Saturday, September 13, 2008

Two Great Escapes Into Commercial Law History

Photo by Kivanç

I guess I'm just an escapist at heart. If I'm not escaping to some foreign locale to compare its commercial law with ours, I'm escaping into history to compare yesterday's commercial law with today's. This weekend, I am escaping with two marvelously interesting papers on the history of commercial law.

The first is now one of my very favorite history papers, by a new professor at Texas Law School, Emily Kadens, who is quickly becoming one of my favorite historians. I can't do the paper justice here, but briefly, in Merchants, Kings, and the Codification of Commercial Law, Kadens challenges the conventional story of collision and opposition between the law merchant and the beginnings of state regulation of commerce. In fact, Kadens reveals in her lucid and incisive way, merchants might well have been all-too-happy to see state regulation impose a bit of certainty and stability on a system of customs that, even if they had worked for trading within confined networks earlier, they were ill-suited to governing the burgeoning inter-network (proto international) trade. Kadens's wonderfully clear description of the operation of bills of exchange shows that she is not only a talented and entertaining historian, but a gifted commercial law professor. This paper is a strong buy! Besides, the audience of this blog must contain that small subset of people who might have a special interest in a paper about bills of exchange in the 17th century.

The second is one I just discovered, thanks to Mary Dudziak's fabulous Legal History Blog. Earlier this week, Daniel Klerman uploaded his paper to SSRN, entitled "The Emergence of English Commercial Law: Analysis Inspired by the Ottoman Experience" (hence the picture I chose to accompany this post). With a title like that, you can't go wrong! Klerman contrasts the development of English and Ottoman commercial law to suggest that the former's approach is a better model for modern reformers interested in stimulating domestic engagement with global trade (my extrapolation from the intro--not explicit in the paper). English law supported the implementation of special institutions (esp. mixed foreign-domestic juries and streamlined debt collection) that offered equal benefits to foreign and domestic traders alike, jump-starting the economy on a level playing field and integrating strong foreign trading practices domestically. Ottoman law, on the other hand, created special institutions (especially dispute resolution mechanisms) exclusively for foreign merchants, ring-fencing the foreigners off from the locals and putting domestic traders at a competitive disadavantage. Klerman's consideration of why English and Ottoman law headed in different directions is fascinating.

Happy reading!

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