and the fracturing of power at all levels, papers were subsidized at all levels. 10. The circulation of newspapers in the US was dramatically higher than in Europe. And this was at a time when US was mostly farmers. 11. Some testimony to the impact of institutions is that Tocqueville goes to frontier Michigan and sees newspapers dropped off at the edge of the wilderness. He is impressed by owner of cabin who was not only literate but also willing to advise him on what it would take to make France prosperous. That is to say, rural people retain connection to the wider world and the national government.

Social Capital

1. Starr defines it as having three components: social connections, relations of trust, and reciprocity. 2. It exists at both the individual and community level. 3. It, for instance, can help a guy get a job. 4. In addition, the community can draw on trust in times of crisis. 2. Textbook definition: The links, shared values and understandings in society that enable individuals and groups to trust each other and so work together

Story behind Creation of the Media

1. Starr wanted to take history all the way to the present 2. History provides context for what happened in recent decades 3. People think of technology as being the determining force in the media: Starr wanted to show the importance of political choices

Legislative supremacy

1. State positivism, as expressed in the dogma of the absolute external and internal sovereignty of the state, led to a state monopoly on lawmaking 2. Only statutes enacted by the legislature were seen as law in this view 3. In contemporary times, with the rise of transnational law and judicial review, legislature no longer supreme lawmaking body (Merryman and Pérez-Perdomo)

Some competing explanations for triumph of nation-state

1. States make war, and war makes states ("bellicist" explanations) 2. Modernization/economic development 3. Literacy and communication ("imagined communities") 4. World polity (legitimacy)

Creation of the Media: Triumph and Dilemma

1. Story of American triumph and dilemma 2. Triumph in that there was early and rapid development of communications (e.g. Post Office, telegraph, radio, telephone), even when the US was not dominant in the world. This gave the US a comparative institutional advantage. It helped foster economic growth and even gave the US a military advantage. 3. The American dilemma. Ideally, the press is the guardian of people's interests and holds government accountable. However, the media turned into a power in their own right and were able to bend law to their advantage.

Substantive principles

1. Substantive principles attempt to carry out policies, some of them with constitutional status, that cannot be tied to any legislative judgment 2. Sunstein argues Chevron overcomes them (Sunstein)

Syntactic principles

1. Syntactic principles help to discern statutory meaning in the particular case: they guide the reading of the statute 2.It seems clear that agency interpretations will not prevail when they conflict with syntactic norms, argues Sunstein (Sunstein)

"Did Insecure Property Rights Slow Economic Development? Some Lessons from Economic History" by Naomi Lamoreaux

1. The essence of the property rights argument is that individuals would not invest their money in assets whose returns were subject to manipulation, just as they would not freely lend to someone who could choose with impunity whether or not to pay them back, or how much to pay them. 2. This essay explores an important historical example that poses an analogous puzzle: the willingness of investors to buy minority shareholdings in corporations in the late nineteenth-century United States despite the very real possibility that investors owning a majority of the shares would expropriate a significant percentage of their returns 3. It thus may well be that secure property rights are now more essential for successful economic development for the simple reason that investors will naturally gravitate toward countries where such protections exist.

Key policies in evolution of health care programs

1. Tax exclusion of employer contributions: in 1954 Congress said employer sponsored insurance is not taxable. Until the coming of the ACA, this was the second biggest health subsidy. The government was essentially subsidizing people with good jobs and good health insurance, so this was a subsidy to the rich. This was a very influential development. 2. Medicare and Medicaid: In reaction to the defeat of Truman's plan, his aides said let's add a hospitalization component to Social Security. This became Medicare in 1965 under LBJ, as Democrats overcame opposition. In 1965 Wilbur Mills switched sides and championed the Democratic proposal. Mills had the idea of combining the Democratic idea of Medicare with the Republican idea of Medicaid. The AMA wanted the federal government to fund states' payments to doctor to treat the poor. Thus Medicare Part A was the Democrats' idea (hospitalization) and Medicare Part B (medical services) was Mills' idea. Medicare Part C was Medicaid, a program for "the deserving poor" - the poor blind, disabled, single mothers with kids and widows. Medicaid also ended up covering nursing services. There was a separate program for veterans. These programs had very little in the way of cost containment. That is to say, there was a lot of frosting on this three-layer cake. Hospitals were paid on a cost basis. Doctors were paid on a usual customary basis. Congress and the Administration didn't want to impose cost constraints.

Other factors that could explain the decline in civic participation from the 1970s to early 1990s

1. Technology 2. Social change 3. Organizational strategies

Organized skepticism

1. Temporary suspension of judgment and the detached scrutiny of beliefs (Merton)

Partisan polarization and the Affordable Care Act (2010)

1. Thanks to the increased polarization between America's two major parties, swings in power may now results in greater swings in policy. Through most of the twentieth century, the political system's strong gravitational forces kept national policy from lurching first one way and then the other. Both of the parties were ideologically mixed coalitions tethered to the center; shifts in control of Congress or the White House, or both, did not usually amount to a wholesale reversal in the direction of government. The overwhelming pattern from 1993 to the 1970s was continuity, tilting in a liberal direction. Since then American politics has been a tug-of-war. 2. The House has voted 54 times to repeal the Affordable Care Act ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

Marriage and property rights in children

1. The "before" is a world in which men possessed property rights in children understood as necessary labor power and as valuable resources. Marriage was how the legal system marked children as owned -- possessed legally or legitimately -- just as all legal systems develop mechanisms for marking valuable property as possessed. And for the wealthy, who were the main consumers of marital law until the nineteenth century, it was also a way to define lineage and to negotiate alliances between families. Happiness (and love) had nothing to do with it. 2. The struggle to make marriage an expression of the right to happiness is a familiar one -- marked by a growing divorce rate, the undoing of the paternal right to child custody and control, as well as more general changing understandings of children and of sexuality within and without marriage. For the many nineteenth and early twentieth century Americans who made and remade marriages, quietly and often beneath any public scrutiny, the right to individual happiness did define the goals of marriage. But those goals would sometimes, more than occasionally, be frustrated by lingering restrictions on marital freedom, sometimes with truly disastrous results. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

American patterns of innovation

1. The "democratization of invention": US had more patents per capita than England and France, according to Khan. Patents went to people with little education, people from rural areas with no special connections. Great inventors like Edison also came from modest roots in the early to mid-19th Century. Edison had no training in science and operated on a trial and error basis. 2. Disruptive innovation from the low end of the market: Khan also emphasizes the tremendous variety of inventions that made life more convenient. There were more than 4,000 patents given to women. They came disproportionately from rural areas and were for things such as utensils that made a difference in people's life.

"Law and Administration after Chevron" by Cass Sunstein

1. The Chevron principle does not apply unless Congress has given law-interpreting power to the agency 2. This basic principle calls for deference to an agency's determination when the agency has been granted the basic authority to implement the statute through rulemaking or adjudication 3. It argues against deference most powerfully when there has been no grant of implementing power at all, but also when an agency has been granted but has not exercised implementing power, when it is deciding on its own jurisdiction, or when it is otherwise likely to have a bias 4. When the relevant interpretive norm is part of an effort to discern legislative instructions, Chevron is uncontroversially subordinate to that norm 5. Harder questions arise in cases involving norms that serve substantive or institutional goals not directly connected to a congressional judgment 6. When these norms are traceable to constitutional considerations, or to other efforts to ensure a clear congressional statement before government may go forward on a particular matter, the Chevron principle should be overcome 7. And when the norm is an effort to counteract some form of bias, Chevron should be inapplicable 8. The Chevron principle should prevail, however, when the relevant norm reflects an effort to promote rationality in regulation and when it is intended to ensure coherence and integrity in the administrative process: here deference to the agency is especially important

The Civil Sphere and the Civic Arena

1. The Civil Sphere: The whole terrain that exists between individuals and the state 2. The Civic Arena: This is more public oriented. This is a subset of civil society that overlaps into government itself.

Constitution-making in America

1. The Constitution only nationalizes the Postal System. 2. Passing of the 1st Amendment a critical moment 3. Lessig. There are four constraints on the 1st Amendment: 1) Law, 2) Markets, 3) Norms, 4) Architecture

Enabling Act of 1933 [Germany]

1. The Enabling Act of 1933 gave the cabinet the power to govern by decree for four years, a measure also perfectly legal under the constitution 2. Without a legal breach, one of the world's most horrific states, Nazi Germany, was born 3. Note this comes after Hitler declares a state of emergency under the Weimar Constitution (Scheppele)

The contradiction between professional authority and rule of the market

1. The contradiction between professionalism and the rule of the market is long-standing and unavoidable. 2. Medicine and other professions have historically distinguished themselves from business and trade by claiming to be above the market and pure commercialism. 3. In justifying the public's trust, professionals have set higher standards of conduct for themselves than the minimal rules governing the marketplace and maintained that they can be judged under those standards only by each other, not by laymen 4. Professional organization is one form resistance to the market may take. 5. Similarly, concentrations of ownership and labor unions are other bases of market power. 6. These cases are parallel. Just as property, manual labor, and professional competence are all means of generating income and other rewards, so they can be used by a monopolistic firm, a strong guild or union, or a powerful, licensed profession to establish market power. 7. This was what the medical profession set about accomplishing at the end of the nineteenth century when corporations were forming trusts and workers were attempting to organize unions—each attempting, with varying success, to control market forces rather than be controlled by them ("The Social Transformation of American Medicine" by Paul Starr)

The conversion of authority into economic power

1. The conversion of authority into high income, autonomy, and other rewards of privilege required the medical profession to gain control over both the market for its services and the various organizational hierarchies that govern medical practice, financing, and policy. 2. The achievement of economic power involved more than the creation of a monopoly in medical practice through the exclusion of alternative practitioners and limits on the supply of physicians. 3. It entailed shaping the structure of hospitals, insurance, and other private institutions that impinge on medical practice and defining the limits and proper forms of public health activities and other public investment in health care. 4. In the last half century, these organizational and political arrangements have become more important as bases of economic power than the monopolization of medical practice. ("The Social Transformation of American Medicine" by Paul Starr)

The counter-majoritarian difficulty

1. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to "majority will" as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel's naming of this problem, it dominated constitutional theory. 2. One famous answer to the counter-majoritarian difficulty focuses on the idea of "discrete and insular minorities." The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups "spread the wealth" and the pain—no one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. The famous "Footnote Four" of the United States Supreme Court's decision in the Carolene Products case can serve as the germ of an answer to the counter-majoritarian difficulty. Judicial review is arguably legitimate when it serves to protect the interests of "discrete and insular minorities" against oppressive actions by democratic majorities.

