ABSTRACT
Since at least the late 1970s, popular political and economic debates in the United States have often been framed in terms of a choice between ‘government’ and ‘the market’. In addition, debates have often assumed that ‘the market’ is associated with freedom while government ‘regulation’ or ‘interference in the market’ constitutes oppression.
This article begins by making the familiar observation that the distinction between ‘government’ and ‘the market’, at least when taken at face value, makes no sense. Even idealized laissez-faire markets are creatures of the state and its market-structuring laws, including criminal law and the laws of property, contracts, and torts. Far from being spontaneous natural orders, markets are changeable, politically determined legal constructions. Moreover, there is no single set of rules that constitutes ‘the free market’. Markets can be designed in any number of ways, often with relatively predictable advantages and disadvantages for different groups. How a state designs markets is inevitably a matter of political choice. There is no natural or politically neutral baseline …
Brazeal, Gregory, Markets as Legal Constructions (January 7, 2023), University of Cincinnati Law Review, volume 91, 2023.
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