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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.

This chapter evaluates India's chances of achieving an economic growth rate of more than nine percent under its Eleventh Five-Year Plan. While the Indian economy is going through its most remarkable phase of growth, lack of proper economic infrastructure such as roads, airports, and communication may turn out to be the biggest roadblock in sustaining this growth. This chapter comments on the government's use of public–private partnership (PPP) route for infrastructure creation. It also identifies some areas or sectors such as energy sector, education, business laws, and corporate governance that have the potential to push the economy on either side of the tipping point.

‘Commercial law’ is often used in a loose, broad sense, equivalent to ‘business law’, embracing not only the law of commercial transactions but also other topics, such as company law. In French law, droit commercial is understood in this wider sense. It is a vast domain, covering a multitude of diverse topics: sale, hire, banking, insurance, partnership and company law, commercial leases, competition law and more. This chapter looks at a number of fundamental issues: the place of commercial law within the general scheme of French private law, its scope and, in general terms, the practical implications of its application. It then considers a limited number of specific topics: the persons involved in commerce, the special characteristics of the property they employ in their business, and the regime applied to businesses in difficulty.

This chapter focuses on the accomplishments of the decade-long reform of unincorporated law. It identifies three essential features involved in the US experience. It argues that norm entrepreneurs proceeded without a coherent, underlying theory to guide their experimentation. They acted because it was in their power to do so and not because of any consensus-based justifications.

This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and constitutional law. More closely, it examines the level of protection offered company interests by the European Convention on Human Rights (ECHR). The book thus offers a study of the doctrinal response developed in Strasbourg by the European Court of Human Rights to claims for ECHR protection submitted by or on behalf of companies. It is important to appreciate that under the ECHR, the notion of companies enjoying rights protection is not disputed in principle: the Court does not per se regard corporate litigation with suspicion. This does not mean, however, that the protection of corporate interests is plain sailing in terms of ECHR law. The particular features of the corporate person and the interests pursued by such, combined with the particular structure of the ECHR and its international supervision, sometimes pose interpretative and practical challenges in terms of ECHR guarantees.

For many of our most innovative companies, corporate law is difficult to define. These companies—whose profits flow in part from regulatory arbitrage—are subject to a complex framework of state, federal, and local laws, the overlap of which can create inconsistency and ambiguity. Using marketplace lending as a case study, we document extraordinary uncertainty faced by many of America’s most cutting-edge businesses. Marketplace lenders built their business on the longstanding assumption that they were exempt from state usury law because marketplace loans are originated by state or nationally chartered banks, which have enjoyed federal preemption of state usury caps for a century. But in a 2015 ruling the Second Circuit suddenly concluded that only loans held by banks enjoy preemption from state usury law, reactivating interest-rate caps for billions of dollars of loans and decreasing the supply of credit for higher-risk borrowers. We argue that this type of legal uncertainty is increasingly prevalent for American corporations and can stifle innovation, and that the true challenge for the corporate lawyers of the future will be to convince the wide range of actors now producing business law to produce predictable and consistent rules for the firms they seek to govern.

Neurointerventions of various sorts open up options that law can have a hard time dealing with. While the effects of neurotechnology on criminal law have been extensively investigated, the effects on business law are just as important. New and potential technology could allow for more powerful methods of job candidate screening, monitoring, and performance improvement than the conventional methods of interviewing, training, motivational programs, and free caffeine dosing in the staff break room. This chapter examines the legal, social, and moral issues involved in workplace neurointerventions, showing how different the business law context is from the criminal law context, how a different set of rules and expectations govern employment relationships, and how both employers and employees could be motivated to use neurointerventions, and we describe a basic set of different policy options for how to regulate such technology that vary according to what social values are maximized.

This chapter in Business and the Roberts Court examines the Roberts Court’s approach to environmental cases. Overall, business interests have won more cases than they have lost in the Roberts Court. Most of the business wins occurred in relatively narrow cases that had little effect on preexisting law, while some of the losses are quite dramatic and will have profound effects on economic interests. Whether or not the Court is sympathetic to business interests in environmental cases, it appears to have been sympathetic to government interests, but quite unsympathetic to environmentalist litigants and reluctant to expand litigation opportunities in environmental cases.