Innovation and the Future of Economic Growth

1. The current debate: we've had periods of tremendous innovation. Can we sustain this innovation? Will we get payoffs from this innovation? 2. Robert Gordon versus the techno-optimists 3. Gordon: US faces bleak future. He emphasizes that the marginal productivity of computing technology affects standard of living in a much more contained fashion than the earlier great American inventions. He downplays the role of computer technology in the economic growth of the latter 20th century in accounting for business cycle and trends. In addition, he also questions the actual productivity of such technological developments 4. The Second Machine Age: reveals the forces driving the reinvention of our lives and our economy. As the full impact of digital technologies is felt, we will realize immense bounty in the form of dazzling personal technology, advanced infrastructure, and near-boundless access to the cultural items that enrich our lives

Shared Analytical Approach of "The Social Transformation of American Medicine" and "Remedy and Reaction"

1. The distinctive position of doctors, Starr says, is not explained by the value Americans place on health 2. Others say American individualism explains the lack of universal healthcare 3. Starr thinks this view is wrong 4. Another school of thought says economic interest explains the lack of universal healthcare i.e. the medical profession is a monopoly and as such is able to exert a great deal of influence 5. Same argument can be made that interest groups blocked the passage of universal healthcare 6. Starr focuses on cultural elements. 7. Starr doesn't see culture and values as inert 8. Groups have to mobilize culture 9. There are different cultural and ideological forces that influence the receptivity of courts, legislatures, and common folks to policy 10. In both books, there are points in history in which conflicts come to the surface 11. There is a lot of contingency: no outcome is inevitable

Absence of countervailing power in health care

1. The elimination of countervailing power in medical care was a fourth element in the structural development of professional sovereignty. The state, corporations, and voluntary associations (such as fraternal societies) might have exercised countervailing power, but all were kept out of medical care, or on its margins. Their exclusion meant no organized buyers offset the market power of physicians. Doctors could then set prices according to what clients could pay. The absence of countervailing power was also a key to the political influence of the profession 2. When health insurance began to develop in the 1920s and 1930s as a way to pay for hospital care, it was paid on a capitated basis. 3. In the 1930s hospitals created prepayment plans such as Blue Cross. 4. In the 1930s, when patients couldn't pay their bills, doctors created Blue Shield as an alternative. 5. Doctors said that commercial insurers could provide indemnity payments: that is, the insurer would reimburse the patient. 6. This marks the beginning of health insurance in the US. 7. This system was highly fragmented. 8. There was no countervailing power on the demand side of the market, whether governmental or private. ("The Social Transformation of American Medicine" by Paul Starr)

"The Sociology of Science" by Robert Merton

1. The ethos of science is that effectively toned complex of values and norms which is held to be binding on the scientist 2. The institutional goal of science is the extension of certified knowledge 3. Scientific norms are moral as well as technical prescriptions 2. The ethos is comprised of sets of institutional imperatives or norms: A) universalism B) communism C) disinterestedness D) organized skepticism E) originality F) humility

An alternative historical institutionalist account of America as an exception

1. The founding moment and its legacies: A) entrenchment of constitutional liberalism, B) federalism: the equal footing principle and continental expansion, C) elasticity of American state power. Starr emphasizes institutions and the law as well as path-dependent development. Very early developments can have a disproportionate impact on the long-term. The US grew under unprecedented conditions. The Founding moment and the choices made then had an extraordinary impact, because we still live under the same Constitution. The vibrancy of civil society is a result of those early choices. These early choices unfolded in 3 stages. The US began with a war. The war required mobilization. The Declaration focused on equality. The Founders needed the support of the people. The Articles of Confederation were extremely weak with no executive, no judiciary. The Continental Congress was dependent upon states to provide troops, funds. Because of the nation's insolvency, there was almost a revolt in Washington's army. In the 1780s, the US state was so poor it was unable to prevent the UK and Spain from closing their ports to US trade. To make matters worse, the Appalachian Region was breaking away. At the Constitutional Convention half of the men had served as officers under Washington. This was a revolt agains the Articles of Confederation. The Constitution was an effort to create a state that could defend the US. There was a suspicion of the power of the state, so Americans were reluctant state builders. The state became stronger but constrained. The US was successful in building a continental nation thanks to the equal footing principle. In the 19th Century the US was not a weak state. When the South seceded, it discovered just how strong the US state was. The US state is very elastic. This was true in WWI and WII. Reserves of power were created through economic growth. 2. Sequence of political-economic development: democracy, then industrialization 3. Two American societies: A) slavery and the Constitution; the Civil War as a second founding, B) Southern power from the end of Reconstruction to the New Deal, C) ace, ethnicity, and American institutional exceptionalism

"Calculability" of law

1. The fourth characteristic is that of calculable law. The capitalistic form of industrial organization, if it is to operate rationally, must be able to depend upon calculable adjudication and administration. The royal "cheap justice" with its remissions by royal grace introduced continual disturbances into the calculations of economic life. The proposition that the Bank of England was only suited to a republic, not to a monarchy, was related in this way to the conditions of the time. 2. Capitalism requires predictability in the form of rule of law (Weber)

German health care finance as a system of countervailing power

1. The freedom to negotiate fees was restricted in several rounds of cost containment legislation. For example, payments from sickness funds to the KV (regional associations of insurance doctors, Kassenärztliche Vereinigungen) were no longer allowed to increase faster than the taxable income of the insured. Lawmakers also tried to strengthen the sickness funds as a countervailing power to the KV system, insofar as the sickness funds were mandated to act more uniformly. ("The Social Transformation of American Medicine: A Comparative View from Germany" by Stefan Gress, Stefan Gildemeister, and Jurgen Wasem)

Strategic position (gate-keeping) and the defense of professional autonomy

1. The gatekeeping authority of doctors gives them a strategic position in relation to organizations. 2. In effect, the profession's authority puts at its disposal the purchasing power of its patients. 3. From the standpoint of the solvency of a health insurance company, the authority to prescribe is the power to destroy. 4. So, too, the physicians' authority to decide whether and where to hospitalize patients gives doctors great leverage over hospital policy. 5. And, similarly, the authority to prescribe drugs and other supplies obliges pharmaceutical companies and other producers to court the profession's good will,to finance its journals, and thereby to subsidize its professional associations and political activities. ("The Social Transformation of American Medicine" by Paul Starr)

The decree in public law litigation

1. The historic power of equity to order affirmative action gradually freed itself from the encrustation of nineteenth century restraints 2. The result has often been a decree embodying an affirmative regime to govern the range of activities in litigation and having the force of law for those represented before the court (Chayes)

The Institutional Environment for Innovation

1. The institutional environment for innovation is defined by several different factors: A) Legal rights, B) Constitutional foundations, C) Patent, copyright laws, D) Policies for financing, for education, for research, for basic/applied science etc/ 2. There are constitutive choices about architecture that can lead to more or less open systems 3. American choices about postal system led to open network, whereas European government created closed networks 4. The open network is hospitable to change. With the mail, telegraph, and telephone there are common carrier issues. Do carriers have to carry all content without prejudice? 5. Post Office was common carrier when Western Union became a telegraph monopoly in 1866. Western Union had a bilateral monopoly with AP. No news of UPI was carried by Western Union. By the early 20th Century, there was antitrust law and laws against bilateral monopoly. 6. The question of net neutrality is another common carrier question. 7. In addition, different educational systems may or may cultivate innovation. 8. Furthermore, culture can affect attitudes towards change, novelty. Fisher notes that historically age was given precedence. In the 1820s, Americans started to prioritize youth.

"Citizenship and Nationhood in France and Germany" by Rogers Brubaker

1. The international arena not just a territorial organization of states, but also as a set of bounded and mutually exclusive citizenry 2. Focus turns to the formal dimension of citizenship, 3. Brubaker brings the modem state in its dual dimensions as a territorial organization and as a political organization into the analysis of modem citizenship: thus two ways of understanding citizenship 5. A) a formal and abstract approach to citizenship as a general membership status and obligation of a permanent resident population of a state 6. B) a concrete and substantive approach that defines citizenship as special membership status where citizens are a privileged subgroup of the population of the state

Postal networks, newspapers, the creation of a self-aware public

1. The logic of political fragmentation and economic competition enriched the public sphere. 2. After 1695, there was a tremendous increase in the number of newspapers.

England's opening: political fragmentation, economic competition

1. The logic of political fragmentation and economic competition enriched the public sphere. 2. After the repeal of the licensing law in 1695, there was a tremendous increase in the number of newspapers.

