The Role of Lawyers in Removing Economic Activity from State Supervision

Economic activity does not always depend on state-created law (to set the rules), state-funded courts (to resolve disputes), or state coercion (to enforce compliance). These well-known facts have motivated a large and inter-disciplinary literature spanning law, economics, history, sociology, anthropology, and other disciplines. This short essay is prompted by Steven Ware’s Private Ordering and Commercial Arbitration, which appears elsewhere in this volume. Ware’s article is a thoughtful and persuasive reflection on the importance of Soia Mentschikoff to the voluminous literature on private ordering, as well as a call to recognize the importance of arbitration as a tool of self-governance. I largely agree with him on these points. I do, however, want to use Ware’s discussion as a point of departure, highlighting an important question that he seems to overlook — as, indeed, does most of the private ordering literature