ANDREW T. GUZMAN, University of California, Berkeley - School of Law
Email: guzman@law.berkeley.edu
TIMOTHY MEYER, University of California, Berkeley - School of Law (Boalt Hall)
Email: tlmeyer@berkeley.edu

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior by implicating a state's reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions.

By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, states are able to expand the tribunal's influence beyond those states that submit to the tribunal's jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft law impact of the tribunal, regardless of whether they have formally submitted to the tribunal's jurisdiction. In this way tribunals create what can be called an international common law able to evolve without formal agreement from states.

ALEX RASKOLNIKOV, Columbia University - Columbia Law School
Email: arasko@law.columbia.edu

People pay their taxes for many different reasons. Some try to game the system, paying only when the cost of noncompliance outweighs its benefits. Others comply out of habit, a sense of duty or reciprocity, a desire to avoid feelings of guilt or shame, and so on. Our tax enforcement system has ignored this variety of taxpayer motivations for decades. It continues to rely primarily on audits and penalties, at least where information reporting and withholding are impossible. These policy instruments work well for those rationally playing the tax compliance game, but are wasteful or even counterproductive when applied to others. The shortcomings of the current one-size-fits-all approach to tax enforcement are well understood. They also appear to be insurmountable. This Article argues that it is possible to design a more tailored regime. The idea is to separate all taxpayers based on their taxpaying motivations by creating two different enforcement environments and inducing taxpayers to choose one when they file their returns. Once the separation is accomplished, the government can target enforcement by matching enforcement policies to taxpayer types. Those who try to game the system will be deterred by higher penalties in one regime. All others will be induced to comply by cooperative enforcement measures in the other environment. If successful, separation and targeted enforcement can improve tax compliance without raising its social cost, or keep the level of compliance unchanged while making tax administration more efficient.

TERRY CARNEY, University of Sydney - Faculty of Law
Email: t.carney@usyd.edu.au
DAVID TAIT, University of Canberra
Email: david.tait@canberra.edu.au
FLEUR AILEEN BEAUPERT, University of Sydney
Email: fbea8132@mail.usyd.edu.au

Mental health jurisprudence traditionally was more concerned to protect negative or 'liberty' rights than to advance positive rights of access to needed mental health care and treatment. North American test case litigation contributed to advances in the quality of mental health and other services in some instances, but the record is patchy. Socio-legal studies of mental health tribunal operations in England and Wales suggest that health paradigms are dominant, and that legal norms and standards may be weak reeds in this setting. This article reviews the diverse legislative models in three main Australian jurisdictions before examining fieldwork data on the extent to which Australian mental health tribunal 'push the boundaries' of the law in order to obtain favourable treatment outcomes. It argues that, contrary to overseas experience, Australian tribunals merely 'nudge', rather than disturb, the legal boundaries.

KEVIN J. O'BRIEN, University of California, Berkeley - Charles and Louise Travers Department of Political Science
Email: kobrien@berkeley.edu
RONGBIN HAN, University of California, Berkeley
Email: rongbin@berkeley.edu

Election procedures in rural China have improved greatly over the last twenty years and a good number of reasonably free and fair elections have been held. But changes in the exercise of power have not kept up with changes in the access to power. In many communities, township authorities, Party branches, and social forces (such as clans, religious groups, and underworld elements) continue to impede democratic rule. This suggests that a purely procedural definition of democracy is problematic and that democratization depends on the power configuration in which elected bodies are embedded. Putting grassroots democracy into place goes well beyond getting the procedures right, and high quality democracy rests on much more than convening good village elections every three years.

JANE K. WINN, University of Washington - School of Law
Email: jkwinn1@u.washington.edu

The US has taken a sectoral approach to information privacy law, resulting in a patchwork of different information privacy rights that vary widely in their scope and strength, and lacks either a general right of data protection or special protections for a defined category of sensitive data. A sectoral approach to information security law is now emerging in the US, and it is producing a patchwork of different duties to protect the security of certain types of personal information. When US information privacy law and information security law are considered together, what appears to be emerging is a de facto category of sensitive data, namely personal information that is subject to stringent information security requirements. Unlike the de jure concept of sensitive data defined by EU law which is intended to block the collection, processing or transfer of certain categories of personal information in order to guarantee fundamental dignitary interests, the new US duty to secure sensitive information represents a minor modification of the current practice of treating personal financial information as a commodity.

KENNETH L. PORT, William Mitchell College of Law
Email: ken.port@wmitchell.edu

Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each "story" of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of what Article 9 stands for. On one extreme are Article 9 Society groups that claim that it stands for the proposition that Japan is a completely pacifist nation and may not possess any military for any purpose. On the other extreme, the Liberal Democratic Party that has ruled Japan for most of the post-WWII era feels Article 9 restrains the military somewhat but does not prevent it from becoming one of the largest militaries in the world by dollars spent.

This situation of not having a Supreme Court ruling on this important societal issue transforms this into a moral, ethical, or spiritual debate, not a legal or constitutional one. This debate has come to play the role in Japan that abortion has played as a rhetorical and political issue in the United States. However, because there is no Supreme Court ruling, it is a debate over Roe v. Wade without the Roe v. Wade.

CHRISTIAN BJØRNSKOV, Aarhus School of Business - Department of Economics
Email: ChBj@asb.dk

This paper explores the determinants of social trust, as measured by perceived honesty, in 48 US states across three periods. The results show support for the detrimental effects of income inequality but no or little support for a set of popular alternative theories. The trust decline in recent decades is found to have been a consequence of increasing social polarization and the natural decline of the most trusting age cohorts. Residual trust has increased since the early 1970s, giving rise to markedly different policy implications than those forwarded in most studies in the trust literature.