Buffalo Law Review Volume 51 Number 1 Article 3 1-1-2003 Framing the Market: Representations of Meaning and Value in Law, Markets, and Culture Robin Paul Malloy Syracuse University Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Law and Society Commons Recommended Citation Robin P. Malloy, Framing the Market: Representations of Meaning and Value in Law, Markets, and Culture, 51 Buff. L. Rev. 1 (2003). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol51/iss1/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW VOLUME 51 WINTER 2003 NUMBER 1 Framing The Market: Representations Of Meaning And Value in Law, Markets, And Culture ROBIN PAUL MALLOYt t Professor of Law and Economics, and Director, Program in Law & Market Economy; College of Law, and Maxwell School of Citizenship and Public Ad- ministration at Syracuse University. By agreement, both the author and the BUFFALO LAW REVIEW hold full rights in this work and can deal with it in all re- spects without the need of any further permissions or consents from the other party. This article forms the foundation for the approach taken in my forth- coming book LAW IN A MARKET CONTEXT: AN INTRODUCTION TO MARKET CONCEPTS IN LEGAL REASONING (2003). The book provides a full introduction to the terms, concepts, and methods of economics as used in legal reasoning. It explores the way in which economics is used in legal argument, and it includes case discussion, illustrative examples, and discussion problems. It is designed as an introduction to use with a variety of courses and as a core book for a course in contemporary jurisprudence. The article also builds on my book LAW AND MARKET ECONOMY: REINTERPRETING THE VALUES OF LAW AND ECONOMICS (2000). I wish to thank the following group participants and individuals for their help- ful feedback on earlier versions of this work: participants at the Spring 2001 Jurisprudence Workshop at Albany Law School; participants at the 2001 Re- gional Law and Society Meeting at Buffalo Law School; participants at the 2001 Law, Culture, and Humanities Meeting; participants at the 2001 Law & Society Meeting; David Brennen, John Brigham, Alan Childress, Shubha Ghosh, Wythe Holt, Emily Houh, Haricohan Islamamoglu, and Timothy Lytton. I also thank my research assistant, Nazak Nikakhtar for assistance on a number of foot- notes. 2 BUFFALO LAW REVIEW [Vol. 51 Introduction: Embracing the Humanities ....... 103 I. Contested "Signs" of the Market ............. 129 A. Self-interest and the Public Interest ...... 130 B. Framing the Market in Contemporary Film ................................. 135 C. Framing the Market in Case Opinions ..... 143 D. Framing Contested Measures of Market Perform ance ........................... 153 II. An Interpretive Framework ................ 156 A. Foundations in Law and Market Econom y ............................... 157 B. A Relationship Between Law, Markets, and Culture .................... 163 C. Mapping Exchange Relationships: A Triadic Approach ...................... 174 D. The Form of Legal Argument ............ 185 III. Some Basic Examples of Mapping Exchange Relationships ................... 193 A. Interpretive Reference: Scale, Measure, and Position ................... 194 B. Two Examples ......................... 199 1. Example One: Sexual Favors ........................ 199 2. Example Two: Car Sales ............... 201 IV. Peirce's Interpretive Model: A Further Examination .................... 203 20031 FRAMING THE MARKET A. Exchange and the Limits Of Interpretation ...................... 204 B. The Connection to Esthetics, Ethics, and Logic ....................... 214 C. Exchange Communities: Beyond Methodological Individualism ............. 220 Concluding Thoughts ...................... 223 INTRODUCTION: EMBRACING THE HUMANITIES In the classic film 2001: A Space Odyssey, a large black monolith appears on the surface of a primitive but evolving planet earth.1 The monolith intrudes upon the landscape and taunts the imagination. Its nature-its implications for the future unknown, yet it attracts the attention and admiration of ruling primates. The experience of touching and of interacting with the unfamiliar object transforms thought, influences the course of evolutionary progress, and frames the interpretive quest for meaning throughout the epic film. In much the same way the emergence of law and eco- nomics scholarship, over the past thirty years, has in- trigued the legal imagination. It has