School of Law
State University of
New York at Buffalo
"Private" Law Making
draft -- subject to change]
The goal of the seminar is to address the following questions in the context of
emerging non-governmental transnational regulatory institutions: Where do laws
come from? How is a social norm or a widely held expectation made into law? How
do non-governmental actors convert their social objectives into binding laws?
For well over a century most people have assumed that official actions by nation
states constitute the law. Over the past decade, however, many developments have
once again put that assumption in question. This seminar uses readings on legal
and social theory, as well as on recent substantive developments in the areas of
cyberspace regulation, commercial arbitration, and environmental standard
setting, to explore the changing role of non-governmental actors in law making.
Of course, this discussion raises the question of whether the fundamental nature
of law might be undergoing change in the 21st century.
This will be a true seminar. All members will read assigned materials in
advance of seminar meetings and critically discuss their conceptual framework,
empirical accuracy, and practical implications. The instructor will serve as a
discussion leader posing key questions and helping the group to examine their
implications, but students will share responsibility for creating an
enlightening and insightful discussion. To promote interdisciplinary
cross-fertilization, the seminar is open to law, honors, and graduate students
(with permission of the instructor).
Each member of the seminar will:
- complete required readings prior to seminar meetings (approximately 100
pages per week)
- engage the readings actively and look for underlying themes and problems
- attend all seminar sessions (absent serious illness or emergency)
- participate actively in class discussions
- present critical analyses of selected readings to the seminar
- write a research paper on private law making in cyberspace, environment,
international business or another area chosen with the permission of the
The readings may change somewhat as the seminar proceeds.
Required readings that are not hyperlinked will be available either outside Room
718 or from the Law School Bookstore. Recommended ones are on Reserve in the Law
Tues, Jan 28
Outline of the course, the basic questions to be examined,
and expectations of students.
Tues, Feb 4
The Fundamental Nature of Law and Law Making
What features must something have to be described as law? What are the different
kinds and sources of law? Why do societies privilege some kinds of law over
- Hart, H.L.A. (1994) "Law as the Union of
Primary and Secondary Rules," Chapter V in The Concept of Law (2d Ed.)
- Galanter, Marc (1981) "Justice in Many Rooms:
Courts, Private Ordering, and Indigenous Law," 19 Journal of Legal
Pluralism 1-47 (focus on Sections II and III, pages 17-34)
- McDonald, Roderick A., (1998) Metaphors of Multiplicity,: Civil Society,
Regimes and Legal Pluralism." Excerpt from 15 Ariz. J. Int'l & Comp. L.
Tues, Feb 11
Recommended (Recommended readings are intended to help
students delve deeper into an area than the core readings. Those that are not
freely downloadable are available at the Law Library Reserve Desk.):
- Rehbinder, Eckhard, (2003) "Forest Certification and
- Coglianese, Cary and Jennifer Nash (2001) Regulating
from the Inside: Can Environmental Management Systems Achieve Policy Goals?
Washington, DC: Resources for the Future.
- Bass, Steven and Markku Simula (1999) "Independent
Certification/Verification of Forest Management," (background paper prepared
for the World Bank/WWF Alliance Workshop, Washington, D.C., November 9-10,
- Hansen, Erik, Keith Forsyth, and Heikki Juslin (2000)
"Forest Certification Update for the ECE Region," UNECE.
- Meidinger, Errol (2001) "Environmental Certification
Programs and U.S. Environmental Law: Closer than You May Think,"
Environmental Law Reporter, 31:10162-10179.
- Meidinger, Errol (1999) "Private Environmental Regulation, Human Rights
and Community," Buffalo Environmental Law Journal, 9:123-237.
Tues, Feb 18
First part of class: choose topics
- Meidinger, Errol (2001) "Emerging Trans-Sectoral Regulatory Structures in
Global Civil Society: The Case of ISEAL (the International Social and
Environmental Accreditation and Labelling Alliance)," paper presented to the
"Tools for Regulation Panel," Joint Annual Meetings of the Law and Society
Association and the Research Committee for the Sociology of Law, July 4-7,
International Commercial Arbitration
Required (copies of readings that are not downloadable will be available
- Dezalay, Yves and Bryant Garth (1995) "Merchants of Law as Moral
Entrepreneurs: Constructing International Justice from the Competition for
Transnational Business Disputes," Law & Society Review 29:27-54.
- Teubner, Gunther (1997) "'Global Bukowina': Legal Pluralism in World
Society," in Teubner, ed., Global Law Without a State, Aldershot,
England: Dartmouth Publishing, pages 3-28.
- McConnaughay, Phil (2000) "The Scope Of Autonomy in International
Contracts and its Relation to Economic Regulation
and Development," University of Illinois Law and Economics Working Papers
Series, Working Paper No. 00-10. (download from
- Drahozal, Christopher R. (2000) Commercial Norms,
Commercial Codes, and International Commercial Arbitration, 33 Vand. J.
Transnat'l L. 79
- Dezalay, Yves and Bryant G. Garth (1996) Dealing in
Virtue: International Commercial Arbitration and the Construction of a
Transnational Legal Order, Chicago and London: University of Chicago Press
(for those planning to do research in the area, the whole book is worth
Tues, Feb 25
- Lessig, Lawrence (1999) Code and Other Laws of Cyberspace, Basic
Books, preface through 108 (you should consider buying the whole book; it's
available for $12.00).
- Weinberg, Jonathan (2000) "ICANN and the Problem of Legitimacy," 50
Duke Law Journal 187-260.
- Weinberg, Jonathan (2001) "Geeks and Greeks,"
- Kesan, Jay P. and Rajiv C. Shah (2001) "Fool Us Once Shame on You -- Fool
Us Twice Shame on Us: What We Can Learn From the Privatization of the Internet
Backbone Network and the Domain Name System," (download from
- Perritt, Henry H. (2000) "The Internet and Public International Law: The
Internet is Changing the Public International Legal System," 88 Kentucky
Law Journal 885- 954.
Paper Topic Choices Due: write a paragraph describing (1) the question
you intend to address, (2) what materials you expect to consult, and (3) how you
expect to analyze them.
Tues, Mar 4
The Global Social Context
Wallach, Lori M. (2002)
Accountable Governance in the Era of Globalization: The WTO, NAFTA, and
International Harmonization of Standards, Kansas Law Review, 50:823-865
Taylor, Lucy (1999)
Globalization and Civil Society -- Continuities, Ambiguities, and Realities in
Latin America, Indiana Journal of Global Legal Studies, 7:269-295 (1999)
- Evans, Peter (2000) "Fighting Marginalization with Transnational Networks:
Counter-Hegemonic Globalization," Contemporary Sociology 29:230-241
- Braithwaite, John and Peter Drahos (2000) Global Business Regulation,
Cambridge University Press. Particularly chapters 1-6 and 26.
- Picciotto, Sol (1997) "Networks in International Economic Integration:
Fragmented States and the Dilemmas of Neo-Liberalism," Journal of
International Law and Business, 17:1014-1056.
- Lipschutz, Ronnie (2001) "Regulation for the Rest of Us? Activists,
Capital, States, and the Demand for Global Social Regulation"
Tues, Mar 18
Meet to discuss reseach
Tues, Mar 25
Free for reseach
Tues, Apr 1
Free for research
Free for research
Free to finalize papers.
May 5, 3:00 pm, Final Papers Due in Room 718
Last Modified 02/26/03