When Professor Solum writes that an article is “Highly recommended. Download it while it’s hot!” you should probably read it. I would second Professor Solum endorsement Adrian Vermeule’s new article on the The Invisible Hand in Legal Theory. From the essay:
Theorists have offered invisible-hand justifications for a range of legal institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure – a claim that is empirical but pragmatically unverifiable.
I have cited a lot of Vermeule’s work in my article on the Lemon Test and legislative history, and found his reasoning to be superb. I had thought I came up with an original idea, only to find that Vermeule had written about it in the Chicago Law Review several years prior. Oh well.
Check out this article, let me know what you think.