Contract Formation through Preemptive Normative Conflict Resolution

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Detection and resolution of normative conflicts in multi-agent systems : a literature survey

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Stakeholder jurisprudence: the new way in human rights

Making use of United Nations (U.N.) materials and documents, Anja Matwijkiw and Bronik Matwijkiw argue that the organization – in 2004 – converted to a stakeholder jurisprudence for human rights. However, references to “stakeholders” may both be made in the context of narrow stakeholder theory and broad stakeholder theory. Since the U.N. does not specify its commitment by naming the theory it credits for its conversion, the authors of the article embark on a comparative analysis, so as to be able to try the two frameworks for fit. The hypothesis is that it is the philosophy and methodology of broad stakeholder theory that best matches the norms and strategies of the U.N. While this is the case, certain challenges nevertheless present themselves. As a consequence of these, the U.N. has to – as a minimum – take things under renewed consideration

Regulatory Horcruxes

The regulator that designs and first implements a federal regulatory program does not always have the ability to control the timing and process of how that regulatory program will, in this Symposium’s language, “exit.” As the 2016 election has demonstrated, the initiating regulator cannot necessarily plan in advance for the program’s expiration, diminution, or scaling back. A successor instead wields this power. Whether one views this as a terrible thing or a salutary feature of democracy depends in part upon one’s relationship to the regulatory status quo, but also implicates broader questions about policy stability and democratic accountability. At the very least, however, this fact raises several important questions about strategic regulatory design. First, is it possible to insulate or harden regulatory programs from successor exit? And second, when, if ever, would this be a good thing? This Article offers a systematic account of how regulators can make regulatory exit more challenging by looking outward, beyond the walls of a single, primary federal agency to other potential regulators or co-regulators, including secondary federal agencies, the states, and private actors. This Article identifies as a potential antidote to regulatory exit a constellation of strategic techniques that I call regulatory horcruxes—much like the horcruxes Lord Voldemort created by placing portions of his soul into multiple external objects in order to ensure his immortality. An initiating regulator, be it Congress or a federal agency, can use such horcruxes in an effort to make successor exit more difficult by splitting programs beyond the walls of a single federal agency into other institutions. This Article first offers an analytical framework laying out five primary types of horcrux. It then examines horcruxes from a normative perspective, evaluating the comparative benefits and costs of their use in terms of their potential impact both on the durability of regulatory programs and on the quality of democratic deliberation. It acknowledges that horcruxes are an imperfect solution. Although dispersal or fragmentation of regulatory authority may insulate a program from deregulatory pressure, the fragmented regulatory program may exist in a weakened form that cannot accomplish as much as more direct, centralized regulation can. The Article concludes by offering a research agenda, including suggestions for further empirical research

Western Institution Building:The War, Hayek’s Cosmos and the WTO

Despite the shortcomings of Hayek’s spontaneous order, there is a positive side, perhaps even a positive feedback. Hayek left us with a “what if” question and returns us to that initial opening of Pandora’s Box, or perhaps the initial onset of neo-realism, neo-liberalism, developmentalism, globalism, transnationalism and other concepts, precepts and adjectives justifying institution building by bargaining and military force. In terms of new world order, institution building by necessity requires fundamental changes in governmental structures in non-Western cultures and nation-states such as China, Afghanistan and Iraq. Such changes are being prompted by means of political, economic and military powers of the U.S. and other developed nation-states, and international intergovernmental organizations dominated by developed nation-states such as the World Trade Organization. However arguably well intended there remains the question of what will eventually result from the introduction of Western institutions into non-Western cultures and developing countries. This article explores F. A. Hayek’s discourse concerning taxis and cosmos (Kosmos), in terms of institution building. This article addresses why China presents an instance of institution building by bargaining, while countries such as Iraq and Afghanistan offer instances of institution building by military force, then directs emphasis toward institutional and constitutional reform, and an evolution of Western law in non-Western cultures and developing nation- states such as China, Afghanistan, and Iraq. Although Hayek may have had contrary intentions, his discourse on taxis and cosmos (Kosmos), and spontaneous order, nonetheless, challenges a modern Western world to rethink its priorities and policies, and perhaps even foundational ideologies, especially in the realm of rebuilding non-Western cultures and developing countries.Western, Institution building, F. A. Hayek, War, WTO, Cosmos, constitutions, laws, international, politics, economics, military, force, neo-realism, neo-liberalism, developmentalism, globalism, transnationalism

Justifying the State from Rights-Based Libertarian Premises

Although many libertarians share similar moral foundations, they disagree about whether the state can be justified. The most famous libertarian attempt to justify the state is that of Robert Nozick. This attempt has been criticized by, among others, the libertarian anarchist Murray Rothbard. In this article, Nozick’s theory and Rothbard’s critique are discussed, as well as some other attempts to justify the state from libertarian premises. Keeping the criticisms of those theories in mind, an alternative theory, which attempts to bypass the criticisms, is put forward. This alternative theory explains how a state—most probably a nonminimal democratic state—can legitimately be formed in a condition of anarchy without violating anyone’s libertarian rights. One result of this is that the rights-based case for minarchism is severely weakened

Vows as contract in Ottoman public life (17th-18th centuries)

Starting sometime in the seventeenth century, vows (nezir, Ar. nadhr) began to be used in the central lands of the Ottoman Empire as a means to seal contracts of a public nature. Although these vows were similar to the more common and older forms of customary compacts that also pertained to public matters, vows had a better defined status in sharia and could entail worldly liability in addition to moral/religious obligation. Using court records and fatwa collections, I argue that vows exemplified the expansion of legality and control of the state over custom and morality, as well as the recognition of a customary device of contract and its penetration into the legal sphere. On a secondary level, I also provide new material on contemporary political culture and the question of legal pluralism in the Ottoman context

Arbitration as Contract: The Need for a Fully Developed and Comprehensive Set of Statutory Default Legal Rules

This Article analyzes the United States Federal Arbitration Act, as a statutory framework for effective arbitration of contract disputes. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts—most often from the perspective of consumer or employment arbitration—this Article focuses specifically on commercial, business-to-business arbitration and critically evaluates the Act as a set of default legal rules governing arbitration as a unique contractual business relationship. The Article first looks at arbitration from a contractual default rules perspective and then employs this perspective to analyze: (1) the existing federal statutory scheme; (2) the developing body of federal “common law” governing arbitration; (3) the potential impact of state legislation governing arbitration; and (4) the use of private rules to govern arbitration. Finally, the Article looks at the related doctrines of “competence-competence” and separability under U.S. law, specifically focusing on the Supreme Court’s recent decision in Rent-A-Center, West, Inc. v. Jackson. The Article ultimately concludes with a call for an entirely new federal statute governing both domestic and international commercial business-to-business arbitration

Placid, Clear-Seeming Words: Some Realism about the New Formalism (With Particular Attention to Promissory Estoppel)

This Article examines the recent doctrinal shift from realist jurisprudence to the “new formalism” as it arises in the creation of contract obligation. Many recent decisions involving promissory estoppel appear to display a trend away from reliance protection in the commercial world. While these decisions are formalist insofar as they favor textual forms over contextual forms, the Author argues that this trend is more properly characterized as a realist effort. This Article examines promissory estoppel in the commercial world and suggests that the “new formalism”, driven by the most “realist” of motives, will expunge liability for promissory estoppel in the commercial domain