I agree with your characterization of that socio-economics panel. I'm no libertarian, but I found that panel too reflexively pro-regulation for my tastes. There seemed to be no discussion of whether, even if markets are imperfect, government can do anything to improve the situation.

That's ironic, because (a) their whole premise was that institutions such as corporations have many endemic flaws, (b) yet they seem to assume that governments would be immune from these problems that befall large institutions. I don't always buy the free-marketeer argument that private institutions are always superior to government institutions -- in part because when a private institution gets big enough, it can suffer from the same diseconomies of scale that we see in government institutions. But I certainly don't agree with their unstated reverse assumption that government institutions surely will be effective at redressing the problems of private institutions.

Nicely stated, Scott. Comparative institutional analysis rises again.

As someone caught in no-man's land between the two camps, I appreciate and largely agree with your post. One quibble: I don't agree that "free marketeers tend to favor the descriptive." Indeed, I suspect the phrase undermines itself--"free marketeers" is a highly normative concept, and that normative commitment to markets pervades much (most?) work in mainstream corporate law scholarship, even work that on its face is "descriptive."

I think I also dip in and out of the two camps, and I was disappointed that the "Law & Socioeconomics" panels were opposite the "Business Orgs" & "Securities Laws" panels, with very little on business the other 2 days. Why did the organizers assume that there would be no overlap? No dialogue can get started if the camps are put in separate rooms.

I also think that contractarianism is a normative concept and not a purely descriptive concept.

Lastly, a year and a half ago I had hopes of a blog populated by some of the people that populate the socio-economics panels so that there could be blogospheric dialogue, but alas that did not happen.

Like Brett and Christine, I too think that both camps have merit, and that there should be a dialogue between them. I also agree with Larry Ribstein in wishing good things for the young AALS section on Agency, Partnership, LLCs, and Unincorporated Associations. Like Larry, I focus my scholarship on this emerging area and think that it presents the opportunity for highly innovative and interesting academic work.

Take the following sentence as an addendum to original post after reading Brett and Christine on the normative-descriptive divide: "Progressives do not have a corner on hyperbole."

"Progressives do not have a corner on hyperbole."

True enough, but they do seem to have a dominant market share.

I'm hardly reflexively anti-regulation. I have written a fair bit about why securities markets depend on good legal and market institutions, and done empirical work suggesting that mandatory regulation sometimes can increase firm values (in Korea, for example). The field of "law and finance," in which I locate much of my recent writing, is all about those interactions.

At the same time someone who doesn't understand markets and incentives, what economic problems they solve (and how well), what problems unregulated markets don't solve, and what we can realistically expect from efforts by imperfect government actors, with decidedly imperfect incentives, when they seek to fix market problems, shouldn't be writing about regulation of corporations, other business entities, fiduciary duty, and the like. Ditto for someone who isn't willing to read and deal with the available empirical literature on successes and failures in regulating corporate goverance, some in law journals, but much of it in economics and finance journals.

Sadly, in my view, both aspects of this pejorative description (doesn't understand markets, doesn't read and grapple with data) applies to a fair number of the practitioners of the "progressive" approach to these subjects. This leads me to ignore their writing, and unless the writing changes, I will continue to do so.

Well done, Bernie. In re-reading my original post, I notice that it seems to place the blame for the lack of "real engagement across ideological boundaries" at the feet of the free-marketeers, but you are right to point out the progressives have an obligation to attend to markets and to empirical studies on corporate governance. Indeed, it was precisely this failure that caused me so much agitation (mostly suppressed in my post) at the Section on Agency, Partnership, LLCs, and Unincorporated Associations.

Apropos of Bernie's comments, I was speaking with someone intent on entering the law teaching market (in corporate law) today. The candidate acknowledged that some getting up to speed on the literature would be necessary, but when I mentioned the L&E literature, the candidate dismissed it because the candidate did not buy in to L&E. I said, "I don't think you understand. . . ."