transformed the legal landscape and reframed our basic understandings with re- spect to the nature of law and society. In examining this transformation, this article explores the nature of law in its market and cultural context. It examines the way in which we, as social beings, experience the relationship between law, markets, and culture. This is a very different point of inquiry than that of traditional law and economics, which is primarily concerned with a narrative of economics as sci- ence. In contrast to this narrative, I explore economics as a cultural-interpretive vehicle for advancing particular sub- jective meanings and values from behind a veil of objectivity. Even though traditional approaches to law and eco- nomics lack objectivity and are constrained by political bias, it is appropriate to acknowledge the pioneering work of 1. 2001: A SPACE ODYSSEY (MGM 1968). 4 BUFFALO LAW REVIEW [Vol. 51 such people as Gary Becker,2 Guido Calabresi, Ronald Coase,4 and Richard Posner,5 all of whom advanced new and 2. See generally Gary S. Becker, Crime and Punishment: An Economic Ap- proach, 76 J. POL. ECON. 169, 191-93 (1968); GARY BECKER, THE ECONOMICS OF DISCRIMINATION (22d ed. 1971) [hereinafter "THE ECONOMICS OF DISCRIMINATION"]; Gary Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. ECON. 371 (1983); GARY S. BECKER, THE ECONOMIC APPROACH TO HUMAN BEHAVIOR (1976) [hereinafter "THE ECONOMIC APPROACH TO HUMAN BEHAVIOR"]; GARY S. BECKER, HUMAN CAPITAL: A THEORETICAL AND EMPIRICAL ANALYSIS WITH SPECIAL REFERENCE TO EDUCATION (3d ed. 1993); GARY S. BECKER & KEVIN M. MURPHY, SOCIAL ECONOMICS: MARKET BEHAVIOR IN A SOCIAL ENVIRONMENT (2000); GARY S. BECKER, ECONOMIC THEORY (1971); GILBERT R. GHEz & GARY S. BECKER, THE ALLOCATION OF TIME AND GOODS OVER THE LIFE CYCLE (1975); GARY S. BECKER, ACCOUNTING FOR TASTES (1996); GARY BECKER, THE ECONOMICS OF LIFE: FROM BASEBALL TO AFFIRMATIVE ACTION TO IMMIGRATION, How REAL-WORLD ISSUES AFFECT OUR EVERYDAY LIFE (1996) (a collection of essays on everyday topics). 3. See generally GUIDO CALABRESI, COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability:One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Guido Calabresi, The Pointlessness of Pareto: Carrying Coase Further, 100 YALE L.J. 1211 (1991); GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM (1985). 4. See generally Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960) [hereinafter "THE PROBLEM OF SOCIAL COST"]; RONALD H. COASE, THE FIRM, THE MARKET, AND THE LAW (1988); Michael I. Swygert & Katherine Earle Yanes, A Primer on the Coase Theorem: Making Law in a World of Zero Transaction Costs, 11 DEPAUL BUS. L.J. 1 (1998); Daniel Q. Posin, The Coase Theorem: Through a Glass Darkly, 61 TENN. L. REV. 797 (1994); Elizabeth Hoffman & Matthew L. Spitzer, The Coase Theorem: Some Experimental Tests, 25 J.L. & ECON. 73 (1982); G. Warren Nutter, The Coase Theorem on Social Cost: A Footnote, 11 J.L. & ECON. 503 (1968); Herbert Hovenkamp, Marginal Utility and the Coase Theorem, 75 CORNELL L. REV. 783 (1990); George Daly, The Coase Theorem: Assumptions, Applications, and Ambiguities, 12 ECON. INQUIRY 203 (1974); Roy E. Cordato, Time Passage and the Economics of Com- ing to the Nuisance: Reassessing the Coasean Perspective, 20 CAMPBELL L. REV. 273 (1998); Wayne Eastman, How Coasean Bargaining Entails a Prisoners' Di- lemma, 72 NOTRE DAME L. REV. 89 (1996). 5. See generally RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998) [hereinafter "POSNER, ECONOMIC ANALYSIS OF LAW"]; Richard A. Posner, Utilitarianism, Economics, and Legal Theory 8 J. LEGAL STUD. 103 (1979); Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 STAN. L. REV. 1551 (1998); RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) [hereinafter "POSNER, MORAL & LEGAL THEORY"]; LAW AND ECONOMICS: THE INTERNATIONAL LIBRARY OF CRITICAL WRITINGS IN ECONOMICS (Richard A. Posner & Francesco Parisi eds., 1997) [hereinafter "LAW AND ECONOMICS"]; RICHARD A. POSNER, ECONOMIC STRUCTURE OF THE LAW (Fran- cesco Parisi ed., 2000); RICHARD A. POSNER, ECONOMICS OF JUSTICE (1981); RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY (2001); RICHARD A. POSNER, SEX AND REASON (1992); RICHARD A. POSNER, PROBLEMS OF JURISPRUDENCE 2003] FRAMING THE MARKET 5 thoughtful ways of understanding law and legal institu- tions. They, and others, made important contributions in many areas of law, and this should be recognized even though there may be disagreement