Table of Contents

Conscience in the Datasphere

Stephen Humphreys, London School of Economics & Political Science (LSE)

Transnational Governance Interactions: A Critical Review of the Legal Literature

Stepan Wood, York University, Osgoode Hall Law School, Osgoode Hall Law Journal, IRIS: Institute for Research and Innovation in Sustainability

Unearthing Bureaucratic Legal Consciousness: Government Officials' Legal Identification and Moral Ideals

Sally Richards, University of New South Wales (UNSW)

The Normative Force of Consent

Heidi M Hurd, University of Illinois College of Law

Commodification and Juridification in Football: Reflections on the Study of Law and Society

S. B. Archer, York University - Osgoode Hall Law School, Koskie Minsky LLP

Bystander Interventions

Sarah Lynnda Swan, Columbia University, Law School


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Conscience in the Datasphere" Free Download
Forthcoming, Humanity vol. 6(3), 2015
LSE Legal Studies Working Paper No. 11/2015

STEPHEN HUMPHREYS, London School of Economics & Political Science (LSE)
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Much of the anxiety concerning ‘privacy’ in contemporary conditions of data immersion — which I here characterise as ‘life in the datasphere’ — may be better understood by reference to the neglected notion of conscience. This article undertakes an historical inquiry into this rich concept to reframe the debate on privacy, law and technology. To simplify, ‘conscience’ has historically articulated an impulse either to hide from an omniscient moral authority (‘bad conscience’) or to act righteously according to informed reason (‘good conscience’). Originating as a powerful premodern governing principle combining personal with public morality — notably in the medieval notion of synderesis — the personal and political content of conscience were each effectively critiqued by, respectively (in the examples I investigate here), Freud and Hobbes. The concept itself became ultimately marginal to public life. In this article I suggest that conscience in both guises returns forcefully under conditions of data ubiquity, pointing to broader shift in political settlements.

"Transnational Governance Interactions: A Critical Review of the Legal Literature" Free Download
Osgoode Legal Studies Research Paper No. 35/2015
TBGI Project Subseries No. 21

STEPAN WOOD, York University, Osgoode Hall Law School, Osgoode Hall Law Journal, IRIS: Institute for Research and Innovation in Sustainability
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Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the importance of transnational governance interactions, but their accounts are tentative and incomplete for the most part. Scholars bring varying — often sharply divergent — theoretical, methodological and normative perspectives to bear on the issue. Some scholars focus on rule formation, others on monitoring or adjudication. Some investigate cooperation and convergence, others conflict and competition. Some examine interactions within a particular organization or program, others among programs or even between entire normative orders. Some emphasize description or explanation, others evaluation or prescription. In short, while understanding intersections among the multiple sites, scales and instances of law is a central concern of transnational legal scholarship, the picture that emerges is incomplete and fragmented.

"Unearthing Bureaucratic Legal Consciousness: Government Officials' Legal Identification and Moral Ideals" Free Download
International Journal of Law in Context, Volume 11 Issue 3, pp. 299-319, September 2015
UNSW Law Research Paper No. 2015-38

SALLY RICHARDS, University of New South Wales (UNSW)
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The legal consciousness of citizens receiving the law has been extensively explored but little attention has been paid to the legal consciousness of individuals applying the law. This paper draws on interviews with forty government officials in the Refugee Review Tribunal of Australia to address this concern, analysing how government bureaucrats think about law. In doing so, it identifies a series of underlying ideals informing the officials’ legal identification narratives. It presents a heuristic that positions bureaucratic legal identification in relation to broader moral ideals, demonstrating that as government officials’ identification with law increases so too does their idealisation of intellect and information processing. Conversely, as the officials’ identification with law decreases, their idealisation of experience and truth verification increases. These findings provide new insights into how law works in government, revealing bureaucratic legal identification as structured according to broader moral values, and thereby unearthing legal consciousness’ latent metacognitive dimension.

"The Normative Force of Consent" Free Download
Forthcoming in the Routledge Handbook on The Ethics of Consent, Peter Schaber ed. (Routledge Press, 2016).

HEIDI M HURD, University of Illinois College of Law
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This essay taxonomizes and examines eight possible accounts of the normative force of consent. Two of these construe consent as a source of liberty-limiting constraints upon the later actions of the person who gives consent. On these accounts, consent functions to foreclose the opportunity for later complaint about actions which may, nevertheless, remain serious wrongs. Six of the accounts I describe, however, characterize consent as a source of liberty-enhancing permissions that eliminate otherwise existing obligations on the part of those to whom consent is given. On these accounts, consent is a moral-game changer. While it may not do all the work that is required to make others’ actions moral, it eliminates any claim that such actions are wrongs to the person who gives consent. As such, these liberty-enhancing accounts are true to the notion that consent is morally magical — that it has the ability to create and destroy obligations in the blink of an eye, and thus constitutes a normative power that allows agents to change their moral landscape, to alter others’ moral legacies, and to author moral laws by will alone.

"Commodification and Juridification in Football: Reflections on the Study of Law and Society" Free Download
Southwestern Journal of International Law 21 (2014) 9-26

S. B. ARCHER, York University - Osgoode Hall Law School, Koskie Minsky LLP
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A review of certain themes in the literature discussing football (soccer) in contemporary law and society, with emphasis on commodification and juridification and reference to the 2014 World Cup. Drawing on a variety of literatures it is proposed that to better understand legal dimensions of football, it is useful to review globalization theories rooted in social, economic, and cultural conditions, and contrasts the recent rapid development of literature on football in the social sciences with a narrower treatment in legal literatures. It is speculated that an anxiety informs the treatment of social performances like football as “merely games? in contrast to "more serious" problems in law, politics or economics, and some dimensions of this anxiety are explored.

"Bystander Interventions" 
Wisconsin Law Review, Forthcoming

SARAH LYNNDA SWAN, Columbia University, Law School
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Bystander intervention strategies are emerging as a popular proposed solution to complex social problems like bullying in schools and online, sexual misconduct on college campuses, and harassment in the workplace. As the name suggests, bystander intervention initiatives encourage individuals who witness such harms to adopt an active, interventionist approach in stopping them. For example, a teenager who sees another student being bullied on a website, a college student who observes a heavily intoxicated female student being led into a bedroom by a male companion, and a work colleague who overhears a sexist or racist joke are encouraged to either intervene to prevent a situation from escalating, or to report an incident after it has occurred. The belief that bystander interventions can combat these harms is so strong that in some instances, the implementation of bystander intervention initiatives is becoming legally required.

Ironically, at the same time as law is starting to require the implementation of bystander intervention initiatives, law also functions as an impediment to successful bystander intervention. First, while bystander intervention programs try to create a norm of intervention, most legal norms support non-intervention, giving rise to a “competing prescriptions? problem most commonly resolved with inaction. Second, a lack of legal accountability for the surrounding institutions and organizations indirectly discourages bystander intervention. Finally, a perceived risk of liability associated with intervention immobilizes many bystanders. Unless these legal impediments are minimized, bystander intervention is unlikely to achieve its potential as a solution to social problems.

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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.

Editor: Richard H. McAdams, University of Chicago

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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