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I came to the conference a little uncertain about how to handle the assignment of a commentator on a paper by a distinguished economist at a symposium on Hayek. I cannot claim any expertise either about Hayek's thought or about law and economics, other than an interested tourist's acquaintance with either. Yet, both Professor Cooter's paper and much of Hayek's legal theory touch on an issue familiar to all legal historians. It is perhaps the oldest and most contested of all issues in legal thought and practice, that of the relations between law and custom, both as they are and as they should be. There are revealing differences on this issue between (what I understand to be) Cooter's approach and Hayek's approach.

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