Finding footing in a postmodern conception of law

Copyright @ 2010 Pace UniversityThe following jurisprudence paper examines the implications of postmodern thought upon our conception of law. In this paper I argue that, despite the absolute, all-consuming moral relativism towards which postmodernism seems to lead in its most extreme form, its acceptance in fact in no way undermines the possibility of finding solid ground for our legal principles. This paper contends that moral objectivity can be found in the individual experience of suffering generated by these very subjective concoctions. Subjective concoctions or not, they are real in that they imbue a sense of value into conditions, and may thus serve as foundational principles for law. While our value systems are stripped of all claim to objective authority, ultimately, all postmodernism does is force us to set aside our larger concepts of “justice,” and instead root our legal conceptions at this far more fundamental level of human experience

Buying commercial law: Choice of law, choice of forum, and network externalities

Copyright @ 2009 Bryan DruzinThis paper applies network effect theory to transnational commercial law, arguing that commercial parties selecting law through choice of law and choice of forum clauses can be likened to consumers selecting a product, and thus equally susceptible to the effects of network externalities. The number of “consumers” who subscribe to the same legal norms is analogous to the number of consumers who use a product. As the number of “consumers” increases, so too does the inherent value of selecting that jurisdiction, inducing even more parties to “purchase” that body of law. This is a network effect. I argue that transnational commercial law is ideally calibrated so as to generate a network effect. This stems from the inherent nature of commerce. The discussion distinguishes between two kinds of externalities, direct and indirect network externalities, concluding that network systems that possess both kinds of network externalities (as is the case with law-selection decisions in commercial contracts), are the best candidates to produce a robust network effect. I then examine how the twin ingredients of fluid interaction and frequent choice present in commerce precipitate a network effect; expansive interaction places a higher premium on the need for synchronization, and frequent opportunities to select law in the contracts of fresh commercial relationships allow for an incremental drift towards a specific jurisdiction. The paper ultimately concludes that, as a result, network externalities indeed play an influential role in the ascension of particular jurisdictions over others in law-selection decisions, an important conclusion as it points to an unrecognized influence underpinning the current development of transnational commercial law

The Parched Earth of Cooperation: How to Solve the Tragedy of the Commons in International Environmental Governance

This article proposes a way to strengthen international environmental agreements, such as the Paris Agreement and the Kyoto Protocol. Multilateral environmental agreements such as these are extremely fragile. At the heart of the problem is what is known as the tragedy of the commons—a unique dynamic that viciously sabotages cooperation. The cause of this tragedy is that no one can trust that other actors will conserve the common resource, which triggers a race to the bottom—a race to deplete. Global warming and our inability to halt it is perhaps the ultimate example of a tragedy of the commons on a truly massive scale. On a domestic level, the tragedy of the commons is easily solved through regulation. However, on a supranational level, where there is no overarching authority, governance mechanisms tend to collapse. The hard truth is that without robust enforcement of some kind, international cooperation is extremely difficult to maintain. This article proposes the following idea: governments joining (or already party to) an agreement, contribute an upfront deposit to an international regulatory body (the Commons Management Fund (“CMF”)) with the understanding that their contribution will be forfeited if they fail to honor their treaty commitments. The idea, while ostensibly simple, is deceptively complex. The focus is not the penalty, but rather the ability of governments to credibly signal commitment. In game theory, credible signaling can prevent a tragedy of the commons by generating confidence that everyone will stick to their commitments. The CMF is designed to exploit this effect. Now, more than ever, a solution to the tragedy of the commons on a supranational level is desperately needed—the CMF is such a solution

The criminalization of lying: Under what circumstances, if any, should lies be made criminal?

This is the post-print version of the Article. The official published version can be accessed from the link - Copyright @ 2011 University of Illinois PressThis Article argues that lying should be a crime. In doing so, we propose the creation of a wholly new category of crime, which we term “egregious lying causing serious harm.” The Article has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed. The main contribution of the Article lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. The analysis also contributes to a broader discussion regarding the issue of overcriminalization. We conclude that while criminalizing certain forms of lies might at first blush appear fanciful, the case for doing so is not only plausible, it is indeed necessary

Law without the State: The theory of high engagement and the emergence of spontaneous legal order within commercial systems

