Yale Law School
What can and should be the role of private groups in creating and maintaining law? What can and should be the relationship between law-giver and law-receiver? These fundamental questions haunt each of the essays that make up Corporate Lawbreaking and Interactive Compliance (hereinafter Corporate Lawbreaking).' These questions, though not the explicit focus of the book, are questions to which the essayists and editors of this book are speaking whether they realize it or not. Seen as a series of discussions on the role of non-state groups in creating and maintaining law, this book is provocative and worth reading. Some of the proposals in this book, if taken seriously, would radically transform our legal system and could transform our democracy. But the book does not self-consciously set out to describe the role of private groups in maintaining law or the relationship between law-giver and law-receiver. It sets out to do something else-to ground with concrete examples a theory that the editors articulated in an earlier book. Judged in light of its professed goal, the book is less successful.
Given my assessment that the book is most interesting in what it hints at rather than what it intends, I will spend more time discussing the hints rather than the message. But in fairness to the editors, Part I of this review discusses what the editors set out to do, provides some examples of where they succeed most, and includes an explanation of why I believe that they ultimately fail at their self-assigned task. Part II turns to the provocative questions the book raises: what is the appropriate role of private groups in creating and maintaining law and what is the appropriate relationship between law-giver (the government) and law-receivers (the governed)? To understand how this book suggests changing the usual relationship between the government and the governed, we need a framework to help us understand both the relationship we usually assume is present and the range of alternative relationships that are possible. Part III lays out such a framework. Part IV then uses this framework to examine more closely the implications of the various contributions in the book.
Susan P. Koniak,
Whose Law Is It Anyway?
Yale Journal on Regulation
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2153