Exit and Voice in the Age of Globalization

The globalization of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a race to the top, an international race to the bottom, spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, it also challenges principles of democracy and self-determination. As competition constrains nations\u27 available choices, individuals have fewer opportunities to play a meaningful role in shaping their lives through the national collective decisionmaking process. Largely pessimistic analyses of these collective action challenges have been dominated by the Westphalian paradigm- a model of international relations that views global conflicts solely in terms of the 200-some sovereign states that constitute the global arena. The paradigm operates on the still-prevailing premise that nation-states are unitary actors engaging in international competition.1 Even those writers who are themselves aware of the diverse domestic forces that actually shape national policies stop short of identifying the deficiencies - both descriptive and normative - of the Westphalian paradigm. This Article argues that the Westphalian paradigm is inadequate: by focusing exclusively on interstate relations, it obfuscates the crucial role played by competing domestic interest groups in the international arena. This Article advocates a different paradigm - the transnational conflict paradigm - that better explains various collective action failures and points the way toward mechanisms that might correct these problems. At its core lies the observation that states are not monolithic entities; and that many of the pervasive conflicts of interest are in fact more internal than external, stemming from the heterogeneity within, rather than among, states. Indeed, the transnational conflict paradigm shows how domestic interest groups often cooperate with similarly situated foreign interest groups in order to impose externalities on rival domestic groups. The better-organized, and hence more politically effective, domestic interest groups - usually producers, employers, and service suppliers - cooperate with similar interests in different states to exploit less-organized groups such as consumers, employees, and environmentally vulnerable citizens. Thus, the transnational conflict paradigm attributes many global collective action failures to conflicts among warring domestic groups rather than international competition among states

The International Law of Prolonged Sieges and Blockades: Gaza as a Case Study

In 2007, after Hamas’ takeover of the Gaza Strip, the area was subjected to an Israeli land siege, complemented in 2009 by a sea blockade. Since then, the already-dire living conditions in the Strip have declined consistently and the area’s dependence on external aid has grown. Yet, there is no end in sight for either the siege or the blockade, or – by extension – for the inhumane circumstances of the Strip’s population. This essay examines the duties of a military power in imposing what is effectively a years-long confinement of people and outlines a general argument for expanding the obligations of a party that imposes a prolonged siege or blockade. I consider these obligations in light of three potentially relevant legal frameworks: the law of occupation; international humanitarian law; and human rights law. In this essay, I argue that, although Gaza is no longer occupied, Israel, in exercising prolonged siege and blockade, must respect a set of obligations that encompass much more than simply not starving the besieged population or not cutting off their water supply. Paying attention only to the basic, biological needs of the besieged population ignores their human dignity because it reduces – in the eyes of the blockader – human existence to the intake of food and water. The essay concludes that the law should be interpreted as demanding that the besieger respect a wider scope of rights – including, among others, the right to enter and exit the besieged area – and, while it may limit such rights, such limitations must be compatible with the requirements of proportionality, taking into account the human toll caused by the extraordinary yet long-term situation

Regulatory Capture and the Marginalized Majority: The Case for the Constitutional Protection of the Majority’s Disposable Income

The constitutional protection of private property is rooted in the notion that individual rights ought to be insulated from the tyranny of the majority. However, as public choice theory teaches us, democratic decision-making suffers from another systemic failure that is no less pernicious, no less ubiquitous, but less transparent: interest groups are capable of steering government to favor their narrow interests at the expense of diffuse citizens and the broad public interest. In this Essay we argue that this ‘capture’ characteristically results in anticompetitive regulatory measures that inflate the prices of products and services above their competitive market price or reduce their quality. Such measures transfer wealth from the many to the few, as they diminish the value of diffuse citizens' disposable income in terms of purchasing power. We propose to conceive of this loss as a potentially unconstitutional taking of the diffuse citizens’ property. Our account challenges the Madisonian assumption, embedded in the Constitution, that constitutions must protect the property rights of the propertied minority against the tyranny of the deprived majority. We argue that the Constitution must also limit another type of taking, effected when a minority solicits anticompetitive government measures that diminish the value of the disposable income of the marginalized majority. Accordingly, anticompetitive regulation catering to special interests will be deemed prima facie unconstitutional unless it is necessary to promote public purposes

War is Governance: Explaining the Logic of the Laws of War From a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. We pry open the black box of “the state” and examine the complex interaction between the civilian and military apparatuses seething beneath them veil of sovereignty. Our point of departure is that military conflicts raise significant intrastate conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nation’s interests are likely to prefer that international norms regulate warfare. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and it outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that as a practical matter, international law enhances the ability of states to amass huge armies because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run states with massive armies are its greatest beneficiaries

War is Governance: Explaining the Logic of the Laws of War From a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. We pry open the black box of “the state” and examine the complex interaction between the civilian and military apparatuses seething beneath them veil of sovereignty. Our point of departure is that military conflicts raise significant intrastate conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nation’s interests are likely to prefer that international norms regulate warfare. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and it outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that as a practical matter, international law enhances the ability of states to amass huge armies because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run states with massive armies are its greatest beneficiaries