Fourteenth Amendment

1. The most important expansions of civil rights in the United States occurred as a result of the enactment of the Thirteenth and Fourteenth Amendments of the U.S. Constitution 2. The Thirteenth Amendment abolished slavery throughout the United States 3. In response to the Thirteenth Amendment, various states enacted "black codes" that were intended to limit the civil rights of the newly free slaves 4. In 1868 the Fourteenth Amendment countered these "black codes" by stating that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws." 5. Idea that anyone born in the US is a citizen and can be treated as nothing less

Why the nation-state?

1. The nation-state (or national state) as a distinct type 2. Alternatives to the national state in the 13th century? 3. Some competing explanations for triumph of nation-state 4. Comparative historical analysis: large-N versus small-N studies 5. Wimmer and Feinstein's test of theories of nation-state formation

"Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change" by Marc Galanter

1. The official system of litigation is analyzed on 4 levels: rules, courts, lawyers, and parties 2. Shows that the structure of that system confers interlocking and reinforcing advantages on the 'haves' through: (1) parties--advantages of strategic position are enjoyed by repeat-players, (2) legal services--advantages of skill, specialization & continuity are enjoyed by organized, professional, & wealthy parties, (3) institutional facilities--cost barriers confer advantages on 'possessors' & on the beneficiaries of existing rules, and (4) rules--favorable rules are enjoyed by older, culturally dominant interests; due process barriers benefit 'possessors' 3. This analysis of advantage is connected to patterns of use of the official system and of alternative systems for pursuing remedies, both those appended to the official system and those which are independent in norms and sanctions 4. Possible reforms on each of the 4 levels are considered in terms of their expected impact on the whole organization of remedy systems 5. Its 'unreformed' features are seen to articulate the legal system to the discontinuities of culture & social structures, by permitting unification & universalism at the symbolic level & diversity & particularism at the operating level 6. The interlocked advantages of the 'haves' make changes at the level of rules unlikely to be determinative of redistributive outcomes 7. Changes in the organization of the parties (& changes in legal services which facilitate that organization) are the most powerful fulcrum of change.

Corporatism

1. The organization of a society into industrial and professional corporations serving as organs of political representation and exercising control over persons and activities within their jurisdiction. 2. In some countries, some groups have a monopoly over representing interests e.g. there's one business group and one labor group 3. This is not the case in the US, as we have a competitive association system 4. Different systems create different patterns of representation 5. Corporatist groups tend to perform services for the government.

"Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth- Century England" by Douglass North and Barry Weingast

1. The political institutions governing society can be considered endogenously 2. Fiscal constraints and a revenue-seeking Crown, problems exacerbated by an uncooperative Parliament, created a situation of insecure rights in which the wealth and welfare of individual citizens were at risk 3. Prior to the Glorious Revolution, institutions such as the Star Chamber enabled the Crown to alter rights in its favor in a manner that parliamentary interests were hard pressed to resist 4. the triumph of parliamentary interests in the Glorious Revolution led to five significant institutional changes: A) removed the underlying source of the expediency, anarchaic fiscal system and its attendant fiscal crises B) By limiting the Crown's legislative and judicial powers, it limited the Crown's ability to alter rules after the fact without parliamentary consent C) Parliamentary interests reasserted their dominance of taxation issues, removing the ability of the Crown to alter tax levels unilaterally D) by creating a balance between Parliament and the monarchy rather than eliminating the latter as occurred after the Civil War parliamentary interests insured limits on their own tendencies toward arbitrary actions 5. Increasing the number of veto players implied that a larger set of constituencies could protect themselves against political assault, thus markedly reducing the circumstances under which opportunistic behavior by the government could take place 6. Allowed Crown to make credible commitments and borrow a ton at very low interest rate

Architecture as politics

1. The regulability depends on the code. Some architectures of cyberspace are more regulable than others; some architectures enable better control than others. Therefore, whether a part of cyberspace—or the Internet generally—can be regulated turns on the nature of its code. Its architecture will affect whether behavior can be controlled. To follow Mitch Kapor, its architecture is its politics 2. If some architectures are more regulable than others—if some give governments more control than others—then governments will favor some architectures more than others. 3. Favor, in turn, can translate into action, either by governments, or for governments. 4. Either way, the architectures that render space less regulable can themselves be changed to make the space more regulable 5. This fact about regulability is a threat to those who worry about governmental power; it is a reality for those who depend upon governmental power. Some designs enable government more than others; some designs enable government differently; some designs should be chosen over others, depending upon the values at stake ("Code, Version 2.0" by Lawrence Lessig)

Patterns of innovation today

1. The return of entrepreneurial innovation: One of the big surprises is the extent to which the US has returned to the earlier patterns with openness to entrepreneurial innovation e.g. small-scale startups, app designers. Big organizations are no longer gatekeepers on the path to innovation. 2. Peer production/nonmarket social production (Yochai Benkler) 3. Non-credentialed clearinghouses for problem-solving (e.g., Innocentive)

Eponymy

1. The scientist's claim to his intellectual property is limited to that of recognition and esteem, which, if the institution functions with a modicum of efficiency, is roughly commensurate with the the significance of the increments brought to the common fund of knowledge. 2. Eponymy, namely derivation of a name of a city, country, era, institution, or other place or thing from that of a person, is thus at once a mnemonic and commemorative device. (Merton)

World of agreement (World A) versus world of boilerplate (World B)

1. The story of bargained-for exchange represents contract as it is imagined to be in the world of voluntary agreement, the world Radin calls World A (for agreement). 2. This is still how many people understand contract: contract is supposed to involve consent by each party to give up something of his or her own to obtain something he or she values more. 3. The elements of the paradigm case involving a bargain and free choice or consent are indispensable 4. World B is the world of boilerplate: boilerplate consists of purported contracts. World B is the expanding universe of purported contracts that don't act or look like those of World A. 5. There is no bargaining, no ideal "meeting of minds" in World B, as the relationship is entirely one-sided 6. There's a democratic degradation, as laws don't apply in the carefully devised private legal universe that firms create for themselves (Radin)

Institutional passivity and overload

1. The strategic advantages of the RP may be augmented by advantages in the distribution of legal services 2. Both are related to the advantages conferred by the basic features of the institutional facilities for the handling of claims: passivity and overload 2. Passivity: these institutions are passive, because 1) they must be mobilized by the claimant-giving advantage to the claimant with information, ability to surmount cost barriers, and skill to navigate restrictive procedural requirements and 2) the burden is on each party to proceed with his case, even though one party is richer than the other 3. The advantages conferred by institutional passivity are accentuated by the chronic overload which typically characterizes these institutions: (a) by causing delay (thereby discounting the value of recovery); (b) by raising costs (of keeping the case alive); (c) by inducing institutional incumbents to place a high value on clearing dockets, discouraging full-dress adjudication in favor of bargaining, stereotyping and routine processing; (d) by inducing the forum to adopt restrictive rules to discourage litigation 4. Thus beneficiaries of existing rules win (Galanter)

Theories of Law

1. Theory 1: Law is coercive order from sovereign: Hart thinks this punitive understanding doesn't account for all of law, as state delegates power to individuals through contract law 2. Predictive Theory of Law: a society's legal system is defined by predicting how the law will affect a person, as opposed to considering the ethics or morals supposedly underlying the law: Hart argues this misses internal happening, namely crucial idea of obligtion

"What Gay Marriage Teaches About the History of Marriage" by Hendrik Hartog

1. There are important continuities in our marital history, continuities revealed by gay marriage controversies. So that "Man and Wife in America" can be seen as inextricably linked to "Man and Man and Wife and Wife in America." 2. First line of continuity: the more than two century long struggle to remake marriage as an expression of the imagined right to individual happiness 3. Second: a two century struggle to remake marriage as a contractual relationship between legal equals 4. Third: derivative on both of the first two: That is, at every step of the way, over the past two centuries, many disagreed 5. Fourth: Marriage has always been an institution about which local and state officials felt authorized to make constitutional claims about. The apparent force of the Full Faith and Credit clause that appeared to require conservative state officials to recognize divorces and remarriages made in more liberal jurisdictions was always qualified by a public policy limitation. That "limitation" held that where the public official determined that a strong public policy of the state was implicated (say, for example, a state's strong public policy against marital freedom) it was constitutionally permissible for the official to deny full faith and credit to the offending law or practice of the "bad" state. As a side note, and as a measure of the continuities that I have been exploring, it is worth mentioning that the Defense of Marriage Act is in its fundamentals a restatement of this very old public policy limitation.

