Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking

Negotiation is a vital instrument in the private ordering of affairs among disputants and among those who seek to work out rules to guide their future conduct in relation to one another. In this Article, Professor Eisenberg analyzes the way principles, rules, and precedents operate in private negotiation, both in the context of resolving present disputes and in the context of rulemaking to govern future conduct. Professor Eisenberg rejects the widely perceived dichotomy between norm-free negotiation and norm-bound adjudication, and suggests that norms play an integral role in the negotiation process, especially in the resolution of disputes. While granting that rulemaking depends in large part on the relative bargaining strength of the parties, Professor Eisenberg contends that even in. rulemaking situations the invocation of norms will have a significant impact on negotiation, especially where the relationship between the parties is characterized by dependence.