Aesthetics of Commercial Law - Domestic and International Implications
Abstract
Forces entirely apart from rationality shape commercial law. A turn to aesthetics directs attention to the non-rational elements at play in this law. These suppressed elements privilege commercial actors by deterring consideration of legal limitations on commercial activity that could be socially desirable. Problematic features of commercial law take two different forms. First, there are types of commercial transactions encouraged by U.S. commercial law the very structures of which raise fairness and efficiency concerns. Second, the sheer volume of commercial transactions and the lack of legal controls requiring market actors to internalize ensuing economic, social and environmental costs raise serious questions about the desirability of laws designed to encourage perpetual escalation of commercial activity. These problematic aspects of commercial law invoke difficult questions. How do we determine what levels and forms of commercial activity are optimal? If commitment to a more balanced approach to commercial activity were possible, who would be helped, who would be harmed, and how? The aesthetics of commercial law deters engagement with these questions by informing certain non-rational, pre-reflective dispositions that enable common refrains against reform. Much of contemporary commercial law scholarship employs economic modeling or empiricism. Empirical findings or successful economic models, however, do not automatically become fruitful bases for law reform. Aesthetic elements of commercial law affect the capacity to translate the results of analytical approaches (quantitative or otherwise) into law reform. Recognizing the aesthetics of commercial law is crucial as professionals applaud U.S. commercial law's facilitation of commercial activity here and superiority for attracting investment abroad.