LAW, NORMS & INFORMAL ORDER eJOURNAL

"The Geography of Solving Global Environmental Problems: Reflections on Polycentric Efforts to Address Climate Change" Free Download
58 New York Law School Law Review 777 (2013-14)

HARI M. OSOFSKY, University of Minnesota - Twin Cities - School of Law
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This essay considers how we might fit local efforts to address climate change, especially those by very small, suburban cities, within models for solving "global problems." While acknowledging the need for more action on climate change at international, national, and state levels, and regional ones in between, this essay explores how different types of cities, as they participate in multilevel networks, can provide models for action and complement efforts to address climate change through the treaty regime. Using a diverse group of suburbs in the Twin Cities metropolitan region making innovative climate change and sustainability efforts as a case example, it analyzes pathways for small governments — which may be more nimble due to their geographic size and smaller number of people in charge — to: (1) learn from other localities and find cost-effective approaches to reducing emissions, and (2) serve as a constructive influence on national and international efforts to address climate change.

"Building Networks for Sustainability: The Role of International Organizations" Free Download
Forthcoming in UNIDO, Networks for Prosperity: Advancing Sustainability through Partnerships (2014)

KENNETH W. ABBOTT, Arizona State University
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Governance for sustainability has made a striking turn to “transnational? institutions, in which non-state actors – including business firms, civil society groups and sub-national governments – play major roles along with or instead of national governments. Their numbers have expanded rapidly, especially in areas such as climate change.

In their internal structures, many transnational organizations resemble networks: they bring together multiple stakeholders that coordinate their contributions to the organization as well as organizational decision-making. In addition, many transnational actors and organizations are linked in broader networks, formed autonomously or sponsored by other institutions. International organizations (IOs) have played important roles in these developments. Yet numerous transnational sustainability organizations operate almost wholly independently; and many networks, such as the “action networks? of Rio 20, remain weak.

There remains, therefore, a significant role for IOs in facilitating, promoting and coordinating sustainable development organizations and networks, to maximize their contributions to knowledge creation, sharing and capacity-building, policy- and rule-making, financing and practical initiatives. IOs can also steer transnational organizations and networks to focus on democratically established goals and priorities, such as the sustainable development goals (SDGs) now being negotiated. The governance strategy of “orchestration? enables IOs to catalyze the formation of networks; provide guidance and support to them; and steer their conduct, albeit in modest ways. It allows IOs to enhance their own impact by working through networks, while strengthening and guiding those networks in line with public goals.

"Objecting to Race" Free Download
Georgetown Journal of Legal Ethics, Vol. 27, 2014

ANTHONY VICTOR ALFIERI, University of Miami School of Law
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Modern efforts by bar associations, courts, and legislatures to regulate the use of race talk in civil rights and criminal cases have faltered not only in describing its various race-neutral, race-coded, and race-conscious forms, but also in prescribing the scope of its permissible use under legal ethics codes and standards, judicial rules, and statutes. The descriptive and prescriptive difficulty of defining and regulating race talk in the courtroom and in advocacy more generally raises fundamental normative and instrumental questions about racial justice and professional ethics in the lawyering process, a process marked by the daily exercise of mainly unseen and mostly unaccountable discretion. Normative questions –– whether lawyers should object to race –– turn on intrinsic personal and professional value commitments to race, dignity, identity, and role. Instrumental questions –– when and how lawyers should object to race –– rest on tactical, outcome-oriented calculations about the best interests of clients, groups, organizations, and sometimes whole communities. This Essay revisits ongoing questions of race talk and racial representation in the context of current civil rights and criminal justice practice through the prism of the recent United State Supreme Court decision in Calhoun v. United States and its underlying federal trial and appellate proceedings. Building on Calhoun’s factual and legal foundation, the Essay proceeds in three parts. Part I explores the definition of race talk garnered from the text of Justice Sotomayor’s statement in Calhoun. Part II examines the prosecutorial exploitation of race talk gleaned from the briefs of the U.S. Attorney’s Office for the Western District of Texas and the Solicitor General’s Office of the U.S. Department of Justice. Part III considers defense-driven objections to race talk culled from the Calhoun defense team’s federal appellate brief and petition for writ of certiorari and from the opinions of the U.S. Court of Appeals for the Fifth Circuit and the statement of Justice Sotomayor. Although limited in scope, the Essay seeks in pursuing these inquiries to transform the pedagogy and practice of civil rights and criminal law in American courtrooms as well as in law school classrooms and community clinics.

"Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort" Free Download
American Journal of Comparative Law, Vol. 62, p. 401, 2014

MATHILDE COHEN, University of Connecticut - School of Law
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This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized.

The Article distinguishes two types of high court deliberations, which I call the “ex ante? and the “ex post? models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court’s merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of Anglo-American supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided.

Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court’s style of judicial opinions may form deliberations as much as deliberations shape opinions.

"Restorative and Flexible Customary Procedures and Their Gendered Impact: A Preliminary View on Namibia's Formalization of Traditional Courts" Free Download

ELINE PETERS, Graduate School of Social Sciences - University of Amsterdam
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JANINE UBINK, University of California, Irvine - Law School, Leiden University - Law School
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From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recognizes Namibia’s traditional courts and creates linkages between the customary and the state legal system. The Act envisages several procedural changes in the operation of traditional courts and this article evaluates whether these changes are likely to empower women to make more effective use of the customary justice system. The article describes and analyses customary procedures in traditional courts in the Kunene, Caprivi and Oshana regions of Namibia. It specifically focuses on three prominent characteristics of customary justice systems: their restorative nature, their flexibility and their gendered impact. The article finds that several procedural aspects form barriers to women's access and participation in traditional courts. These aspects include unclear planning and time-consuming procedures, the lack of female councilors, and cultural barriers for women to report cases. The article furthermore shows that customary justice systems’ negotiable and flexible character also forms a likely barrier for women as they often do not have the same knowledge and bargaining power in traditional courts as their male counterparts. The article concludes that while the Community Courts Act is likely to impact positively on the administration of justice by the traditional courts through the allocation of stronger powers to serve processes, summon witnesses, and enforce decisions, the Act does not address the procedural issues identified as detrimental to women's customary legal empowerment.

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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