The Boundaries of Civil Society

1. There are very fuzzy boundaries between civil society and other entities 2. The boundary between civil society and local government is especially fuzzy and very unclear 3. In New Jersey, the fire department is all-volunteer, but state residents don't have to pay for fire protection, even though fire protection is a public service 4. The firefighters even have their own association, but are not paid for their work 5. There are other institutions at the local level that straddle this boundary 6. Some libraries are partly funded by municipalities 7. The Corner House in Princeton, for instance, is partially funded by the municipality, but staffed by volunteers 8. These boundaries are very unclear in the US 9. There are also unclear boundaries between civil society and commerce 10. Some nonprofit hospitals have for-profit subsidiaries 11. Some organizations have gone from nonprofit to for-profit 12. Mutual aid societies, for instance, became insurance companies that are with us today 13. There are also some family companies that operate on a quasi-familial basis

Credit Mobilier scandal (Lamoreaux)

1. There was still the chance, after all, that, even with the subsidies and land grants, running the railroad might not be a profitable endeavor. 2. In fact, Thomas Durant, vice-president of the Union Pacific and his fellow promoters came up with a seemingly foolproof plan: instead of paying outside contractors to build the railroad, the U.P.'s biggest stockholders would just pay themselves. 3. They took over an ephemeral construction company, the Credit Mobilier of America, which just happened to win the contract to build 667 miles of Union Pacific railroad. 4. The Credit Mobilier charged the railroad tens of millions of dollars more than the actual cost of construction, all of which went right into the pockets of the men who were supposedly running the Union Pacific. 5. By the time they were done, they'd cleared at least $23 million (and perhaps considerably more), and the U.P. was on the verge of bankruptcy. 6. Everyone who had invested in the railroad but not the construction company found themselves with nearly worthless securities on their hands. 7. Lamoreaux: In fact, it was quite common in the latenineteenth century for majority shareholders to take advantage of their position to increase their own returns—for example, by electing themselves to corporate offices and then either voting themselves inordinately large salaries or contracting with themselves to provide the corporation with some service or good at an extravagant price. Perhaps the most notorious example of the latter culminated in the Crédit Mobilier scandal of the 1870s, in which newspapers exposed the outrageously favorable contracts that shareholders in control of the Union Pacific Railroad had awarded themselves to build the railroad's right-of-way

DIfference between Law and Other Institutional Rules

1. There's an obligation to follow the law and tougher sanctions, if one does not, in law than in other arenas e.g. sports 2. Law is also one medium through which other institutions are created

One-shotters versus repeat players

1. Those claimants who have only occasional recourse to the courts (one-shotters or OS) and repeat players (RP) who are engaged in many similar litigations over time 2. The spouse in a divorce case, the auto-injury claim- ant, the criminal accused are OSs 3. The insurance company, the prosecutor, the finance company are RPs 4. Obviously this is an oversimplification; there are intermediate cases such as the professional criminal: OS-RP continuum (Galanter)

"Appended" and "private remedy" dispute-settlement systems

1. Those dispute-settlement systems which are normatively and institutionally "appended" to the official system (such as settlement of auto-injuries, handling of bad checks) 2. Private remedy systems of dispute-settlement are typical among people in continuing interaction such as an organized group, a trade, or a university: private remedy supplied (Galanter)

Constitutive Choices: constitutive moments

1. Those that create the material and institutional framework of society. 2. Premise is that the constraints in the architecture of technical systems and social institutions are rarely so clear and overpowering as to compel a single design. 3. At times of decision, constitutive moments, ideas and culture come into play, as do constellations of power, preexisting institutional legacies and models from other countries. 4. Although the people involved in the decisions may not be away of their long-term implications, institutions and systems once established often either resist change or invite it in a particular direction. 5. Early choices bias later ones and may lead institutions along a distinctive path of development, affecting a society's role and position in the world. (Starr, "Creation of the Media")

Law versus administration

1. Throughout its brief history, administrative law has often been concerned with the question whether the name of its own subject is an oxymoron 2. We might distinguish among three positions on that question 3. The first treats law and administration as largely incompatible 4. The second sees traditional legal checks as a bulwark against administrative tyranny 5. The third suggests that these traditional checks must be adapted to the values, functions, and failures of the administrative state 6. The third is Sunstein's view (Sunstein)

A new era: the rise of industrial laboratories in late 19th/early 20th century

1. Tighter coupling of science and technology: in late 19th and early 20th Century, innovation became less democratic. A new national innovation system emerged, as huge capital investments were needed and science and technology grew closer and training was needed to make discoveries. Innovation became a function of large scale organizations. Bell Labs, for instance, was a major source of telecommunications innovations. GE also had a major R&D division. Nonetheless, this innovation wasn't really open to non-elites. 2. War, the federal government, and public investment in science and technology: As scientific advance became more important, government got involved. Furthermore, war pushed the government to invest in things such as the Manhattan project. The world wars led the US government to become more involved in innovation.

Infrastructural barriers; norms of secrecy and privilege

1. To understand Us media history, need to understand developments in early modern Europe. 2. Habermas uses the term "public sphere." Starr defines it differently, namely, as public discussion about matters of general social importance. 3. The public sphere is critical to the development of markets and democracy. 4. There were infrastructural barriers to the development of the media: limited networks and norms of secrecy and privilege. 5. Norms of secrecy and privilege: business of state not for common people. 6. Census information used to be secret. It was gathered for surveillance and taxation. 7. Development of new rules about information was important for the development of the public sphere.

"The Two Western Cultures of Privacy: Dignity Versus Liberty" by James Whitman

1. Traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism 2. Contrasts continental approaches to privacy to what we find in American law 3. Throughout, Whitman argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face 4. These differences reflect the constrasting political and social ideals of American and continental law 5. Need to broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals

Inequality and polygynyet

1. Traditional polygamy is not merely contingently but rather inherently unequal: inequality is "woven into the very fabric of the institution," as Gregg Strauss nicely puts it. 2. Traditional polygamy (as polygyny) gains its stability from the unequal rights of the central spouse. 3. Rivalry, conflict, and jealousy are endemic to the structure of the relationships, and the historical and empirical record supports this. 3. Where one man is the husband of several wives, their relations cannot be fully reciprocal. 4. Vulnerabilities to jealousy are also distributed highly asymmetrically: the husband retains the right to marry additional wives, but not vice versa 5. This asymmetry in the relations of the central and peripheral spouses creates an additional and powerful inequality with respect to divorce, whose effects are likely to shape marital relations more broadly. 6. Peripheral spouses can only divorce the central spouse whereas the central spouse can divorce any spouse. 7. Thus, the central spouse can single out and remove one spouse while retaining the other spousal relations and an otherwise intact family, reducing the cost of the divorce threat vis a vis each wife. 8. Wives, on the other hand, face a much higher cost in threatening divorce, as they thereby lose the only spouse they have, plus whatever familial relations they have formed with the other peripheral spouses ("The Future of Marriage" by Stephen Macedo)

Situation in Marriage

1. Traditionally lots of negotiations, but courts wouldn't recognize negotiations. 2. In the 21st Century there's a presumption of formal equality between pair. 3. Also almost complete contractual freedom exists 4. In addition, there's right to voluntary exit in marriage 5. Family law now occurs really only at the end of the marriage

Types of rules

1.Formal and informal rules 2. Formal rules: those which are typically made by an officially recognized unit or agency of government and are usually written down and legitimated through some formal process of decision-making e.g. Constitution 3. Informal rules: uncodified, unwritten, yet still legitimate rules that govern behavior e.g. saying hi on the street 4. That is to say, both abstract ideas (principles, values) and concrete pronouncements (rules, norms) govern behavior

The traditional model of civil litigation versus public law litigation

1. Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled 2. Chayes argues that this conception of adjudication cannot account for much of what is actually happening in federal trial courts 3. Civil litigation increasingly involves determination of issues of public law, whether statutory or constitutional, and frequently terminates in an ongoing affirmative decree 4. The litigation focuses not on the fair implications of private interactions, but on the application of regulatory policy to the situation at hand 4. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight 5. Such a role for courts, and for judges, is unprecedented and raises serious concerns of legitimacy 6. Chayes' conclusion is that the involvement of the court and judge in public law litigation is workable, and indeed inevitable if justice is to be done in an increasingly regulated society 6. Because of its regulatory base, public law litigation will often, at least as a practical matter, affect the interests of many people 7. Much significant public law litigation is therefore carried out through the class action mechanism (Chayes)

"The Role of the Judge in Public Law Litigation" by Abram Chayes

1. Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled 2. Chayes argues that this conception of adjudication cannot account for much of what is actually happening in federal trial courts 3. Civil litigation increasingly involves determination of issues of public law, whether statutory or constitutional, and frequently terminates in an ongoing affirmative decree 4. The litigation focuses not on the fair implications of private interactions, but on the application of regulatory policy to the situation at hand 5. The lawsuit does not merely clarify the meaning of the law, remitting the parties to private ordering of their affairs, but itself establishes a regime ordering the future interaction of the parties and of absentees as well, subjecting them to continuing judicial oversight 6. Such a role for courts, and for judges, is unprecedented and raises serious concerns of legitimacy 7. Notwithstanding these concerns, Chayes' conclusion is that the involvement of the court and judge in public law litigation is workable, and indeed inevitable if justice is to be done in an increasingly regulated society 8. Because of its regulatory base, public law litigation will often, at least as a practical matter, affect the interests of many people 9 Much significant public law litigation is therefore carried out through the class action mechanism

Credible commitments

1. Transactions that are subject to ex post opportunism will benefit if appropriate actions can be devised ex ante 2. Rather than reply to opportunism in kind, the wise [bargaining party] is one who seeks both to give and receive "credible commitments." 3. Incentives may be realigned and/or superior governance structures within which to organize transactions may be devised 4. E.g. British crown able to make credible commitments to borrow (Weingast and North)

de Tocqueville's Experience in the US

1. Travelers notice things that are different from where they're from 2. In 1820s in France there was a debate about the meaning of the French Revolution. Could the forces unleashed by the revolution be restrained? Or would they emerge again? If so, how could they lead to prosperity? 3. de Tocqueville believed that the pressures for equality would be expressed. Of course, Napoleon led France to disaster and dictatorship. More importantly, however, de Tocqueville saw America as being more egalitarian than Old World societies. 4. In that respect, de Tocqueville was right. How did Americans create such a prosperous society? 5. de Tocqueville was concerned about despotism and individualism. His concern was that people would withdraw into themselves. 6. He visited the US in 1824, as the nation was undergoing tremendous change.

