Law and the Theory of Fields

• Publication year: 2015
• Citation: Vol. 39 No. 02

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 2, WINTER 2016

Law and the Theory of Fields

Frank Partnoy(fn*)

CONTENTS

INTRODUCTION ..................................................................................... 579

I. STRATEGIC ACTION FIELDS AND LAW/REGULATION ........................ 583

II. STRATEGIC ACTION FIELDS, LAW, AND CREDIT RATING AGENCIES

.............................................................................................................. 586

CONCLUSION ......................................................................................... 590

INTRODUCTION

Law does not play much of an explicit role in A Theory of Fields,(fn1) the pathbreaking book by Neil Fligstein and Doug McAdam about collective action in society. The authors focus on the notion of a "strategic action field," defined as a social order in which actors are attuned to and interact based on several important sociological factors, including shared understandings about purpose, relationships to others in the field, and "rules" governing legitimate action.(fn2) Thus framed, "rules" in the abstract sense are present in a limited sense in the theory. However, the authors do not distinguish among rules governing legitimate action in a field, nor do they describe the extent to which rules are private or public; instead, they group together all collective actors-"organizations, clans, supply chains, social movements, and governmental systems"(fn3)-and describe the strategic action fields associated with these actors without particular reference to the role of law.

One of the most provocative ways in which Fligstein and McAdam distinguish among strategic action fields-without respect to the role of rules-is the extent to which such fields are focused on "material" as opposed to "existential" concerns. The authors hypothesize that "[p]eople do what they do both to achieve instrumental advantage and to fashion meaningful worlds for themselves and others."(fn4) Accordingly, one can imagine strategic action fields as arrayed along a continuum with purely "material" as the extreme at one pole and purely "existential" as the extreme at the other.

Material ___________________________________________ Existential

The distinction between "material" and "existential" plays a prominent role in A Theory of Fields, and it played a prominent role in discussions at the Berle VII Symposium. In general, the authors advocated the importance of the ongoing use of social skills and the collaborative efforts to seek meaning, particularly in ways beyond the merely "materi-al."(fn5) However, the extent to which rules might matter in these efforts was less clear.

Overall, Fligstein and McAdam seek to use the concept of a strategic action field to develop a theory of social change and stability.(fn6) Yet social change and stability are inextricably linked to law, legal regimes, and regulatory structures. During the Berle VII Symposium, I raised the point about the absence of law and regulation from the theory of strategic action fields. I attempted to demonstrate that law and regulation matter, substantially, in the application of Fligstein and McAdam's theory. The two authors seemed open during our discussions to the notion that law might be added as a theoretical "friendly amendment" to their theory. With their openness as a motivation, I attempt in this brief Article to sketch how one might make such an addition to their theory.

Specifically, I suggest here that the theory of "meso-level" (or middle-level) social orders advanced by Fligstein and McAdam might profitably be expanded to include two continua, rather than one.(fn7) The first continuum, the primary "x-axis" of the theory posited in A Theory of Fields, is the notion that strategic action fields can be described as "material" or "existential," or some combination of the two, as I suggest above.(fn8) The second continuum, the secondary "y-axis" of the theory and my "friendly amendment," is the notion that the description of strategic action fields varies based on the application of law.

My primary argument is that the theory of strategic action fields can be expanded to include this second continuum, based on the degree of law applicable to a particular field. Specifically, at one end of this second axis is the notion of an entirely unregulated strategic action field, which is largely governed by private ordering. At the other end of this second axis is the notion of a highly regulated strategic action field, which is largely governed by state action and intervention. My claim is that strategic action fields can more usefully be described by expanding A Theory of Fields to include this additional law/regulation axis.

Thus, in graphical terms, although Fligstein and McAdam's theory can be visualized as one horizontal axis, running from material to existential, as amended, the theory also would include a vertical axis based on the degree of applicability of law/regulation. To simplify the analysis, one might imagine four quadrants of strategic action fields, as depicted below:

Regulated	Regulated/Material	Regulated/Existential
Unregulated	Unregulated/Material	Unregulated/Existential
	Material	Existential

In the upper left quadrant are regulated/material fields, where examples might include financial institutions, such as banks and insurance companies, which generally are subject to a complex web of regulations and multiple regulators and are focused primarily on monetary concerns. In contrast, in the lower left quadrant are unregulated/material fields, examples of which might include hedge funds or offshore investment vehicles that (at least until recently) generally have been outside the purview of the most onerous regulations but also are focused primarily on monetary concerns. As noted below, the types of strategic action fields vary considerably between these two quadrants.

In the upper right quadrant are regulated/existential fields, which might include educational institutions and hospitals that generally are subject to a complex web of regulations and multiple regulators but (generally, or perhaps hopefully?) are focused less on monetary concerns than their central missions (e.g., educating students or attending to patients' health). In the lower right quadrant are unregulated/existential fields, examples of which might include Super PACs or private philanthropic organizations that generally are outside the purview of the most onerous regulations but are focused less on monetary concerns than on their central missions...