Faculty Scholarship Digest

Amy J. Cohen



Amy J. Cohen, Governance Legalism: Hayek and Sabel on Reason and Rules, Organization and Law, 2010 WISC. L. REV. 357 (2010).

In this contribution to a symposium on new governance and the transformation of law, Amy brings an important perspective to new governance by drawing sharp contrasts between new governance and neoliberalism. New governance is a movement to pass power from the state to “non-state actors to generate the rules and norms” that will govern them. Some scholars have responded that the new governance approach will not redistribute political power but instead will track the neoliberal effort to replace state control with market control. Amy demonstrates that, properly understood, new governance provides significant law-seeking reforms, so that new governance in fact “holds far more in common with liberal than with neoliberal legalism.”

Amy analyzes the “new-governance-replaces-state-control-with-market-control” critique by revisiting the critique of a founder of new governance (Charles Sabel) of the classic liberal Friedrich Hayek, and contrasting that with Hayek’s own writings. For example, the article recounts how both Hayek and Sabel see severe limits to government knowledge that make central solution of social problems extremely difficult. Yet Hayek urges that because individuals are limited in their abilities to generate explicit formulations about their purposes, capabilities, and skills, government should be limited to defining permissible purposes, allowing people to create “self-generated social ends.” In very sharp contrast, new governance believes people can, indeed must, make their knowledge explicit, through a process of practical deliberation, so that government, rather than simply throwing up its hands, must require accountability, transparency and deliberation at the local level. Amy demonstrates that Hayek and Sabel have analogous agreements and divergence about the nature and ability of firms, with the result that they differ fundamentally about the ability of individuals and groups to “‘become practical lawmakers, accountable to each other for their choices,’” (Sabel, yes, Hayek no). Through this and other comparisons, Amy frames new governance as in fact similar to liberal legalism, believing that “through law,” albeit law in the form of “ordinary people as practical lawmakers,” society “can regulate the affirmative ways we live together and the affirmative obligations the state assumes for our well-being.”

Amy J. Cohen, On Being Anti-Imperial: Consensus Building, Anarchism, and ADR, 8 Law, Culture & Humanities 1 (2011).

In this article, published in an interdisciplinary peer-reviewed journal edited by Austin Sarat of Amherst College, Amy juxtaposes two process-oriented movements that focus intently on consensus building— alternative dispute resolution (“ADR”) and anarchism—and considers their approaches to law-making and their consequent strengths and weaknesses as vehicles for large-scale change. Amy examines a variety of sources for her description of contemporary North American anarchism, which has been visible in some globalization protests, anti-nuclear campaigns and elsewhere. Anarchist organizing processes have also deeply influenced the Occupy movements, which came to the fore shortly after this paper was written, and one can see some of the article’s general observations playing out in that specific context.

Amy J. Cohen, The Family, the Market, and ADR, Disp. Res. 91.

This article is a part of a symposium addressing a heated debate surrounding ADR for over two decades: whether ADR processes, by privatizing state functions, undermine the rule of law. Rather than taking a side in that debate, Amy suggests that this familiar public/private argument (“the claim that ADR represents a privatization of lawmaking and . . . a shift from state to market forms of regulation and control”) oversimplifies the issues surrounding the rise of ADR by ignoring what she calls the “family/market” distinction. In fact, the article details, ADR not only “brings economic rationalities associated with the market to social domains,” it also brings “social rationalities associated with the family to economic domains,” so that “nearly all contractual exchanges” are understood as “intensely social interactions driven by emotion, empathy, trust, solidarity, and shame.”

The article traces and documents the rise of this ADR effect of seeing the social elements in economic affairs that were previously viewed as market determined. As Amy puts it, ADR redescribes the market “as a place of community, social network, and identity, not simply alienation, selfishness and greed,” so that efficiency and social connection become compatible rather than competing forces. Yet this may or may not be a good thing. Amy notes that the “distributional effects of the new social configurations are at best unclear.” While ADR successfully collapses distinctions—public vs. private; family vs. market—to integrate opposing positions, the key question, Amy contends, are the distributional effects of the resulting reordering. Attention must be paid to distribution and power.

Amy J. Cohen, Thinking with Culture in Law and Development, 57 BUFF. L. REV. 511 (2009).