Continuing limits: seditious libel; "taxes on knowledge"

1. Trial of Peter Zenger in 1731 for libel. The English state hadn't completely given up control of the media. Seditious libel was one means of control. In England, "the greater the truth, the greater the libel." This was precedent from the days of the Star Chamber. Andrew Hamilton, Zenger's lawyer, defended Zenger on the grounds that the accusations were true. The jury acquitted Zenger, thereby nullifying a law that it believed was either immoral or wrongly applied to the defendant whose fate they were charged with deciding. This set a precedent: the British stopped persecuting for seditious libel. 2. The British also used the stamp tax to put the price of newspapers out of the reach of working people. Colonial newspapers developed without the stamp tax until 1765, when British wanted colonists to pay for past wars. Stamp tax was tax on the most articulate classes e.g. lawyers and printers. Stamp tax helped change Americans' minds - they forced England to end the tax. The stamp tax also served to politicize printers and prepare them for the Revolution. 3. Stamp Act left unwritten precedent: not taxation of the press, but substantial subsidies for the press.

The sharpening of the public-private distinction

1. Two meanings of the distinction: Public is to private as 1) the whole is to the part; 2) the open is to the closed. 2. Vision of the state as being for the whole of society and open to it 3. Privatization of religion; protections of private property, privacy 4. Conceptions of public and private as a basis for claims on and against the state

Void as against public policy

1. Two reasons justify finding contract void against public policy 2. The first rests on some deontological principle related to either the dignity of the legal system or a requirement that parties seeking relief must have committed no fault themselves 3. The second justification is that refusal to enforce such contracts deters their formation, which benefits the public welfare 4. E.g. law not going to allow a poor worker to sell herself into slavery (Radin)

From 1688 to 1787: British and American constitutionalism

1. US revolutionaries looked to success of revolution of 1688 2. Articles of Confederation were weak, because colonists so suspicious of state power 3. Constitution made, because government made by Articles of Confederation was too weak

Duress

1. Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform 2. Duress is not good means of litigating boilerplate, as it could very negative ramifications: if we make the argument that all poor people sign their contracts in duress, they might all lose their jobs 3. Risk in economic duress arguments is that low-income people come off as dopes (Radin)

Lecture version of Washington Consensus versus the (regrettably named) Beijing Consensus

1. Washington Consensus. This is the view of Acemoglu and Robinson. The key to economic growth is getting institutions right. Once you get those right, growth will follow. One could interpret Acemoglu and Robinson as saying that inflexible rules for institutions are the key to growth. 2. This view, however, is too static. 3. In some cases, you can explain changes as being endogenous to growth. Changes can also involve interest group politics. 4. Lamoreaux doesn't deny that property rights are important. She focuses on fact that property rights can emerge endogenously. 5. Beijing Consensus is a bad term, because process not entirely foreign - it happened in the history of the West. 6. Lamoreaux is right that there are other kinds of policies besides securing property rights that do lead to growth. 7. Government has played an active role in fostering growth. From early in American history, Congress used Western land for development. In 1860s, Congress created land grant colleges: that is, land owned by the government in the West was used to endow new universities. The idea of land grants for education goes back to the Northwest Ordinance. At that time, the sale of land financed public schools. That is, natural capital was converted into human capital. The federal government also used USGS to map the West and its resources. The land grant colleges trained mining engineers.

The Protestant Ethic (1905)

1. Weber became famous famous for book which he wrote before he understood subject 2. Book did not stand up to historical scrutiny. 3. His argument was that the Calvinist idea of predestination was central to the development of early capitalism. 4. This argument is neither internally consistent nor historically accurate. 5. The irony is that Weber at much more nuanced institutional theory of economy later. 6. In "General Economic History" and "Economy and Society" Weber gives much better account.

Weber's institutionalist account of capitalism's origins

1. Weber identifies the social conditions that generated the features he enumerates. 2. Institutional system of capitalism, he says, comes into existence in the 19th Century. 3. At that time, property and land were enumerated with rules and employment was limited. 4. Weber is talking about how the obstacles to the free movement of land, labor, and goods were taken down. 5. Weber is focused on the institutional aspects of capitalism. In his view, there is an interplay between the state and the economy. Calculable law is complementary to calculable enterprise. 6. In addition, for him rationalism has a cultural component. 7. Though he sees religious motivation as being important early on, Weber focuses much on the efficiency explanation. That is to say, the bureaucratic state in his opinion was the most efficient way to take over territory. 8. Weber saw religion playing a particular role in early modern times, but subscribed to the idea that markets most efficient and destined to dominate.

The American health policy trap

1. When America adopted critical tax and health-financing policies in the two decades after World War II, it ensnared itself in a health policy trap, devising an increasingly costly and complicated system that has satisfied enough of the public and so enriched the health-care industry as to make change extraordinarily difficult. 2. Reasons for the Trap 3. Medicare, Medicaid etc. covered majority of the public and well-organized groups. They left out lots of poor, unorganized people 4. These programs channeled money into the healthcare industry. Given that costs = incomes, not surprising that they don't want things to change. 5. Financial arrangements obscured the costs. Most people didn't know what the true costs of care were. If people had to write a check every month, they would've experienced the costs. This fragmentation reduced opposition and resistance. 6. Moral architecture. Veterans, workers, seniors etc. all believed they earned their insurance. Insurance created a sense of deservingness. People didn't want to pay for "the undeserving." Institutions shaped this view. 7. How can we overcome these divisions? The problem is not unsolvable. 8. Insurance exchanges (an idea Starr had). In 1990s the term was health insurance cooperatives, which sound too much like hippies and socialism. The pooling of buying power would guarantee countervailing power. In California and Massachusetts, exchanges do have countervailing power. The alternative is to have them function as a clearinghouse for prices. Now exchanges may be beset by adverse selection. There needs to be competition that rewards plans for value. Plans can market to get just healthy people. ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

Reason for Organizational Success in early-19th to mid-20th century America

1. Why did organizations flourish in the US? 2. There was a right to free association 3. Churches were the templates for organizations 4. People had to organize their own churches and congregations 5. The experience of organizing a congregation was key to building organizations

The "gridlock economy"

1. Will architecture that has nurtured innovation stay open? 2. Property rights can advance and inhibit growth. 3. Patent trolls accumulate war chests of patents that they're not going to use 4. Copyrights law can be overextended and can interfere with creativity. 5. The Gridlock Economy: while private ownership creates wealth, too much ownership means that everyone loses

Why the technological environment might flip toward greater control

1. Zittrain: risks of malware, viruses. 2. There are dangers and increasing demand for control

Constitutive choices about the telegraph, telephone, radio

1. alternative models 2. intermodal competition: what existed in the US, but not Europe. Intermodal competition refers to provision of the same service by different technologies. In the US, for example the telephone competed with the telegraph and intermodal competition of this sort drove innovation. 3. state broadcasting, public-service broadcasting, licensed commercial broadcasting

Alexis de Tocqueville on the role of local government, newspapers, and free association in counteracting both tyranny and individualism

1. de Tocqueville had robust insights on his visit 2. He focused on the abundance of associations 3. He was witness to the extraordinary growth of voluntary groups, which were taking advantage of the right to free association 4. Associations and newspapers fed off each other 5. Associations and newspapers brought people into the civic arena and in doing so counteracted both tyranny and individualism

Too much democracy?

1. electoral fatigue 2. Burnout 3. Cycles of involvement

Evolving institutions of public opinion

1. parties 2. media 3. advocacy and interest groups 4. opinion polls

"Peak courts"

A "peak court" is used to reference supreme courts, constitutional courts and other courts that have the final say on matters of constitutional compliance within a particular national legal system (Scheppele)

State-level resistance to implementation of federal law

A central goal of the Affordable Care Act (ACA) is to significantly reduce the number of uninsured by providing a continuum of affordable coverage options through Medicaid and new Health Insurance Exchanges. The ACA expands Medicaid coverage for most low-income adults to 138% of the federal poverty level (FPL); see this table for state by state Medicaid income eligibility levels for adults as of January 1, 2014. Following the June 2012 Supreme Court decision, states face a decision about whether to adopt the Medicaid expansion. ("Remedy and Reaction: The Peculiar American Struggle over Health Care Reform" by Paul Starr)

New technological affordances and changing institutional structure

Affordances of technology can be broadly defined as "the ways in which technology offers or supports certain things." 1. From "automation of the status quo" to "re-engineering" organizations. "Automation of the status quo" means functions are automated and the entity saves money. 2. From back-office operations to the interface with consumers, citizens. The real payoff from computers has been "reengineering organizations," that is, rethinking the whole process not just in back office but also at front door. This means doing government business online. 3. From hierarchies to networks. New technology allows the elimination of middle layers of organizations. Flatter organizations mean more networked structures. Beyond that, there has been regionalization with the formation of institutions such as the EU and NAFTA. Decisions have moved from the national to the transnational level.

Transnational law

Between the European Commission for Democracy through Law (the Venice Commission) and the European Court of Human Rights within the Council of Europe system and the European Commission, the European Parliament and the European Court of Justice on the EU side, the Constitutional Court was constantly backstopped by institutions that the government of Hungary could not control and that sided with the Constitutional Court in its assessment that there had been a constitutional coup (Scheppele)

Administrative law

Branch of law governing the creation and operation of administrative agencies. Of special importance are the powers granted to administrative agencies, the substantive rules that such agencies make, and the legal relationships between such agencies, other government bodies, and the public at large (Sunstein)

Contemporary Conception of Civil Society

Civil society as "mediating" between individuals and the state 1. Today civil society is contrasted with the state 2. It mediates between the state and people 3. It consists of voluntary, private, organizations for both private, but noncommercial purposes (e.g. clubs) and for public purposes (e.g. reform groups, political parties) 4. Some organizations do have a public purpose, while others don't

Explaining the decline in civic participation from the 1970s to early 1990s

Classic chapter groups went into decline. Their membership declined and people became less inclined to meet in the evening. This gave rise to a debate about whether civil society was in decline or whether the nature of civil society was changing. 1. Putnam's spill-over theory of social capital and civic engagement. From 1970s to the 1990s there had a weakening of civil society, a loss of social connections and social capital. There was spillover from the nonpolitical arena to the political arena. 2. Skocpol's account: from membership to management; changing political opportunity structures. Skocpol has a different view than Putnam. By the late 20th Century, the logic of organization shifted. Organizations needed staff resources. 3. Other factors: technology, social change and organizational strategies. Skocpol, however, neglects the rise of direct mail. The only way people became tied to organizations was through a check. These are essentially letterhead organizations.

