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Abstract:
Economists have long recognized the ability of employers to construct benefits packages to induce workers to sort themselves. For instance, to encourage applications from individuals with a highly valued but largely unobservable characteristic, such as patience, employers might offer benefits that patient individuals are likely to value more than other individuals. By offering a compensation package with highly valued benefits but a relatively low wage, employers will attract workers with the favored characteristic and discourage other individuals from applying for or accepting the job. While economic theory generally views this kind of self-selection in value neutral terms, prejudiced employers could exploit this mechanism design framework to systematically discriminate against individuals on the basis of observable characteristics that the law prohibits employers from considering in their hiring decisions. As long as groups systematically differ in their preferences for various employment terms and conditions, employers can generate sorting in the application and employment acceptance stages, leading to the desired segregated outcome in a way that regulators will find difficult to prevent without dictating uniformity in benefits packages.

We develop a formal model as well as an intuitive discussion of the phenomenon. We provide a number of representative illustrations of how a prejudiced employer could exploit preference heterogeneity for discriminatory ends. These mechanisms include wage and benefit packages such as (1) high pension, low wages, (2) commission-based salaries, (3) Sundays off policies, and (4) free school tuition. We also note that some employers might end up with a segregated workforce even when they have no intention to sort workers or when they intend to sort for a non-discriminatory characteristic.

Finally, we conclude that current federal antidiscrimination law inadequately addresses either intentional or unintentional passive discrimination. Neither disparate treatment nor disparate impact frameworks are well suited to grappling with this form of structural discrimination. Passive discrimination facilitates rather than impedes employee choice and thus, might not be viewed as discrimination per se, even if it results in workplace segregation or means that individuals with protected characteristics who fail to self sort are least likely to value the form of compensation and fringe benefits they receive. We discuss some possible judicial and legislative approaches that may ameliorate passive discrimination, though many raise serious questions of their own.

Abstract:
Current domestic and international law relating to immigration tends to favor law enforcement over human rights approaches. Despite these tendencies, international law has helped develop a human rights framework applicable to migrants. In particular, this paper hypothesizes that international human rights treaties that deal specifically with migrants' rights may provide some small but meaningful gains for migrants by: (1) influencing non-binding regional processes; (2) contributing to the development and dissemination of best practices; and (3) producing and codifying a human rights discourse. If such an account is correct, the emphasis on whether states formally adopt international law obscures some of the less obvious benefits of developing immigration human rights treaties and their related regimes.

First, the article suggests that treaties can be agenda-setting for non-binding regional processes. While political science scholars have begun looking at the effects of such processes more generally, few international law scholars address this phenomenon. This paper hopes to spur some interdisciplinary discourse by suggesting that non-binding regional processes create a pathway by which international law may reach and influence even those states skeptical about joining international treaty regimes. Second, the article investigates the way in which immigration human rights treaties may contribute to the development and dissemination of best practices. Third, this paper conjectures that treaties assist in the production and codification of a human rights discourse. It relies on insights from psychology to demonstrate why language and rhetoric might guide state and individual behavior.

Finally, this paper concludes with a snapshot of Italian immigration policy as a case study. Italy provides a discrete example of how international treaties can influence domestic legislation as well as highlights some of the difficulties in promoting and enforcing migrants' human rights.

immigration, human rights, international law

Abstract:
Conventional wisdom suggests that the precautionary principle, which places the burden for proving a product's safety on the manufacturer, best protects the environment and the public's health in cases of scientific uncertainty. Using insights from behavioral law and economics, this Article contends that the precautionary principle may lead to perverse environmental prioritization in the military context. It uses depleted uranium weapons as a case study to demonstrate the military precautionary principle's insufficient attention to risk-risk trade-offs and its systemic susceptibility to cognitive biases such as the availability heuristic, blame attribution errors, and myopia to older risks. The Article instead proposes an amendment to existing international law to create an ongoing duty for states to evaluate the unintended environmental and health threats of weapons. Such an amendment to Article 36 of Protocol I to the Geneva Convention could help provide the information needed for a global weapons toxics registry and foster the deployment of cleaner weaponry.

precautionary principle, behavioral law and economics

Abstract:
The related problems of missing women and daughter discrimination plague contemporary China. Although statistics predict only a slightly greater male birth rate and a slightly lower female mortality rate in the first few years after birth, sons substantially outnumber daughters in modern Chinese families. This article assesses the mechanisms by which families effect daughter discrimination: sex selective abortions, female infanticide, child abandonment, underinvestment of family resources in girls, as well as secondary reinforcing practices like lineage societies and patrilocal living arrangements. Rather than developing legal proposals to counteract each of these individual practices, this paper suggests ways that law can help ameliorate the root causes of the widespread son preference.

China's rapid shift away from the once-prevalent custom of footbinding provides a helpful lesson for those seeking to use law to change social practices. Both footbinding and modern daughter discrimination rest on a belief trap, a set of incorrect but self-reinforcing perceptions, about the economic and social value of girls. In the context of footbinding, the combination of anti-binding associational societies and laws supporting the anti-binding position helped foster a norm cascade in opposition to footbinding, leading to the rapid elimination of that practice. This historical success suggests a template for approaching daughter discrimination in modern China. Specifically, this article proposes: (1) the creation of modern associational societies that eschew daughter discrimination; (2) the provision of financial incentives to family planning workers and doctors to promote female births; and (3) the development of targeted economic reforms to erode support for patrilocal and patrilineal traditions.

China, social norms

Abstract:
Sub-federal integration is the practice of cities and states promoting and implementing unratified and non-self-executing treaties. This article examines several instances of sub-federal integration in order to demonstrate the importance of treaties to even non-member countries. The existence of sub-federal integration suggests that the existing focus on federal ratification and congressional implementation overlooks an important mechanism through which domestic integration of treaties can occur. Sub-federal integration provides a concrete example of how unratified and non-self-executing treaties can have real, albeit limited, impact on domestic practices.

No consensus exists within international law scholarship about whether and how treaties influence domestic practices and preferences. Norm-based theorists suggest that treaties can slowly change preferences over time through treaty management which includes repeated persuasive interactions as well as technical and financial assistance. This article uses sub-federal integration to propose an addition to norm-based theories by suggesting the mechanisms of treaty management may be extended to non-treaty members like cities and states.

This article also challenges the prediction that sub-federal integration will trigger norm cascades strong enough to change national preferences for federal ratification. While this article suggests sub-federal integration raises the possibility of modest social change, it acknowledges numerous procedural and political barriers to ratification. Instead, it suggests that ratification is just one of many ways to bring international law home.

international law, norm theory, treaties