Table of Contents

Good Faith and Fair Dealing as an Underenforced Legal Norm

Paul MacMahon, London School of Economics - Law Department

Mea Culpa: Lessons on Law and Regret from U.S. History (Contents Page and Introduction)

Steven W. Bender, Seattle University School of Law

Deconstructing the Religious Free Market

Jianlin Chen, University of Hong Kong - Faculty of Law, University of Chicago - Law School

Genealogies of Lex Mercatoria

Nikitas Hatzimihail, University of Cyprus, Department of Law, Université Libre de Bruxelles (ULB)

Hidden Expropriation in Globalization and Soft Law Protection of Communal Property Rights

Ting Xu, Queen's University, Belfast

Ethnic Narratives and Indigenous Rights in Indonesia: A Case Study from Merauke, Papua

Irene Hadiprayitno, Leiden University

Global Citizens and Family Relations

Yuko Nishitani, Kyushu University - Graduate School of Law

Marriage: A Human Right for All?

Paula Gerber, Monash University - Faculty of Law
Kristine Tay, Monash University, Faculty of Law
Adiva Sifris, Monash University - Faculty of Law


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Good Faith and Fair Dealing as an Underenforced Legal Norm" Free Download
LSE Legal Studies Working Paper No. 22/2014

PAUL MACMAHON, London School of Economics - Law Department
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American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an expansive standard. This article proposes a novel interpretation of the doctrine that accommodates both the rhetoric of good faith and fair dealing and the reality of judicial enforcement. Good faith and fair dealing, the article contends, is an underenforced legal norm. The duty is valid as a legal norm to the fullest extent, even though courts engage only in partial enforcement of that norm. This article is the first to bring the idea of underenforced legal norms into private law, drawing on the extensive literature on underenforced legal norms in constitutional law, and on analogous ideas in corporate law. The article explores the reasons why legislatures and courts might want to announce a duty whose scope extends beyond what the courts enforce. In private law, as elsewhere, the underenforcement idea allows courts to lend their expressive support to the broader norm while avoiding the negative side effects that attempted full enforcement would entail.

"Mea Culpa: Lessons on Law and Regret from U.S. History (Contents Page and Introduction)" Free Download
NYU Press, January 2015
Seattle University School of Law Research Paper No. 14-18

STEVEN W. BENDER, Seattle University School of Law
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In Mea Culpa, Steven W. Bender examines how the United States’ collective shame about its past has shaped the evolution of law and behavior. We regret slavery and segregationist Jim Crow laws: we eventually apologize while ignoring other oppressions, and our legal response to regret often fails to be transformative for the affected groups. By examining policies and practices that affected the lives of groups that have been historically marginalized and oppressed, Bender is able to draw persuasive connections between shame and its eventual legal manifestations. Analyzing the United States’ historical response to its own atrocities, Bender identifies and develops a definitive moral compass that guides us away from the policies and practices that lead to societal regret.

Mea Culpa challenges its readers. We think of ourselves as exceptional and enlightened, but are we really? In a different era, might we have been slave owners or proprietors of a racially segregated establishment? It’s easy to judge immorality in the hindsight of history, but what current practices and policies will later generations regret?

More than a historical survey, this volume offers a framework for resolving some of the most contentious social problems of our time. Drawing on his background as a legal scholar, Bender tackles immigration, the death penalty, the war on terror, reproductive rights, welfare, wage inequity, homelessness, mass incarceration, and same sex marriage. Ultimately, he argues, it is the dehumanization of human beings that allows for practices to occur that will later be marked as regrettable. And all of us have a stake in standing on the side of history that resists dehumanization.

"Deconstructing the Religious Free Market" Free Download
3 Journal of Law, Religion and State 1-24 (2014)

JIANLIN CHEN, University of Hong Kong - Faculty of Law, University of Chicago - Law School
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Scholars have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. But given that the desirable normative interpretations of these two clauses differ widely, the nature of the resulting market is inevitably dependent on one’s choice of these contested interpretations. Similarly, the “entitlement to free religious competition? depends on the definition of “religion.? The present article deconstructs the religious free market into its legal components and discusses critically how the different interpretations and combinations of these legal components materially affect the resulting religious market.