Copyright @ 2010 Druzin B.H.This paper examines the idea that commercial law has the capacity to evolve spontaneously in the absence of a clear state authority because of its unique nature. I argue that the manner of interaction implied by commerce plays a crucial role in this ability as it involves a high degree of overall engagement. This I term “high engagement,” which I divide into two elements: repetition and the creation of clear cycles of interaction. Together they produce identifiable legal norms and subsequent compliance. Game theorists have long recognized the importance of repeated interaction in inducing cooperation; however, how the manner of commercial interaction itself facilitates this process has been left largely unexamined. Part I presents a brief overview of the concept of reciprocity and spontaneous law theory. In Part II, a more detailed explanation of the notion of high engagement is offered. Here I set out exactly how high engagement is instrumental in the emergence of legal norms. Finally, the paper concludes that the element of high engagement indeed plays a decisive role in commercial law’s ability to evolve and function in a decentralized, spontaneous fashion—an important insight in terms of the future international development of the modern law merchant as it emerges in the absence of a single legislative authority

Planting Seeds of Order: How the State Can Create, Shape, and Use Customary Law

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide between the technical and the normative. After laying out how this may technically be achieved, the paper considers the normative legitimacy of this kind of socio-legal engineering, concluding that, while it may be theoretically possible to trigger the emergence of customary law, the normative implications of doing so are quite another matter, and as such it is difficult to see how such policies could ever be casually pursued

How to Destroy the Liberal International Order

This Article argues that a policy of containment directed at China could have disastrous consequences on the stability of the global system. The liberal international order, created to promote international coordination and structure global trade, comprises key institutions such as the United Nations, the World Trade Organization, the International Monetary Fund, and the World Bank. It is possible that much of the strength of these institutions stems from the fact that nations are locked into them simply because they are the only game in town. Put another way, the liberal order is, for lack of a better word, a monopoly. The problem with monopolies is that it is difficult to assess their true strength because it may simply be due to the absence of competition. This Article introduces the term brittle order to describe an institutional system where the lack of competition gives the impression of stability, but it is, in fact, fragile and primed to collapse. This Article argues that the current global system may be a brittle order. The risk in trying to isolate China is that it can destabilize the liberal order it seeks to protect because it will force China and its partners to establish parallel institutions, which will weaken the lock-in effect of the existing international order. If the liberal order is indeed brittle, disaffected countries will then begin to abandon its institutions, and it might quickly unravel. The Article thus concludes that the most effective way to ensure the liberal order survives is to maintain the strength of its lock-in effect, and the best way to do this is to discourage institutional competition by not isolating China from the global system

Anarchy, Order, and Trade: A Structuralist Account of Why a Global Commercial Legal Order is Emerging

While still fragmented, the world is witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macrolevel of state actors as well as on the microlevel of private individuals and organizations. On the macrolevel, the sources of this legal order are complex international agreements; on the microlevel, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in noncommercial areas of law such as criminal, tort, or family law. There is an overall asymmetry in the development of transnational legal order. But why is this occurring? This Article argues that the emergence of a global commercial legal order may be partially attributed to the unique structural nature of trade. The Article gives a structuralist account, positing that, unlike legal order of a non-commercial nature, commercial legal order has built-in mechanisms that make it particularly suited to evolve in a transnational context--that is, to evolve and sustain itself in the absence of a central legislative or coercive authority. The Article identifies and explores these built-in mechanisms. The Article concludes that, because commercial legal order is uniquely predisposed to emerge without the state, this asymmetry should not only continue but likely grow even more extreme

Can the Liberal Order be Sustained? Nations, Network Effects, and the Erosion of Global Institutions

A growing retreat from multilateralism is threatening to upend the institutions that underpin the liberal international order. This article applies network theory to this crisis in global governance, arguing that policymakers can strengthen these institutions by leveraging network effect pressures. Network effects arise when networks of actors—say language speakers or users of a social media platform—interact and the value one user derives from the network increases as other users join the network (e.g., the more people who speak your language, the more useful it is because there are more people with whom you can communicate). Crucially, network effect pressures produce what is called ‘lock-in’—a situation in which actors are unable to exit the network without incurring high costs and as a result become locked into the network. For example, because of their powerful network effect pressures, users of Facebook and the English language cannot easily exit these networks. International organizations such as the UN, the WTO, the IMF, etc., are networks of sovereign states that likewise produce network effect pressures. As such, intensifying their network effect pressure can lock countries more firmly into these institutions. To that end, this article proposes a suite of strategies policymakers may use to manipulate the network effect pressures generated by international organizations to strengthen these institutions and the multilateral treaties that establish them—an approach the article calls treaty hacking. The article offers a toolkit from which policymakers can draw to bolster the liberal order in the face of growing global instability and change