Table of Contents

Nudges, Agency, Navigability, and Abstraction: A Reply to Critics

Cass R. Sunstein, Harvard Law School

Constitutional Stickiness

Ozan O. Varol, Lewis & Clark Law School

The Conflict of Laws in Armed Conflict and Wars

John C. Dehn, Loyola University Chicago School of Law

The Doctrine of Legitimate Defense

Jens David Ohlin, Cornell University - School of Law

The Agreement on Trade Facilitation and Its Implications: An Interpretative Perspective

Heng Wang, Southwest University of Political Science and Law - School of International Law, The University of New South Wales


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Nudges, Agency, Navigability, and Abstraction: A Reply to Critics" Free Download
Review of Philosophy and Psychology, Special Issue on Nudges, Forthcoming

CASS R. SUNSTEIN, Harvard Law School
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This essay, for a special issue of the Review of Philosophy and Psychology, responds to ten papers that explore the uses and limits of nudges and choice architecture. The essay has three general themes. The first involves the objection that nudging threatens human agency. My basic response is that human agency is fully retained (because nudges do not compromise freedom of choice) and that agency is always exercised in the context of some kind of choice architecture. The second theme involves the importance of having a sufficiently capacious sense of the category of nudges, and a full appreciation of the differences among them. Some nudges either enlist or combat behavioral biases but others do not, and even among those that do enlist or combat such biases, there are significant differences. The third general theme is the need to bring various concerns (including ethical ones) in close contact with particular examples. A legitimate point about default rules may not apply to warnings or reminders. An ethical objection to the use of social norms may not apply to information disclosure. Here as elsewhere, abstraction can be a trap. We continue to learn about the relevant ethical issues, about likely public reactions to nudging, and about differences across cultures and nations. Future progress will depend on a high level of concreteness, perhaps especially in dealing with the vexing problem of time-inconsistency.

"Constitutional Stickiness" Free Download
UC Davis Law Review, Vol. 49, 2016, Forthcoming

OZAN O. VAROL, Lewis & Clark Law School
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Continuity is a striking hallmark of the constitutional world. Empirical evidence shows that many constitutional amendment and replacement processes counterintuitively produce relatively little change in substance. During constitutional makeovers, existing provisions frequently “stick,� even where they are arbitrary, suboptimal, or anachronistic.

This paradox, which I call “constitutional stickiness,� has been neglected in the scholarship. American constitutional theorists have largely assumed that Article V’s high threshold for amendment is the primary culprit for lack of formal constitutional change and that significant alterations might follow with a lower threshold. With mounting calls by the states for a constitutional convention, this assumption has also prompted concerns about a “runaway convention� that could drastically alter the substance of the U.S. Constitution.

This Article challenges that assumption. Drawing on rational-choice theory and behavioral law and economics, it provides the first theoretical analysis of constitutional stickiness in descriptive and normative terms. Even with low amendment thresholds, the constitutional status quo exerts significant historical weight and the constitutional starting points constrain future choices in specific and systemic ways. The existing constitutional configurations therefore often depend, quite arbitrarily, on the historical starting point, rather than a rational assessment of all alternatives. As a result, relatively insignificant events in a country’s early constitutional history can have an enormous impact, whereas more dramatic events — such as a revolution or a major constitutional convention — that occur later are much less consequential than assumed. Ultimately, the Article aims to reorient the normative focus of constitutional scholarship to oft-neglected temporal and sequential considerations.

"The Conflict of Laws in Armed Conflict and Wars" Free Download

JOHN C. DEHN, Loyola University Chicago School of Law
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After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a precise understanding of whether or how international and U.S. law interact to regulate acts of belligerency by the United States. This Article provides the first normative theory that harmonizes Supreme Court statements regarding the general relationship of customary international law to the U.S. legal system. It offers a functional theory of law and rules of decision that distinguishes cases involving war and other matters of foreign affairs or “external sovereignty� from cases involving “internal sovereignty.� It posits that in cases involving the exercise of the external sovereign powers of war the Supreme Court traditionally applied customary international laws of war as a non-federal rule of decision in accordance with conflict of laws principles. The Court articulated its conflict of laws framework in Paquete Habana: “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.� The Article then descriptively analyzes the Court’s wartime jurisprudence to explain the Paquete Habana framework and clarify the relationship of international laws of war to the Constitution and Bill of Rights. It also briefly suggests how this deeper understanding of the Paquete Habana framework informs contemporary issues such as the use and jurisdiction of military commissions. Given the range of legal issues this Article potentially clarifies, it could significantly influence contemporary academic and judicial discourse regarding the application of customary international laws of war to the armed conflicts and wars of the United States.

"The Doctrine of Legitimate Defense" Free Download
91 International Law Studies 119-154 (2015)

JENS DAVID OHLIN, Cornell University - School of Law
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The following article reorients mainstream conceptions of self-defense by defending a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. The source of the doctrine is natural law, which was explicitly incorporated into the text of UN Charter article 51. The effect of this incorporation was to preserve, as a carve-out from the prohibition against force in Article 2, the natural law rights of defensive force. Specifically, the Article concludes that defensive force under natural law included, in extreme situations, a right of intervention in rogue States that refused to comply with natural law. The Article then provides a normative foundation for the doctrine of legitimate defense by showing how the right of self-determination, the right to be free from genocide, and the right to self-defense, all flow from a more primary right to exist that applies to nations and peoples. Finally, drawing on earlier work published with George Fletcher, the Article explains how a national group’s right of self-defense can trigger a third party’s right to intervene on its behalf. This reading of Article 51 shows how its explicit incorporation of natural law and its textual reference to “legitimate defense� provides the conceptual ground for a modern doctrine of humanitarian intervention. However, unlike other legal justifications for humanitarian intervention that are framed as "exceptions" to article 51, the doctrine of legitimate defense is based on a textual interpretation of that provision.

"The Agreement on Trade Facilitation and Its Implications: An Interpretative Perspective" 
Asian Journal of WTO & International Health Law and Policy, Vol. 9, No. 2, pp. 445-476, September 2014

HENG WANG, Southwest University of Political Science and Law - School of International Law, The University of New South Wales
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As a highly compromising and flexible agreement, the Agreement on Trade Facilitation (hereinafter “TFA� or “the agreement�) may shed light on the future direction of the world trade regime. Going beyond the tariffs and border, the agreement is featured with good governance requirements. Its delicate relationship with free trade agreements (hereinafter “FTAs�), the domestic law, and existing World Trade Organization (hereinafter “WTO�) agreements deserves attention and carries important implications. What is the relationship between of the TFA and non-WTO rules? How do existing WTO agreements apply to the TFA explicitly or implicitly? What is the interpretative challenge? In addressing these issues, the holistic approach is needed. It remains to be seen how the TFA fits to the world trade regime in the future.

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Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School