"Genealogies of Lex Mercatoria" Free Download
Athens Faculty of Law, STUDIES IN MEMORIAM OF PROFESSOR ANTHONY M. ANTAPASIS (Athens, 2013: Ant. N. Sakkoulas), pp. 411-452

NIKITAS HATZIMIHAIL, University of Cyprus, Department of Law, Université Libre de Bruxelles (ULB)
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The historical study of mercantile law has, without a question, much to teach both business and private international lawyers. Such study requires a sophisticated methodology that combines the rigour of professional historians with understanding of doctrinal complexity. However, most of the popular historical narratives about the “old? law merchant have little to contribute to historical scholarship and appear instead primarily concerned with genealogy: their principal aim is to inspire their audience or to provide argumentative weapons to their party in the modern debates about lex mercatoria and the governance of transnational business activities. In comprehensive historical accounts and casual references to a common historical consciousness alike, the “ancient? law merchant is presented as an autonomous, cosmopolitan, transnational legal system. This imagery is also recurring in the modern conflict-of-laws literature, as well as domestic commercial law. It permeates historical narratives in comparative law and doctrinal legal history. The ancient law merchant even serves as case-study material for legal and economic theorists.

The power of this historical imagery masks its weak historical validation. Especially in recent years, a number of legal historians have refuted much of lex mercatoria genealogy, providing alternative stories about the legal treatment of commerce in medieval and early modern Europe. However, such historical revisionism has so far made few inroads among mercatorists or even in the mainstream of international business law: the romance of the law merchant still casts a powerful spell.

That the mercatorists’ historical imagery persists in spite of these refutations suggests that what matters, for the debate, is not so much what actually happened, but what projections into the past align best with present circumstances and what constructions of the past are used to justify explanations of the present. On the one hand, historical narratives as a whole support the notion of a transnational, cosmopolitan law merchant. On the other hand, when examined in detail or in contrast to each other they illustrate the internal divisions within the mercatorist alliance.

In an earlier study that illustrated this point [Hatzimihail, "The Many Lives - and Faces - of the Lex Mercatoria: History as Genealogy in International Business Law", 71 L. & CONTEMP. PROBS. 169 (2008)], I examined in detail two paradigmatic narratives of lex mercatoria historiography: the principal historical accounts provided by the two founding fathers of the modern lex mercatoria, Clive Schmitthoff and Berthold Goldman. Schmitthoff and Goldman were instrumental in the formation and shaping of the lex mercatoria discourse from its beginnings in the early 1960s until the late 1980s. More generally, they played important roles in the academic elaboration of international commercial law and international commercial arbitration. They are also regarded as emblematic of the two basic approaches to lex mercatoria—with Schmitthoff emphasizing the use of state and nonstate sources, and Goldman insisting on the stateless (a-national) character of lex mercatoria. Of their many works, I chose for my textual analysis two classic essays providing a comprehensive outlook of the authors’ respective worldviews and normative projects: genealogical narratives form a vital part of the argument in both essays.

The present essay largely reprises my previous examination of Schmitthoff’s and Goldman’s historical narratives, in Sections III and IV respectively. It also includes a third case study – the mercatorist historical narrative of Friedrich Juenger, a private international lawyer sympathetic to lex mercatoria (Section V). Unlike Schmitthoff and Goldman, Juenger is not a canonical figure of lex mercatoria, but his text is characteristic of his own discourse and relates to the two canonical narratives. The three texts considered are also separated by each other chronologically by a distance of around two decades: Schmitthoff in the early 1960s, Goldman in the early 1980s and Juenger in 2000.

The different point in time that each was written should probably be taken into account, as having somewhat influenced both the ideas expressed and their explicitness (indeed, the point in each author’s career at the time of writing must be also be considered), but the ideas expressed here continue to represent different streams of thought that remain alive – and distinct – to this day. It would be a mistake, therefore, to see the three texts as representing a unitary evolution of thinking about lex mercatoria, old and new.