This chapter continues the ethnographic account of the private university known as ‘MGU’ introduced in the previous chapter. It starts by explaining the most major reform project undertaken at MGU in the mid-2000s: the establishment of a graduate law school. It sets this story in the context of the history of law education in Japan and outlines the system of new graduate law schools introduced in 2004 before telling the story of the establishment and disestablishment of the MGU Law School itself. It gives an outline of the new graduate law schools and then tells the story of the establishment and disestablishment of the MGU Law School. It concludes that in the case of MGU, it was almost certainly better institutionally that the university had opened a law school rather than it had not, even though it closed after only a few years. The rest of the chapter looks at the other reforms which MGU introduced from the mid-2000s. These included reductions in admissions quota, full-time staff and fees, and the rationalization of facilities. Teaching and the student experience were taken much more seriously by the academic staff. Changes were also made in courses and course names. These and other reforms aside, there was also a significant generational shift within MGU’s owning family, as a new generation emerged and as the family itself sought to lead by example in the reform process. Overall, these responses helped MGU to survive the severe challenges it had faced in the mid-2000s and set if on an apparently stable course for the 2020s.

The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the public at large. This introductory chapter to Business and the Roberts Court surveys commentary on the Supreme Court’s approach to business-related cases, considers what it could mean for the Supreme Court to be probusiness, and summarizes the book’s chapters. Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests.

This chapter discusses changes in American law in the twentieth century covering land use, environmental law, intellectual property, regulation of business, and business law. The twentieth century was a century of land-use controls. An important legal invention was zoning. The central idea of zoning is to divide a town or city into zones or segments and to regulate what kinds of land use are allowed in each of these segments. Some zones will be limited to one-family houses, others will be open to apartment buildings, stores and offices, and even to factories. New York City was a pioneer in the zoning movement. After the state passed an enabling act, New York City adopted the first comprehensive zoning ordinance (1916). Zoning soon spread to city after city. By 1930, it was pretty much the rule in both large and small cities and in the suburbs as well.

This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and they also prevail on the merits more frequently. This chapter documents the extent of the modern bar’s domination of the Court’s docket, arguments, and rulings and considers the extent to which business interests that serve as the bar’s primary clients are enjoying heightened success before the Court as a result.

This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases exploring whether there is an identifiable “probusiness” trend. While such analyses are not conclusive, due to the potential for selection bias, business interests have fared reasonably well in the period studied. The “win rate” of the Chamber of Commerce is slightly greater than that of the Solicitor General’s office, and yet when the Chamber and the Solicitor General have disagreed on the merits and the government has participated as amicus curiae, the Chamber has lost more than it has won. Interestingly, as the Obama administration has less frequently embraced the interests of business, the Supreme Court has less frequently embraced the views of the Solicitor General in business-related cases.

This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases in comparison to its predecessors. At an aggregate level, the empirical analysis in this chapter indicates that the Roberts Court can be accurately characterized as business friendly. It would not be accurate to characterize the Roberts Court’s record as a sharp break from the past. To the contrary, the record is best viewed as a continuation of a long-term trend that was initiated by Nixon’s appointees to the Court, fully entrenched by Reagan and Bush’s appointees, and accepted by Clinton’s appointees. In this sense then, the Roberts Court’s predisposition toward economic and business interests is best explained by understanding the relationship of the Court to the broader political regime within which it operates and where it is situated in political time.

No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission. While controversial, Citizens United may not be evidence of a “probusiness” bias on the Court. Rather, this chapter in Business and the Roberts Court suggests that Citizens United embodied and applied classic First Amendment principles and is but one part of a larger pattern of deregulatory decisions in the campaign finance context. Citizens United was a landmark decision for free speech and political freedom in our democracy, and any benefit to business was incidental.

The development of modern diagnostic neuroimaging techniques led to discoveries about the human brain and mind that helped give rise to the field of neurolaw. This new interdisciplinary field has led analytic jurisprudence and philosophy of law in novel directions by providing an empirically informed platform from which scholars have reassessed topics such as mental privacy and self-determination, responsibility and its relationship to mental disorders, and the proper aims of criminal law. Similarly, the development of neurointervention techniques that promise to deliver new ways of altering people’s minds (by intervening in their brains) creates opportunities and challenges that raise important and rich conceptual, moral, jurisprudential, and scientific questions, and help us to tease apart analytic jurisprudence from synthetic jurisprudence. This volume advances the field of neurolaw by investigating issues raised by the development and use of neurointerventions (actual, proposed, and potential) to regulate human mental capacity, and those raised by the law’s regulation of the use of neurointerventions.

This chapter in Business and the Roberts Court examines the Court’s preemption decisions. These decisions do not consistently favor business interests and seem to follow a traditional script of dual federalism. When the Court enforces federal statutes having the purpose of breaking down regulatory barriers to freedom of contract, it plays a historically familiar and judicially congenial role of protecting a national market from state burdens on commerce. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime. This categorization, more than any reductionist label, best explains the Roberts Court’s preemption decisions to date.