Samuels Legal Economic Nexus part 3

 In part 3 of the legal economic nexus, Samuels gets to the heart of the matter by applying his new approach or thinking about implications.  This is arguably also the trickiest part of the paper for him to navigate.  The section starts with a declaration of the need for “objectivity”.  Of course, there will be many who say this is an impossible standard for humans to achieve as every person brings some set of experiences and bias to how they do the work and even the questions they ask or things are interesting to answer.  Certainly, there are a number of institutional economists who would claim that the subjective-objective dichotomy is a false and impractical one. Leaving those arguments aside for the moment, let's explore what Samuels was trying to do here.

His main point is he wants to move beyond the power contestations of lawyers or economists as they try to influence the nexus.  He states that there are those who would pretend to be objective but in fact are perhaps subtly trying to influence the nexus and the outcomes from the nexus to their preferred position.  On page 1574, Samuels makes some key observations about the nexus including: 1) it is a human artifact, 2) it is both deliberative and non-deliberative, 3) it is ubiquitous and inevitable with every choice we make or do not make, 4) nothing is natural and conversely and 5) certain choices are not distortions or inefficiency.  These observations help us understand the framework that Samuels was building and would sue throughout his work.

The paper ends with two subsections.  One subsection is on the famous Miller v. Schoene case which has already been explored in this blog.  A new point here is that Samuels concedes we need to use the words “economy” and “polity” even though he sees this as a crucial problem in how we frame problems and solutions.  He points to the fact that all the parties in this case contested the essential meaning of the nexus and that neither party should claim that their pathway was the natural or efficient one.

The final subsection is about governance as a process.   Here we see Samuels channeling John R. Commons and his work on working rules and going concerns.  It is the governance process of deciding disputes, whether it be in a family, corporation, church, nonprofit or a governmental entity that this nexus is worked out.  Some will argue that these rules may not stick or may not be followed and so do not constitute the economy or at least not entirely.  Samuels argues at the end that the recognition of the nexus will help parties understand their position and argue for their position.  One could easily imagine that Samuels felt particularly that weaker interests needed this bolstering that they did not have to accept the arguments of the efficiency of the status quo or the rich and powerful over others.  The nexus is where both the economy and polity are controlled and this control matters.