Ideologies of codification

Codification: the expression of an ideology 1. Secular natural law and the Code Napoleon (French Civil Code of 1804): French wanted to abolish all prior law and limit effect of new law to new legislation on basis of statism, the glorification of the nation-state. Rampant rationalism of the time led to the idea that history could be repealed with the stroke of a pen. French law thus essentially revolutionary, rationalistic and non-technical (limited room for judges). 2. Historical foundations of German Civil Code of 1896: Historically oriented, scientific and professional. Savigny viewed law as the historically determined organic product of a people's development. To come up with ideal law, study history of German law. 3. Note similarities between the two: legislator makes law, judge must be prevented from doing so. Both bodies of law united the nation-state. (Merryman and Pérez-Perdomo)

The coming of the corporation

Corporations have begun to integrate a hitherto decentralized hospital system, enter a variety of other health care businesses, and consolidate ownership and control in what may eventually become an industry dominated by huge health care conglomerates. This transformation—so extraordinary in view of medicine's past, yet so similar to changes in other industries—has been in the making, ironically enough, since the passage of Medicare and Medicaid. By making health care lucrative for providers, public financing made it exceedingly attractive to investors and set in motion the formation of large-scale corporate enterprises. A corporate sector in health care is also likely to aggravate inequalities in access to health care. Profit-making enterprises are not interested in treating those who cannot pay. The voluntary hospital may not treat the poor the same as the rich, but they do treat them and often treat them well. A system in which corporate enterprises play a larger part is likely to be more segmented and more stratified. With cutbacks in public financing coming at the same time, the two-class system in medical care is likely to become only more conspicuous ("The Social Transformation of American Medicine" by Paul Starr)

Transformation through defeat

Evolution of health insurance proposals, 1915-1965 1. Two part explanation for lack of universal healthcare: A) Factors in the period before insurance, B) Era after the rise of insurance 2. First factor involves the absence of strong class conflict and the lack of a strong socialist movement. 3. This is the period when Socialists and labor posed enough of a threat to the existing order in Germany and England. 4. Governments sought to co-opt these challenges. Social insurance programs were adopted by conservative governments, which wanted to limit socialism's appeal. 5. These programs worried socialists, who saw their power erode. 6. Bismarck and Lloyd George both put in place social insurance programs. 7. This dynamic didn't happen in the US, because the US had enfranchised working-class people and had greater ethnic and racial divisions. 8. This lack of a challenge led employers to look at the issue of health insurance economically and they had no interest in paying for it. 9. In 1915, reformers put forward a social health insurance proposal. Opponents said this was a plot from the Kaiser of Germany. 10. This became part of the rhetoric: social insurance as a foreign idea. 11. It didn't have to turn out this way, because of values. 12. The insurance industry didn't want the government taking its business. 13. The AMA was ambivalent at first, but then joined with the insurance industry. 14. In the 1930s, the issue arose again. 15. FDR set up Social Security Committee to investigate health insurance and old-age insurance. 16. FDR worried about angering the AMA. He said let's get unemployed insurance and old-age insurance. 17. In 1938, FDR worried again. 18. In 1944, at his death, FDR's aides had a prepared a speech about universal health insurance. 19. Truman ran on national health insurance 20. The Cold War political climate made the nation inhospitable to the idea. National health insurance was painted as a foreign idea. This is when the AMA was at the height of its power. 21. There had been a steady increase in private insurance since the 1930s. 22. In the 1940s, unionization increased. Unions bargained with their employers for private health insurance during the war, when wage increases weren't allowed, and won it.

Marriage as an expression of the right to happiness

FROM ARTICLE 1. The first of my broad brush lines of continuity is the more than two century long struggle to remake marriage as an expression of the imagined right to individual happiness. 2. The "before" is a world in which men possessed property rights in children understood as necessary labor power and as valuable resources. Marriage was how the legal system marked children as owned -- possessed legally or legitimately -- just as all legal systems develop mechanisms for marking valuable property as possessed. And for the wealthy, who were the main consumers of marital law until the nineteenth century, it was also a way to define lineage and to negotiate alliances between families. Happiness (and love) had nothing to do with it. 3. The struggle to make marriage an expression of the right to happiness is a familiar one -- marked by a growing divorce rate, the undoing of the paternal right to child custody and control, as well as more general changing understandings of children and of sexuality within and without marriage. For the many nineteenth and early twentieth century Americans who made and remade marriages, quietly and often beneath any public scrutiny, the right to individual happiness did define the goals of marriage. But those goals would sometimes, more than occasionally, be frustrated by lingering restrictions on marital freedom, sometimes with truly disastrous results. FROM LECTURE 1. First and most important of the 3 engines of change leading to greater acceptance of gay marriage: right to happiness (individualism) 2. Right to happiness has powerful pull. Marriage is the foundation of individual happiness. 3. Wisconsin wrote statute in the 1970s: "If husband falls behind in child support, he can't remarry until he pays off his debt." SCOTUS declared this unconstitutional, because it interferes with right to get married, which is key to happiness. ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Marriage as a contractual relationship between legal equals

FROM ARTICLE 1. The second line of continuity is closely related: again, a two century struggle to remake marriage as a contractual relationship between legal equals. But the focus here is less on the individual, more on the dyadic relationship between husband and wife. Much of this story is contained within a history of coverture, a history of the notion that in marriage a wife's legal identity was covered over by her husband's. 2. In his book Hartog argued that it is a mistake to see coverture as the legal marching orders of patriarchy. Hartog thought coverture was better understood as a set of legal regulations -- limitations and controls -- on male power within marriage. But all that said (and fine historians disagree with my interpretation of coverture): the inequality that was marriage was fundamental, whether or not coverture was the creator of that inequality or the law's way of moderating the effects of inequality. And everyone knew, in 1820 in 1880 and still in 1950, that husband and wife meant a dyadic relationship between two unequally situated individuals. 3. The "before" that stands prior to this two century stream of struggle to undo hierarchy is much the same as the one that bounded the first stream, identified with an older world in which it was uncontroversially the case that women were a resource for reproduction and a labor resource for a household headed by a man. 4. From the mid nineteenth century on, legislators passed a variety of rules that formally moderated the inequalities of marriage -- particularly marital property reforms, earnings acts, and child custody reforms. 5. Real change in the law only came in the post World War II world, and in particular, in the 1970s and 1980s. The reasons for and the markers of that change are the conventional markers of late twentieth century history: women entering the paid labor market in much larger numbers, easily available contraception and the separation of sexuality from marriage, the power of an analogy drawn between the harms of racial subordination and those that came to be identified with sex discrimination, a woman's liberation movement successful at identifying marriage with oppression, an increasingly hegemonic legislative culture of equality and equalization that assumed it was "wrong" to give preferences to mothers in child custody law or to assume that husbands earned more than wives. With some small exceptions, marriage has been reordered as something like a partnership between imagined contractual equals. Today the default rules of marriage may produce more egalitarian effects than would a pure and free regime of contract. There are continuing substantive inequalities that lie behind the fantasy of formal equality. Real lives may or may not have changed in consequence. But marriage as an institution no longer publicly defines a relationship founded on sexual inequality. FROM LECTURE 1. Both Second Wave Feminism and integration with civil rights movement argue that inequalities of marriage are unconstitutional. 2. Ginsburg ran ACLU's women's rights unit and brought cases challenging the inequality of marriage. Ginsburg did this by undoing inequalities against men. 3. In the 1980s states removed the gendered nature of marriage laws. 4. Now even though 70% of women win custody, when there's litigation, men win custody more often. 5. Men get the advantage of being repeat players ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Property rights of married women

From the mid nineteenth century on, legislators passed a variety of rules that formally moderated the inequalities of marriage -- particularly marital property reforms, earnings acts, and child custody reforms. But it is important not to exaggerate the changes over the next few generations. Both in legal practice and in the lives of married women and men, none of those reforms changed the fundamental legal understanding of marriage as a relationship of power and subordination. And up into the mid twentieth century that older fundamental understanding of marriage still shaped the relevant documents of the law -- in treatises, casebooks, and legal opinions. And it also lived on in the self-understandings and in the behavior of married men and women. Many women and men lived lives in tension or conflict with those norms. But they did so knowingly and self-consciously, aware that their own individual marriages or relationships meant something different than the prescribed understandings and identities embedded in the legal institution. 1. Marital property reforms: allocation of assets in a marriage 2. Earnings acts: allowed married women to legally keep their own earnings and inherit property 3. No-fault divorce: divorces (dissolutions) in which neither spouse is required to prove "fault" or marital misconduct on the part of the other ("What Gay Marriage Teaches About the History of Marriage," by Hartog)

Connection between competitive party systems and judicial independence

General consensus that courts ought not to divide up resources among competing interests 1. Assume that the constitutions of democratic states are themselves democratic in that they are enacted by the will of the demos 2. Constitution thus contract between demos and the government 3. In face of classic principal-agent problem, self-enforcement comes through separation of powers 4. Conflict is good and conflict resolving agent, if demos so chooses, is a court (Shapiro)