This ambitious article, through a detailed interdisciplinary approach, full of both theory and ethnography, critiques the “turn to culture” in the scholarship and practice of law and development. What Amy describes as the “turn to culture” is the movement, in light of the realization that trying to impose rule-of-law in developing countries simply by strengthening legal institutions (e.g., courts and judges) was not working well, to try to teach a “rule of law culture” to the everyday users of the legal system, so that law will be expected and accepted to fairly and decisively resolve disputes. Amy argues that in trying to teach a rule-of-law culture, “neocultural interventionists” have made a critical mistake in imagining “culture, like law, as an explicit set of social rules” that govern and produce predictable results.

To develop and demonstrate this thesis, the article uses two ethnographic examples from Nepal, a country that has been the focus of rule-of-law development efforts described above. Amy demonstrates how two groups that would be the targets of efforts to accept “rule of law values, in fact have strong beliefs in the rule of law and in development.” They profess precisely the beliefs the interventionists would teach them, yet in these cases (street protesters and village women supporting insurgents) they behave in ways “that befuddle rule-of-law ends” and do little to produce recognizable rule of law institutions.

In short, the article demonstrates that instilling the desire for the rule-of-law will not achieve the reformers’ goals when not connected with close understanding of the particular politics and normative conflicts of a local situation, and, indeed, may blind reformers to the underlying conflicts that need to be resolved.

Amy J. Cohen, Dispute Systems Design, Neoliberalism, and the Problem of Scale, 14 HARV. NEG. L. REV. 51 (2009).

This article raises objections to the transportation of alternative dispute resolution techniques that were developed to avoid litigation of disputes between individuals to a context in which the disputes are between individuals and much larger entities or even to public policy disputes. Amy argues that the entity matters. “Individuals, groups, institutions, corporations, communities, societies, [and] states” she notes are very different entities and applying techniques designed for individual-to-individual dispute to these different scales without attending very carefully to those differences can exacerbate forms of social inequality that are a part of those differences in scale.

In addition, the article contends that a shift towards neo-liberalism over the past thirty years—a shift from a faith in the state to a faith in markets—has altered the playing field for alternative dispute resolution in important ways. “Treating collectives like bounded individuals with interests to pursue,” Amy contends, creates serious social risks. The article suggests that explicit attention to the scale of the actors—which would involve examining the “legal, jurisdiction, and social positions of the various entities” (Amy explains how that could be done) and case analysis of existing cross-scale dispute systems that work with attention to the how and why—is the way forward.

Amy J. Cohen, Revisting Against Settlement: Some Reflections on Dispute Resolution and Public Values, 78 FORD. L. REV. 1143 (2009).

This article takes on the unusual task of reconceptualizing a landmark work and thereby providing for rethinking of fundamental issues in the field. The landmark work in question is Owen Fiss’s 1984 Yale Law Journal article Against Settlement, in which Fiss sharply criticized alternative dispute resolution mechanisms on the ground that using individual preferences to resolve disputes instead of laws—which by definition express public preferences—would lead to a triumph of individual interests at the expense of public values. Understood as a polemic against ADR on these grounds, Fiss’s article and arguments are part of virtually all ADR texts and has provoked a cottage industry of responses.

Amy begins with an empirical demonstration that ADR can, in fact, promote public values—citing numerous examples in many different countries. Rather than stop there and say “Fiss was wrong,” Amy instead says “that’s not what Fiss should be understood to have meant.” Instead, Amy argues that Against Settlement must be understood in its particular historical context, which included the emergence of neoliberalism and a belief in privatization of state functions and individual interest maximization as social policy. Fiss’s argument, the article contends, was that “adjudication could preserve popular commitments to the U.S. welfare state, whereas ADR seemed likely to reinforce” the movements Fiss objected to.

In short, at bottom he was supporting “moral deliberation versus interest satisfaction,” and that the preference for adjudication over ADR was simply a byproduct of this fundamental issue in that particular context. The article bolsters this argument by demonstrating that in later work by Fiss in international contexts, his preference for moral deliberation led him to favor extrajudicial processes that look a lot like ADR. The result is not only to see Fiss’s work in a new light, but also to emphasize a theme of Amy’s scholarship: understanding context and considering values is a constant necessity in analyzing legal frameworks.