LAW, NORMS & INFORMAL ORDER eJOURNAL

"Introduction: Religious Law in the 21st Century" Free Download
Pepperdine Law Review, Vol. 41, No. 991, 2014
Pepperdine University Legal Studies Research Paper No. 2015/05

MICHAEL A. HELFAND, Pepperdine University School of Law
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Professor Helfand introduces this symposium on Religious Law in the 21st Century. Helfand notes that a recurring theme in recent debates over the relationship between law and religion is the unique challenge of reconciling conflicts not just between law and religion, but between the law of the nation-state and “religious legal communities? -- that is, communities that primarily experience their religious norms through the prism of legal rules. Muslim and Jewish communities serve as prime examples of such religious legal communities, and the challenges faced by these communities often parallel each other in important ways. Thus, an important subset of contemporary religious controversies -- from circumcision bans to anti-Sharia laws -- emerge as not only conflicts between law and religion, but as conflicts between law and law. And it is to this unique set of questions that the jointly-sponsored program of the Islamic Law and Jewish Law Sections of the American Association of Law Schools was addressed. The program was split into two thematic panels, and the articles in this symposium reflect those themes. The first -- titled “Religious Law in U.S. Courts? -- considered the various contexts in which U.S. courts have been asked to address religious questions that touch upon religious law. The second -- titled “Religious Law in the Secular State? -- considered contemporary issues related to the practice and implementation of religious law in secular democracies. Together, these papers bring new insight to these questions and serve as a springboard for discussion and debate about how religious law will fit into the ever-evolving landscape of the 21st century.

"The EU’s Participation in the Global Legal Order as a Postnational Democracy: Manifestations of Sovereignty" Free Download
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 04/2015

ELAINE FAHEY, City University London - City Law School
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Sovereignty is arguably neither popular nor conventional nor does it transpose itself into discourses of rule-making beyond the Nation State. For some, to speak of sovereignty in the context of global governance leads to bewildering identification of a ‘global sovereign’. The multi-directional nature of the global reach and effects of EU law has been shown in this account to comprise boundaries and competences extensions to various degrees. It is argued to constitute manifestations of sovereignty, with spatial, action and transboundary dimensions to it that require ‘unpacking’. This paper argues that postnational rule-making practices conducted by the EU may usefully be captured by sovereignty, as an over-arching framework beyond an analysis for power, influence and interactions between legal orders. Much scholarship on sovereignty and the EU has been developed prior to more recent invocations in the EU treaties to evolve as a postnational democracy. Participation by the EU in the global legal order is a multi-faceted construct but is argued here to be rooted in an understanding of the EU as an actor, i.e. what it is and what it does. Legal scholarship appears to place a high premium on the ability of the EU to participate externally as an actor, seamlessly, coherently and with consistency. Accordingly, as has been argued here, the enabling character of sovereignty at the postnational level appears insufficiently studied. The physical and metaphysical space of EU rules is argued here to require more nuancing, method and study as to its components. There are as many methodological as substantive challenges to such a thesis, which this text has sought to address as part of a research agenda. Legal texts providing for active participation in the global legal order can be most imperfect even in integrated spheres of action. What is more pressing to consider is the merger of sovereignty, territoriality and jurisdiction in a global world as an emerging matter for EU law.

"Constitutional Law and the Law of Evidence" Free Download
Cornell Law Review, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 14

BRANDON L. GARRETT, University of Virginia School of Law
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When a constitutional right conflicts with an evidentiary rule that would otherwise allow a piece of evidence to be admitted at trial, should the constitutional right be a “trump?? The Supreme Court and lower courts have often interpreted the Constitution to abstain from regulating questions of trial evidence. Taking the opposite course, courts have displaced evidence law to dramatic effect, as with the Court’s exclusionary rule, Confrontation Clause, and punitive damages jurisprudence. In areas that provide a more attractive model, the Court has instead sought to accommodate constitutional and evidence law. The fundamental problem of adjudicating the intersection of the Constitution and the law of evidence has not been the subject of judicial standards or academic commentary. Despite their importance, such questions have been seen as confined to the particular criminal or civil procedure contexts in which they arise. Indeed, I argue that due to this neglect, important rights, such as the Miranda right, have been misunderstood as outliers, sub-constitutional, or merely prophylactic. This Article develops why constitutional evidence law should in some respects be viewed apart from other areas of constitutional law. Second, I explore what norms should define the intersection of constitutional and evidence law. Third, I set out a framework in the form of standards of constitutional review, standards for avoidance, and canons of interpretation to govern intersections of constitutional law and the law of evidence. This Article ultimately seeks to describe the ways in which constitutional rights can intersect with rules of evidence, and how courts might more clearly and consistently approach such conflicts and questions. Far from being a subject to be avoided, constitutional rights have long protected against evidentiary abuses at trial. Conversely, evidence law principles can improve the effectiveness of constitutional protections and prevent unanticipated erosion of constitutional rights.