Corporatist institutions

Gress et al. argue further that, in the long run, the corporatist structure in countries with compulsory social health insurance has protected the interests of the medical profession at least as effectively, perhaps even more so, as in the United States 1. Corporatist organizations are intermediaries between the citizen and the government as compulsory membership organizations based on occupational status. These organizations are granted statutory authority to administer government programs on behalf of their member. The corporatist nature of the German state is reflected in a web of corporatist institutions in German society. Thus, corporatist institutions also exist in the area of administration of unemployment insurance and old age pensions. 1. Sickness funds: Bismarck's government established sickness funds to handle government programs, including existing mutual aid societies, which prompted trade unions and Social Democrats to oppose compulsory social health insurance. the German medical profession derives its collective power from its early willingness to engage in collective action against both the state and the sickness funds. The majority of physicians in Germany, in sharp contrast to those in the United States, did not see any conflicts between the image of a professional and that of a worker. Consequently, the combination of environmental factors that promoted corporatist structures, an activist attitude toward protecting economic interest and professional autonomy, and the strength derived from its cultural authority led to an environment of self-regulation in Germany. In contrast, in the United States, the medical profession seemingly relied much more on its cultural authority and alliance with powerful partners to protect its self-regulation from government intrusion. 2. Health Insurance Act of 1883: compulsory social health. The raison d'être of Bismarck's strong conservative central government for introducing compulsory social health insurance in Germany was to pacify social unrest and to increase the cohesion of the social fabric of the society. The medical profession in both countries was rather ambiguous about compulsory social health insurance. A potential decrease of autonomy had to be weighed against a potential increase of income—a decision that led the U.S. profession to oppose any kind of significant reform efforts. Government sponsorship of compulsory social health insurance increased physicians' dependence on employment by the funds, but it also added strength to the physician trade union movement ("The Social Transformation of American Medicine: A Comparative View from Germany" by Stefan Gress, Stefan Gildemeister, and Jurgen Wasem)

Professional authority

How did professional institutions come into existence and how and why do they vary? These are the big questions of "The Social Transformation of American Medicine." Starr focuses on the how the rise of medical authority affected the structure of hospitals, public health and other health domains. A central concept is professional authority, which involves individuals setting aside personal judgment for that of the professional. 1. Dependence: The authority of the professions is distinctive in another regard. Professionals not only advise actions but also evaluate the nature of reality and experience, including the "needs" of those who consult them. Like the sovereign in Hobbes' Leviathan, their authority extends to the meaning of things. This point requires that we rethink what authority regulates. 2. Legitimacy: Doctors and other professionals have a distinctive basis of legitimacy that lends strength to their authority. They claim authority, not as individuals, but as members of a community that has objectively validated their competence. The professional offers judgments and advice, not as a personal act based on privately revealed or idiosyncratic criteria, but as a representative of a community of shared standards. The basis of those standards in the modern professions is presumed to be rational inquiry and empirical evidence. Professional authority also presumes an orientation to specific, substantive values—in the case of medicine, the value of health. Insofar as a practitioner violates those values or the standards of practice upheld by the professional community, the exercise of authority is understood to be illegitimate—in the extreme case, malpractice. ("The Social Transformation of American Medicine" by Paul Starr)

Institutional redesign in the late-20th and early 21st century

Idea of isomorphism, the tendency to similarity. Other ideas also explain diffusion. Diffusion is not miscellaneous - why do we get these waves of global institutional change? At any given moment, institutions vary. In any case, forces of different strength maintain institutions. Crisis sometimes discredits incumbents and their ideas. A crisis can force elites to look abroad for ideas or these elites may be pressured from abroad. Some crises are global in character. And some of these are systemic like the Great Depression. Moments like these can produce waves of change around the world. 2 World Wars and the Great Depression led to the expansion of states. Wars have state-expanding effects. There's a ratchet effect, as states don't go back to normal. World War II was followed by the Cold War. There was the Long Crisis of the 20th Century from 1914 to the end of the Cold War. This long crisis contributed to state expansion. The Great Depression discredited the market. And by the end of WWII, people felt government had acted well and had gained legitimacy. In UK and France, industry was nationalized. In France, the companies that had collaborated with the Nazis were placed in public ownership. In the UK, the state took over "the commanding heights of the economy," the crucial sectors of the economy. Nationalization, however, didn't happen in the US. Nevertheless, there was a higher level of taxes and regulations after WWII. Taxes remained high in the US to maintain military spending in the Cold War. A great deal of R&D spending in this time came through DoD spending. Regulation expanded to other areas - finance, communications. The 3 decades after WWII were full of high growth and low levels of income inequality. Social scientists at the time took this be the new normal for advanced economies. Democratic capitalism involved the mixed economy and state intervention in the market. As Karl Polanyi put it, there was a double movement: While on the one hand markets spread all over the face of the globe and the amount of goods involved grew to unbelievable proportions, on the other hand a network of measures and policies was integrated into powerful institutions designed to check the action of the market relative to labor, land, and money. The next wave of institutional change went in the opposite direction. Thomas Piketty argues in "Capital in the 21st Century" that what happened in the mid-20th century was a historical anomaly. After 1975, there was a reversion to the earlier pattern of low growth and high inequality. There was a systemic crisis in the mid-1970s. The Arab Oil Embargo in 1974 and 1975 contributed to double-digit (and rising) inflation coupled with slow growth i.e. stagflation. That period discredited governments in power at that time. Both Carter and the Labor government in England were kicked out of office. Reagan and Thatcher came in. There was a wave of conservative change across the globe. Though Europe didn't turn away from the welfare state, the welfare state there stopped growing. The Anglo-American pattern is the sharpest. 1. Return of the market: privatization, deregulation, market models 2. Reinventing government? 3. New technological affordances and changing institutional structure 4. Regionalization and globalization 5. Regime transitions as constitutive moments

Acemoglu and Robinson's institutional explanation of economic growth

In essence, some institutions are reproduced, even though they're not efficient by those in power. 1. Extractive versus inclusive institutions 2. Rulers' "fear of creative destruction" as an impediment to growth 3. Critical junctures 4. Historical legacies

Electoral democracy vs. liberal democracy

In liberal democracy, rights are respected: in electoral democracy, elections are the only means for citizens to express their preferences

The early limitations of U.S. copyright law

Initial laws for copyright were very restrictive. There was very weak protection of copyright. 1. Duration 2. Scope: Copyright law initially only covered maps, charts, and books. SCOTUS held that advertisements and news articles were not copyright. Even Uncle Tom's Cabin, SCOTUS held, was not copyright. 3. Transformative uses: Court did not restrict derivative uses of copyright. 4. The U.S. as a copyright outlaw: US didn't respect foreign authors. US printers printed foreign authors, undermining US authors. Dickens' work was much published. Books were much cheaper in the US than in England, because US copyright system favored cheap publishing

Sociology: historical continuities, increasing focus on cognitive dimension

Institutions have always played an important role in sociology. 1. In the early 20th Century, classical sociologists such as Weber concerned themselves with both formal and informal institutions. Their focus on informal institutions distinguished the field. 2. In the mid 20th century, the approach shifted and focused instead on values. The way Merton analyzed science is typical of this approach. The model to analyze institutions is simple: values lead to norms. Merton borrows this approach from Weber. This is an ideal type approach, the ideal type being an analytical construct that serves the investigator as a measuring rod to ascertain similarities as well as deviations in concrete cases. Weber was trying to come up with a tool for history and sociology to understand causality with regard to institutions. 3. Sociology changed again. This time the focus shifted to the cognitive dimension. In simpler terms, ideas about what is were seen as greater than ideas about what should be. DiMaggio and Powell's article exemplifies this approach.

Policy diffusion in a liberal-democratic moment

Mechanisms 1. Coercion 2. Imitation 3. Learning 4. Competition 5. International norms/law

Sources of increasing returns (switching costs)

Mechanisms that drive technological lock-in. For there to be increasing returns to scale 1. High set-up (fixed) costs and low marginal costs 2. Learning by doing or using: people learn how to use a particular design and acquire skills related to that design 3. Coordination effects (network externalities): the more people that use a technology, the more useful the technology becomes. Likewise, the more industries of a similar type locate in an area where certain type of labor located, the better that area becomes for that type of production 4. Adaptive expectations: expectation of which alternative is going to triumph North applies this logic to institutions and argues that choice made at one moment has long-term effects, even if they're not optimal. This lock-in is why some nations fail, as switching institutions is very difficult.

Legitimacy imperative

Organizations mimic each to gain legitimacy (DiMaggio and Powell)

plural marriage

Plural marriage in its traditional form, is more precisely polygyny: one husband who takes multiple wives. Normative monogamy best secures citizens' equal basic liberties, their equal status and standing, and their fair opportunities to pursue the good of family life. When it comes to polygamy, we need not rely on sheer moralism. Liberal and democratic justice support efforts to discourage polygamy. Around 85% of the human societies studied by anthropologists have had polygyny as a normative system: not practiced by all of course, that would be impossible, but as the preferred form of marriage for the privileged. 1. Bigamy: As mentioned above, polygamy is outlawed in the US under the rubric of bigamy. Strictly speaking, bigamy is generally understood to involve securing a second formal marriage license, typically kept secret from the first spouse. Bigamy or polygamy might be entered into by common-law marriages where those continue to exist, as in Canada and a dozen or so US states and the District of Columbia, but not in Utah 2. Polygamy: Polygamy, strictly, can refer to a marriage with multiple husbands or multiple wives 3. Polygyny: Plural marriage in its traditional form, is more precisely polygyny: one husband who takes multiple wives. 4. Polyandry: Polyandry (one wife with multiple husbands) though not completely unknown, is very rare in the historical record and in current practice. It exists in a few societies in and near Tibet today: sometimes taking the form of "brother marriage" that enables male siblings to keep the family farm intact, so that it can support both of them ("The Future of Marriage" by Stephen Macedo)

Interpretative principles (norms)

Principles that guide interpretation of a statue 1. Interpretive principles of various sorts continue to be an important part of current law 2. Sunstein concludes that the Chevron principle is plainly overcome by principles that help to ascertain congressional instructions 3. Norms calling for an explicit legislative statement before certain results may be reached also overcome the principle of deference; the reason is that those norms are designed to ensure congressional deliberation on the questions involved 4. The same is true for other norms designed to counteract governmental bias or to protect legislative processes 5. Norms against regulatory irrationality or absurdity, however, are usually defeated by Chevron, since determinations of rationality are for agencies rather than courts (Sunstein)

Institutions as efficient solutions to collective-action problems

Problem is in some cases, institutions not efficient.

