Tuesday, November 28, 2017

Cuéllar on Three Pivotal Transitions in American Law & Society Since 1886

Mariano-Florentino Cuéllar, Stanford Law School, has posted Adaptation Nation: Three Pivotal Transitions in American Law & Society Since 1886, which is forthcoming in volume 70 of the Oklahoma Law Review:
Drawing on perspectives from administrative law as well as the study of law and development, this article analyzes three important transitions in American law and society since the Chicago Haymarket Square Riot of 1886. First, between the Haymarket Square Riot and 1950, the United States made great strides in the use and capacity of its institutions. At the outset, Americans lived in what could be reasonably described as a developing country constrained by violent labor conflicts, fragile institutions, and economic uncertainty. By the end of this period the United States was a preeminent global power making routine use of courts and agencies to resolve societal disputes. Second, in the latter half of the twentieth century and the early twenty-first century, Americans saw their country experience major demographic changes arising from the United States' distinctive approach to immigration. To implement its distinctive approach to mass immigration following the 1965 Immigration and Nationality Act amendments, the United States relied on elaborate mechanism for administrative adjudication and enforcement on a massive scale, as well as a more decentralized mechanism of regionally-based integration that could further both social cohesion and geopolitical aims. And third, the United States now faces emerging governance and regulatory challenges as technological developments involving networked computers and so-called “artificial intelligence” increasingly affect society and the nature of work. Once associated with the public contracting infrastructure used to support defense-related research and development, this transition is now catalyzing interest in regulatory and liability-related frameworks to govern the division of responsibility between human decision-makers and machine intelligence.

I reflect on some of the similarities and differences associated with these transitions. I place them in the context of related legal developments, and assess what they reveal about the United States’ historical legacies and arrangements for pluralist governance. Ultimately, an understanding of these transitions provides not only indispensable context for the United States’ early twenty-first century institutional dilemmas, but also an appreciation of how a pivotal geopolitical power adapted to forge--however imperfectly--legal arrangements incorporating norms of non-arbitrariness in different settings where law affects development.

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