The Role of Formal Contract Law and Enforcement in Economic Development

The primary inquiry of this Essay is consequentialist: whether the existence of a formal contract law and enforcement regime significantly contributes to economic growth in developing countries. As the Essay elaborates, two different hypotheses emerge from the literature. One takes the view that strong formal contract law and enforcement mechanisms are indispensable to economic development, while the other contends that much economic development is realizable through informal contracting mechanisms. To test the validity of these two hypotheses, we provide a critical review of existing literature, including an investigation of two cases of great contemporary development significance: the so-called “China Enigma” and the “East Asian Miracle.” In both of these cases, high rates of economic growth have been achieved, often in the absence of strong formal contract law and enforcement regimes.

We argue that at low levels of economic development informal contract enforcement mechanisms may be reasonably good substitutes for formal contract enforcement mechanisms, but become increasingly imperfect substitutes at higher levels of economic development involving large, long-lived, highly asset-specific investments or increasingly complex traded goods and services, especially outside repeated exchange relationships. Thus, the mix of mechanisms that are likely to ensure both a fair and efficient domain of contracting in developing countries is a function of highly context-specific factors that defy easy generalizations. We conclude that on one of the central questions in contemporary development debates – do good institutions cause growth, or does growth cause good institutions? – the answer, in the context of contract enforcement mechanisms, is a nuanced one.

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case? 

Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.