Washington Consensus versus the (regrettably named) Beijing Consensus

Property rights as a precondition or endogenous result of economic development? (Lamoreaux) 1. Washington Consensus: the set of policies and institutions that officials at the World Bank, the International Monetary Fund (IMF), and other similar organizations have been attempting to impose on developing countries. Although the particular mix of policies included in these recommendations may vary somewhat from one organization to the next, proponents all agree that it is absolutely critical for developing countries to guarantee the security of property rights in order to attract capital. 2. The Beijing Consensus: this set of recommendations urges governments to play a more active developmental role and aggressively promote investment in key industries through policies ranging from tariffs and tax relief to outright subsidies. Although proponents of the Beijing Consensus do not think that property rights are an unimportant issue, they deny that secure property rights are a necessary precondition for economic development. On the contrary, they posit that protections for property will emerge "endogenously" over time as the beneficiaries of economic development become both large enough and powerful enough to demand this kind of security. Supporters of the Beijing Consensus worry, moreover, that a premature preoccupation with securing property rights might actually slow the pace of innovation by impeding the release of entrepreneurial energy needed to spur economic development. (Lamoreaux)

Separation of ownership and management; the corporation as a bureaucracy

Separation of ownership and management can be a problem, as evidenced by the Credit Mobilier scandal.

Constitutive choices in Media Realm

Some examples 1. Communication medium as government or civilian medium? 2. What is to connected to what in a postal system? 3. Because of way communications has evolved, choices made episodically at constitutive moments (e.g. revolution, rise of new technology) have large ramifications 4. These fateful decisions entrench certain type of institutions 5. And effect many things such as the level of centralization 6. Many fateful decisions made in 17th and 18th Centuries: book focuses on US with info on UK, France for counterpoint.

Two American societies

Southern slavery and its long trail of consequences 1. Slavery and the Constitution; the Civil War as a second founding: Need to take the South into account. Though the US developed as one state, it had two societies. The Civil War didn't end the two societies. The South has played a strong role. 2. Southern power from the end of Reconstruction to the New Deal: As Ira Katznelson points out in "Fear Itself," The New Deal was dependent on support from the South. When the South broke with FDR, the New Deal stopped. 3. race, ethnicity, and American institutional exceptionalism: With polarization, divisions continue to fall along the same lines.

Law, policy, and the creation of a national market

The federal government advanced national markets through 1) Courts: states not allowed to favor their own corporations. 2) Infrastructure: the federal government arranged for and financed the transcontinental railroad. The federal government gave half of US land to railway companies.

Lessig and Constraints

The law influences the other three. 1. Law: e.g. if SCOTUS upholds something, the law affects norms. 2. Markets: e.g. Stamp Act raised price of newspapers in Britain and its colonies; state subsidies to newspapers in US to the point that there were penny papers, which achieved huge circulation, and dime novels, and 10/20/30 cent theater shows 3. Norms 4. Architecture

"American exceptionalism"

The origins and strange history of an idea 1. In 1929 and 1930, coining a new term, Soviet leader Joseph Stalin condemns the "heresy of American exceptionalism" while expelling American communist leader Jay Lovestone and his followers from the Communist International for arguing that U.S. capitalism constitutes an exception to Marxism's universal laws. Within a year, the Communist Party USA has adopted Stalin's disparaging term. "The storm of the economic crisis in the United States blew down the house of cards of American exceptionalism," the party declares, gloating about the Great Depression. 2, Young socialists like Lipset and Daniel Bell became academics in the 1930s and tried to figure out why there had been no revolution and socialism in the 1930s. 3. In the 19th Century, American historians of the US were exceptionalist in spirit 4. Modern historians regard exceptionalism as a mistake 5. Some social scientists use it neutrally 6. The term is almost a ruined word, because of its part in political debate 7. Starr is in an ambivalent position. His books are about how the US developed differently than Europe. But Starr doesn't use the term "American exceptionalism."

Nondelegation doctrine

The principal in administrative law that Congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an "intelligible principle" on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation (Sunstein)

The absence of a clear public-private boundary in pre-modern systems of rule

The state as an extension of the ruler's household; patrimonial bureaucracy Sale of offices Early corporations Corporations as governments in the colonies

Traditional explanations of America as an exception

There are various theoretical approaches to understanding the neutral sense of American exceptionalism. Tocqueville said that what America exceptional was its egalitarian development. He emphasized values, ideas, and culture. 1. absence of feudal legacies; much land, not enough labor; no military rivals. Louis Hartz in "The Liberal Tradition in America" emphasized Lockean individualism. For him, the key was the absence of feudalism - there were no guilds, no titled aristocracy, no legal limitations on the sale of land. The US for Hartz was born liberal. This is hard to separate from early court decisions like the Charles River case and provision of the Constitution that prohibited the titling of aristocracy. These are institutional facts. Another set of arguments has to do with ratio of land to labor. Land in the US was abundant and cheap. In South America, there was a much larger surviving indigenous population. In the US, there was lots of land and relatively less labor, so there's openness to immigration and slavery. And the fact that there was no military rival to the US. Once again, we can't separate this from early constitutional decisions. Hamilton in the Federalist Papers notes that, if there was no union, factions would fight. No division emerged. The strategy of continental expansion was successful. Had separate nations emerged, a military rivalry would've arisen. The US was able to develop for a long time without a big military. Trying to establish a continental democracy after existence of separate states would've been tough. 2. national values (Lipset: individualism, egalitarianism, antistatism, populism). Lipset has cluster of values that are distinct to the US. Starr points out that those values point in opposite directions. You can explain anything, because those values conflict. There are two other problems. A) Lipset tends to take North and West as being embematic of America and neglect the South. Lipset does this, so his history unfolds without conflict. The South, slavery, and race are important to the development of the US. B) The US is isolated from the world in these accounts. The wider context did influence US development. 3. limitations of these explanations

Institutional analysis in sociology

There isn't really one sociological approach to institutions 1. Calculus versus culture: logic of instrumentality versus logic of appropriateness 2. Normative dimension (values and norms; internalization, commitments) 3. Cognitive dimension (maps of reality) 4. Similarities and differences between North and DiMaggio & Powell 5. Competitive versus institutional isomorphism 6. Legitimacy imperative 7. Types of institutional isomorphism and their sources

Regime transitions as constitutive moments

There was extensive institutional redesign at the end of the 20th Century, when liberal political and economic ideas had prestige. 1. Decline of authoritarianism in southern Europe, Latin America. Democracy spread from southern Europe in the 1970s to Latin America in the 1980s to the USSR in the 1990s. 2. Collapse of Soviet communism 3. Explaining outcomes: historical legacies, intl influence, transitional lock-in. There was a tremendous amount of innovation and international influence at this time. A big number of constitutions were written at this time: that is to say, lots of choices were made about the structure of government.

Critical junctures

These are times when institutions are destabilized such as in the Glorious Revolution. 1. The Black Death is a vivid example of a critical juncture, a major event or confluence of factors disrupting the existing economic or political balance in society. 2. A critical juncture is a double-edged sword that can cause a sharp turn in the trajectory of a nation. 3. On the one hand it can open the way for breaking the cycle of extractive institutions and enable more inclusive ones to emerge, as in England. 4. Or it can intensify the emergence of extractive institutions, as was the case with the Second Serfdom in Eastern Europe (Acemoglu and Robinson)

Choices of electoral rules

Translating votes into representation 1. SMP (single-member plurality) districts; first-past-the-post, winner-take-all 2. PR (proportional representation) 3. STV (single-transferable vote)

The logic of centralization

Very centralized systems of communications control can lead to top-down media. Consider the case of the loudspeaker. 1. The USSR chose to invest in loudspeakers instead of telephones. There were few telephones in the USSR until its fall. 2. That is why today there are still loudspeakers in many squares in the former Soviet Union. 3. This shows that choices about the development of media can have large ramifications.

Rise of Internet-based advocacy: a new stage in civil society's development?

We may see another shift with emergence of new media. Are lean online organizations replacing single issue groups? 1. From single-issue, staff-heavy organizations to lean, multi-issue groups: Lean online groups have advantage of quick response. 2. The new "culture of analytics"; hybrid online/offline structures: you may be involved in assessing these new methods of organizing.

Max Weber's ideal-type analysis of bureaucracy

Weber noted 2 kinds of of patrimonialism: 1. Centralized patrimonialism: empires 2. Decentralized patrimonialism: feudalism Weber has most influential account of bureaucracy: 1. Unlike patrimonial democracy, there is a separation of public treasury from private wealth of ruler 2. These are moral rules as well as technical ones: official is trained for his duty and supposed to carry it out impersonally. Putting officials on salaries improved their performance, according to Weber. 3. Weber notes this shift is caused by a drive for efficiency

Path to citizenship or legalization?

Wouldn't worry about this one