The three case studies are preceded by another sort of genealogy in Section II: a survey of historical invocations from the early modern era to the early twentieth century, i.e. the period prior to the emergence of a new lex mercatoria.

"Hidden Expropriation in Globalization and Soft Law Protection of Communal Property Rights" Free Download

TING XU, Queen's University, Belfast
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In the context of globalization, expropriation is no longer an issue that may only be considered at the domestic level, as more non-state actors not only increasingly become the victims of expropriation, but also are exercising the power to expropriate property. The rise of ‘hidden expropriation’ involves different interests, tensions and conflicts whether at the local, regional or global levels. The lack of a level playing field between competing claimants calls for strengthening the role of the international community and involving non-state actors in setting out global standards and rules to redress those imbalances, taking into account marginalized groups such as minorities and indigenous peoples. However, how can expropriation law be transformed from national laws to global standards that transcend national and regional differences? Employing the human rights approach has been such an endeavour. Yet in contrast to the recognition of individual property rights in international human rights instruments, treating communal property rights as an actual fundamental human right is highly contentious. This chapter examines the nature of hidden expropriation in globalization and the possibility, desirability, and limits of using soft law standards to protect the right to communal property, probing this power relationship in the global age. The emerging soft law protection of communal property rights gives rise to debates over the content and scope of property rights, powers regarding expropriation, the legitimacy of expropriation, compensation standards, and so on. These debates revive and recast old issues such as those surrounding legality and power regarding rule-making, and they challenge the distinction between ‘binding’ and ‘non-binding’ norms in the international legal system.

"Ethnic Narratives and Indigenous Rights in Indonesia: A Case Study from Merauke, Papua" Free Download

IRENE HADIPRAYITNO, Leiden University
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The realisation of indigenous rights to land as stipulated in the UN Declaration on Rights of Indigenous Peoples entails that its norms and principles need to be activated in order to function at the grassroots level. In Indonesia, narratives of ethnicity are frequently deployed at the levels of discourse and practice to suggest that these rights accrue only to those peoples who are indigenous and to contextualise the position of indigenous peoples in the legal and political systems. However, does a reference to ethnicity achieve certain ends pertaining to the protection of indigenous lands? Can ethnicity achieve the promise of autonomy to which supporters of indigenous rights aspire? Upon examination of the case of indigenous land of the Marind Anim in Merauke Papua, Indonesia, it is revealed that national, legal and political discourses surrounding ethnicity in the context of the relationship between Papua and Indonesia have shaped the social practices through which claims towards the protection of indigenous rights are being constructed. Furthermore, in their interactions, laws, norms, practices and actors not only demonstrate the gap between demands and how equal solutions for protection indigenous rights are asserted, they also pose some risks in limiting political dialectics on autonomy for indigenous peoples.

"Global Citizens and Family Relations" Free Download
Erasmus Law Review, Vol. 7, No. 3, 2014

YUKO NISHITANI, Kyushu University - Graduate School of Law
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As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.

"Marriage: A Human Right for All?" Free Download
2014 36(4) Sydney Law Review 643

PAULA GERBER, Monash University - Faculty of Law
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KRISTINE TAY, Monash University, Faculty of Law
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ADIVA SIFRIS, Monash University - Faculty of Law
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Article 23 of the International Covenant on Civil and Political Rights contains an express right to marry. This article analyses this provision, other United Nations human rights treaties, and relevant jurisprudence to determine whether art 23 applies to same-sex couples. In the only authoritative interpretation of art 23, Joslin v New Zealand, the United Nations Human Rights Committee found that it does not apply to same-sex couples. However, that decision is more than 12 years old and arguably would not be decided in the same way should a similar case come before the Human Rights Committee in the future. Using the principles of treaty interpretation, this article asserts that Joslin v New Zealand is no longer good law, and concludes that the right to marry should be interpreted in a non-discriminatory manner and should not be restricted exclusively to opposite-sex couples. This article also seeks to start a dialogue about the human right to marry’s intersectionality with and indivisibility from other human rights. As such, it suggests new, progressive ways of interpreting the norms of the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child as they relate to the human right to marry.

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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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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