In Law for Sale, Johanna Stark explores the ways in which regulatory competition conflicts with our usual understanding of the law and its role in society. As a result of regulatory competition, the law becomes a market good for which states act as suppliers and compete for customers (individuals and organizations). Stark successfully shows the tensions that exist between the idea of legal markets and a variety of views on politics, ethics, law, and economics. Stark does not go so far as to claim that legal markets are wrong; rather, she more modestly claims that it is very unlikely that one can consistently hold favorable views of regulatory competition while also holding a variety of standard views in political philosophy on the justification for the state and on the role of the law.

The theme of markets for everything is not a new one, but the idea of a “market for law” can be seen as taking the idea of the market to its logical end. The orthodoxy of markets as situated within a legal framework that is conceptually prior to the market is turned on its head once we seriously think about regulatory competition, as Stark does. Overall, Stark’s book meshes legal, economic, and philosophical literatures well, resulting in an extremely interesting and insightful discussion of regulatory competition and markets for law.

Stark lays out the framework for the book in chapter 1, explaining what regulatory competition and competitive law markets are and examining how successful and useful the metaphor of a law market is. In the first part of the chapter, Stark argues that there are three structural preconditions for regulatory competition (legal diversity, physical mobility, and legal mobility), and she discusses the political and economic incentives lawmakers have to engage in regulatory competition. The second part of the chapter establishes that regulatory competition is a real-world phenomenon. Stark’s focus is on the supply side of law markets, and she convincingly demonstrates that states indeed engage in such regulatory competition. The primary areas where such regulatory competition clearly exists are tax law—with some states aiming to become tax havens—and labor law, with the relaxing of labor standards to reduce the cost of labor and attract mobile capital.

Chapter 2 focuses on economic arguments for and against regulatory competition. In favor of regulatory competition are arguments that it leads to increased legislative efficiency and that it corrects problems that arise from the regular political process. Arguments against regulatory competition include the specter of market failures that result in a “race to the bottom,” negative externalities for those who are unable to exercise legal mobility, the worry of regulatory capture by those able to exert pressure through the threat of “exit,” and the bundling effects that make it difficult to read the price signals sent by locational decisions. Stark’s economic discussion is rather brief, because she thinks that the economic cases both for and against regulatory competition are inconclusive and provide no clear “winner.” Nevertheless, because the only arguments in favor of regulatory competition Stark discusses are economic, a more compelling economic defense of regulatory competition would have been helpful in convincing the reader that a strong economic case for regulatory competition can be made and subsequently of the importance of her critical project.

The main thrust of the book is in chapters 3, 4, and 5, in which Stark focuses on making the case that regulatory competition is in tension with a variety of standard views in political philosophy. In chapter 3, Stark claims that making the case for regulatory competition requires committing to political utilitarianism. Because there are many reasonable objections to political utilitarianism, relying on it makes the case for regulatory competition relatively weak. Among the objections to utilitarianism that Stark raises are its disregard for individual rights, its insensitivity to questions of distributive justice, and its lack of regard for special relationships and past commitments. However, even if we accept that utilitarianism as a political theory is highly suspect, what is less clear in this chapter is that this actually has negative implications for the case for regulatory competition. While we can grant Stark that she provides good reasons to deny a utilitarian justification for regulatory competition, she does not actually make the case that this is the only, or even the best, philosophical defense of regulatory competition. Yet, for her criticism to work, such a case is necessary. This is perhaps the weakest part of Stark’s book and an issue that also comes up in chapter 4.

In chapter 4, Stark discusses how regulatory competition undermines the justification for the state. She explores the way regulatory competition is in tension with the democratic ideal, state autonomy, and political authority. First, Stark argues that market demands regarding regulations and laws conflict with the democratic ideal by undermining majority rule. The clearest way regulatory competition does this is by motivating the restriction of national legislative authority for the sake of international cooperation aimed at limiting some deleterious effects of regulatory competition. This “lesser evil” might be preferred, but it does lead to a “democratic deficit” that supranational organizations are often criticized for creating.

Second, Stark discusses the conflict between regulatory competition and state autonomy. She argues that if regulatory competition became much more prevalent, it could undermine state autonomy. The reason is that it could result in the law being decisively influenced by considerations that are not autonomy enhancing, particularly the need to meet international competitive demands of which the public is not aware. While not an unreasonable worry, it is neither an argument against regulatory competition as it currently exists nor an argument unique to regulatory competition, because a variety of practices could undermine state autonomy in the sense that worries Stark were they to be significantly expanded, political lobbying being only one example.

Last, Stark argues that on either a perfectionist or a procedural account, regulatory competition impedes political authority. Stark claims that in light of its utilitarian pedigree, regulatory competition is inherently in opposition to perfectionist accounts of political authority. However, because the utilitarian justification of regulatory competition has not been sufficiently established in chapter 3, this line of reasoning is not entirely convincing. With respect to the procedural–contractual account, the discussion returns to the claim that regulatory competition is in conflict with the principles underpinning democratic state organization already discussed with regard to state autonomy. Because, in Stark’s view, the fact that regulatory competition and our conception of the political justification for the state are at odds ultimately stems from regulatory competition’s utilitarian pedigree, the fact that she did not devote more attention to establishing this claim more conclusively considerably weakens the general thrust of her book.

Stark’s last chapter focuses on the problems with treating laws as a market commodity. By treating laws as a market commodity, regulatory competition undermines the important social functions that the law fulfills, both as an order-maintaining institution and as an expression of communal values. Here again, Stark engages nicely with some very interesting discussions on noxious markets and the commodification of goods that gives rise to contested goods in political philosophy.

We might wonder how new or timely the discussion of regulatory competition actually is. As Stark makes clear, the discussion of regulatory competition dates at least as far back as Charles Tiebout’s 1956 work on the issue. Stark also highlights the legal competition among US states as a prime example of markets for laws. So is there anything in current affairs that gives us a new reason to examine the phenomenon? It might be a relatively new phenomenon in some contexts, but it does not seem that cases involving the European Union, for example, introduce any novel complexity or raise particularly new issues. Yet, as Stark makes clear in her conclusion, now is a time to consider the role we think the state has in an increasingly globalized and mobile world. Moreover, Stark hints that perhaps we ought to reassess our understanding of the role of the state in light of the current shift away from the state as a territorial monopoly justified by its ability to contribute to its citizens’ well-being.

Overall, Stark embarks on an ambitious project of engaging with a broad swath of political philosophy literature. Since she deals with so much, at times the discussion of specific arguments is quite brief. Nevertheless, looking at how regulatory competition interplays with political utilitarianism, democratic theories, state autonomy, political authority, contested commodities, and the social meaning and functions of laws offers a very interesting and complete way of exploring how regulatory competition is considered through the prism of political philosophy and is often at odds with traditional views in the field. Additionally, Stark’s book demonstrates the importance of recognizing ways in which ethical considerations in business are intertwined with political philosophical considerations. To consider the ethical implications that taking advantage of regulatory competition has for individuals and businesses, one must understand the political ramifications of such a decision for states. Stark gives us a very useful overview of what these are, and learning about them should prove to be both interesting and useful for business ethicists interested in the topic of regulatory competition.