"Waiting in Line: Norms, Markets, & the Law" Free Download

DAVID FAGUNDES, Southwestern Law School
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This Article examines the social practice of waiting in line, showing that despite its reputation for drudgery, the queue offers rich insights about spontaneous order, social norms, and law itself. The Article begins by investigating the physical waiting line from the perspective of social norms, uncovering the surprisingly complex unwritten rules (and exceptions) that give queues stability even in the absence of legal governance or state enforcement. It then asks why these norms repeatedly produce informal, yet reliable, order among total strangers unlikely to interact again. This Article answers this question by looking to recent psychological research showing that people are strong reciprocators rather than selfish utility maximizers. This model makes sense of both our tendency to defer to line norms as well as the disproportionate sanctions with which defectors from these norms meet. This Article then turns to an issue still unexplored in the legal literature: The recent commercialization of lines in the form of VIP queues and paid line proxies. It examines and explains why some such markets have emerged even as others have not, and uses this descriptive account as the basis for a normative framework to determine when law should, and should not, intervene in the nexus of lines and markets. Finally, this Article reflects on the lessons that the physical queue delivers for lists in law more generally, which are familiar in contexts as varied as bankruptcy and immigration, organ donation and copyright registration. It shows that law’s lists mirror line norms to a surprising degree, and then investigates the possibility that despite the intuitive moral appeal of first come, first serve approaches, other means of arranging lists — such as alternative forms of priority or private reordering — may better serve law’s varied aims.

"Enforcing Global Law: International Arbitration and Informal Regulatory Instruments" Free Download
Journal of Legal Pluralism and Unofficial Law, 2015, DOI: 10.1080/07329113.2015.1010367

KATIA FACH GÓMEZ, University of Zaragoza
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This paper starts from the assumption that international arbitration easily fits in with a pluralist conception of global law. Globalization has created new informal instruments of regulation, and arbitration is an efficient tool for enforcing them. First, the paper presents a brief analysis of the most noteworthy international initiatives in the area of transnational legal indicators. It will become clear how these indirect regulatory instruments are contributing to the creation of a new regulatory profile in the area of arbitration. Second, a number of examples will show that both commercial and investment arbitration are receptive to the multiple appearances of legal pluralism in the arbitration arena. Arbitral awards are turning ever more frequently to instruments created and managed by the private sector – i.e., codes of conduct, economic indexes, economic indicators, financial premiums, valuation methods, audits – to resolve the complex disputes arising from international business. Third, sectorial arbitrations are striking examples of how private sector initiatives implement sophisticated private conflict resolution mechanisms. The paper will present a particularly detailed analysis of the international sports sector, in which an interesting symbiosis can be discerned: on the one hand this non-state sector has unilaterally created a large number of new instruments of global regulation – i.e., sports constitutions, charters, statutes, codes – that are resorting to arbitration to increase their independence from the public sector. On the other hand, sports arbitration – essentially, the CAS – is meanwhile significantly contributing to the sector’s maturity by actively participating in the consolidation of lex sportiva by means of its awards. Finally, the paper concludes with some reflections and ideas for further discussion.

"Carving Up Concepts? Differentiating between Trust and Legitimacy in Public Attitudes Towards Legal Authority" Free Download

JONATHAN JACKSON, London School of Economics & Political Science - Department of Methodology
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JACINTA GAU, University of Central Florida - College of Health and Public Affairs
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In recent years, scholars of criminal justice and criminology have brought legitimacy to the forefront of academic and policy discussion. The focus has been primarily – though not exclusively – on legitimacy within policing, with the most common approach framing legitimacy as a self-regulatory scheme that can enhance widespread voluntary compliance with the law and cooperation with legal authorities. In the most influential definition, institutional trust is assumed to be an integral element of legitimacy (Tyler, 2006a, 2006b). For an individual to find the police to be legitimate, for instance, she must feel that it is her positive duty to obey the instructions of police officers (she grants the police the rightful authority to dictate appropriate behavior), but she must also believe that police officers exercise their power appropriately. In this chapter we argue that the nature, measurement and motivating force of trust and legitimacy is in need of further explication. Considering these two concepts in a context of a type of authority that is both coercive and consent-based in nature, we make the case that legitimacy is (a) the belief that an institution exhibits properties that justify its power and (b) a duty to obey that emerges out of this sense of appropriateness; that trust is about positive expectations about valued behavior from institutional officials; and that legitimacy and institutional trust overlap if one assumes that people judge the appropriateness of the police as an institution on the basis of the appropriateness of officers' use of power. Our discussion will, we hope, be of broad theoretical and policy interest.

"Contract as Empowerment" Free Download

ROBIN BRADLEY KAR, University of Illinois College of Law
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This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment?. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm — such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.

The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive? theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.

To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines — like unconscionability — that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.

The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together — each serving its own distinctive but partial role — to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange — from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations — at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

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