Academic journal article Duke Journal of Comparative & International Law

Lawyer-Made Law, Lex Juris and Confusing the Message with the Messenger

Academic journal article Duke Journal of Comparative & International Law

Lawyer-Made Law, Lex Juris and Confusing the Message with the Messenger

Article excerpt

In The Law of Cross-Border Securitization: Lex Juris, Professor Frankel asserts that lawyers are central to the making of the laws, or "law-like" rules, that govern cross-border securitizations. (1) She lauds this development and hints that it might provide a useful model for other laws in a global context. I disagree. I think that lawyers and their work product, while important, are just agents in the system; or to put it another way, at best lawyers are no more than highly-trained facilitators of securitization. They are not, and likely cannot be, entities who make "law" in any consistent way or in any common sense meaning of the word. Put another way, a good lawyer ensures that the parties' expectations conform to what the law provides or allows; he or she does not change the law or write new laws to satisfy those expectations. (2)

I wish to make three short points in this comment. First, I want to sketch further my argument that lawyers do not make law or law-like rules. Second, I want to question an implicit assumption in Professor Frankel's article that lawyers are the primary agents for standardization and efficiency in securitization. Finally, I want to raise some questions about democracy and governance, if lex Juris is indeed a part of the "law."

I. IS WHAT LAWYERS DO THE "LAW"?

Professor Frankel identifies lex Juris as a possible "forerunner of a new type of lawmaking regulating global activities: law-like rules that escape tight control of domestic laws, but take them into account; rules that are highly flexible for a fast-changing environment, but quickly unified into standards and guidelines of sufficient predictability." (3) In short, she sees lawyers as bringing order out of potential chaos and being positive instruments of change by reducing variability of results through consistent and adroit drafting and planning.

I might agree with Professor Frankel's conclusion that lawyers are such a positive force without accepting the notion that what they do constitutes rulemaking or the creation of "law-like" rules. My first point of departure, then, is in the definition of what we call "law," and derivatively what it means to be "law-like." In the quotation above, Professor Frankel uses "law" in an expansive and somewhat loose manner. As she elaborates, the opinions of legal scholars "have a respectable place as part of the law of the land." (4) Included within this place are the "legal documents that lawyers draft." (5) I disagree with this breadth; it represents a conflation between law and the texts that influence the shape of the law. While legislators and judges may consider academic writing in formulating policy or deciding issues, such consideration certainly is not compulsory. Similarly, while contracts set the "law of the parties," contractual freedom is limited by notions of public policy. (6)

Another way to express this point of difference is to ask what special consequences flow from labeling something as "law" or "law-like." One consequence is that a state legitimately may impose a sanction on anyone who acts contrary to the precepts or dictates of the "something" we are calling law. (7) Another consequence of calling a particular text or activity law is that, at least under something like social contract theory or communitarian theory, the person subject to the law will have agreed to comply with it, or at least will have agreed to the process by which the law came about. (8) Thus, it is difficult for me to accept lawyers' work product as "law" or "law-like," because I would feel perfectly free to act contrary to a contract to which I am a stranger and would find it surprising to be held to that law simply on the basis of knowledge of its existence. (9)

The practical effect of this difference in categorization already has surfaced in American securitizations. In the L TV Steel case, (10) for example, LTV had securitized both its accounts and its inventory and had sold them to a special purpose vehicle (SPV), which was a subsidiary of LTV. …

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