Irrelevant externality angst.

Due to the high transaction cost that would be necessary for large numbers of people to negotiate with each other, even those who are usually sanguine about private markets become reserved when externalities affect large populations. The distinction between private and societal interest is well understood for pecuniary externalities, but neglect of Buchanan and Stubblebine’s article Externality has left the same distinction widely unrecognized for non-pecuniary ones. If only a few parties on either side experience a relevant externality private interactions can appropriately internalize costs and benefits across the entire population. Regardless of the perceptiveness of legal and cultural institutions in placing entitlements, and regardless of the level of transaction cost among the universe of the affected, a surprising number of externalities will readily fix themselves. The desirability of corrective intervention is much too easily conceded.

Irrelevant Internalities, Irrelevant Externalities, and Irrelevant Anxieties

Due to the high transaction cost that would be necessary for large numbers of people to negotiate with each other, even those who are sanguine about private markets become reserved when externalities affect large populations. The distinction between private and societal interest is well understood for pecuniary externalities, but neglect of Buchanan and Stubblebine\u27s article Externality has left the same distinction widely unrecognized for non-pecuniary ones. If only a few parties on either side experience a relevant externality within Buchanan and Stubblebine\u27s relevant/irrelevant distinction, private interactions can appropriately internalize costs and benefits across the entire population. Regardless of the perceptiveness of legal and cultural institutions in placing entitlements, and regardless of the level of transaction cost among the universe of the affected, a surprising number of externalities will readily fix themselves. The desirability of corrective intervention is much too easily conceded

Facets of sovereignty. Institutions that Spur and Institutions that Retard Tribal Development.

That so many of their assets continue to be held in governmental trusts under outdated policy rationales creates great difficulty for indigenous peoples. But restoring control of those assets to their rightful owners will impose daunting responsibilities on judiciaries. Exchanging assets for a residual share of returns from a joint venture exposes one to shirking by co-investors. Judiciaries known reliably to penalize those who renege on commitments help investors persuade others to sink complementary assets in promising projects. But a court is an arm of the sovereign. Across history and geography justifiable rulings adverse to sovereigns have so often been honored in the breach that private parties are especially leery of sovereigns as co-investors. To attract assets into its realm a sovereign may thus invest in a reputation for abiding by waivers of sovereign immunity, or rely on a still stronger sovereign to bond its waivers. Reputations arise from observed court successes by aggrieved co-investors when their suits against the sovereign are meritorious. But many tribal reservations are small and poor, have offered few investment opportunities, and hence possess thin legal histories. At the same time, investors are skeptical that courts of more powerful sovereigns such as Canada and the United States dependably bond tribal waivers. Thus tribes often must pay investors high risk-premiums, resort to costly tribal ownership, or even forego promising opportunities altogether. The Sovereign’s Paradox refers to the difficulty that an entity with power to compel involuntary outcomes has in negotiating voluntary ones. This chapter explores ways to ameliorate that Paradox and thus improve returns from reservation assets.

Family as a Rational Classification

Using family as an operational surrogate in a statutory plan aimed at assuring the stability of a neighborhood is overbroad because it thereby rules out many legitimate associations that would not introduce neighborhood instability. Additionally,family is underinclusive in that it allows many arrangements that would undermine neighborhood stability. Our desire is to understand how the world came to be the way it is-why prejudices and conventions assumed the forms that they did rather than some other form. Readers will judge for themselves, and will differ, whether what is and has been is also what should be. Because our province is positive theory, we do not insist that the rational preference for traditional families necessarily leads to the conclusion that such families are axiologically superior forms of domestic organization. However, without accepting the preference for traditional families as rational rather than accidental, capricious, or merely religious, any normative case for alternative arrangements is unlikely to be convincing