Luck, justice and systemic financial risk.

Systemic financial risk is one of the most significant collective action problems facing societies. The Great Recession brought attention to a tragedy of the commons in capital markets, in which market participants, from the first-time homebuyer to Wall Street financiers, acted in ways beneficial to themselves individually, but which together caused substantial collective harm. Two kinds of risk are at play in complex chains of transactions in financial markets: ordinary market risk and systemic risk. Two moral questions are relevant in such cases. First, from the standpoint of interactional morality, does a person have a moral duty to avoid risk of harm to others if their financial transactions contribute in some way, however small, to the loss or harm? This article identifies the conditions in which persons are morally responsible in such cases. Second, from the standpoint of institutional morality, how should society distribute the risk of harm associated with massively complex financial markets? This question is considered in the context of the home mortgage credit market. Luck egalitarianism, in particular a Dworkinian insurance scheme to allocate risks and resources relating to mortgage credit and private home ownership, offers substantial promise

Transatlantic Divisions in Methods of Inquiry About Law: What It Means for International Law

It is based on a presentation at a workshop at the University of Leicester on “The Neglected Methodologies of International Law: Empirical, Socio-Legal and Comparative,” on January 31, 2018. The chapter explores a question that many have voiced but which is difficult to answer: why do differences persist in approaches to research and scholarship about international law, as between the United States and Europe, and even within the Anglo-American tradition as between British and American traditions? There are likely many reasons and this is not a study of “causes.” It is an exercise in interpretation. It locates the differences in traditions of inquiry about the law in general and international law more particularly in two frames, one based in the rise of the analytical and empirical sciences in the United States and the other in the rise of the critical tradition in the wake of American Legal Realism. The chapter proceeds on an assumption that to understand how international legal scholars perceive their methods is to be explored from the perspective of the history of the social sciences and the humanities generally. It places the current work of international legal scholars in the context in which they operate within the broader university and community of scientists and humanists

Redesigning Global Trade Institutions

This is a draft of an essay for the symposium, 2021: International Law Ten Years from Now, held by the Southwestern Journal of International Law in cooperation with the International Law Association (American Branch) Weekend West. The essay deals with two questions. First, what is to be of the WTO and world trade institutions generally? It examines the rise of regionalism in international trade agreements and possible roles for variable geometry for the WTO. The essay critiques proposals to move towards (or back to) plurilateralism for the WTO. Second, what should trade agreements do? This question goes to the core values and operating principles for trade institutions. I argue that governments should take questions of distributive justice seriously in the design of global trade institutions

Anglo-American Jurisprudence and Latin America

This Article attempts to describe certain characteristics of Latin American legal culture that have jurisprudential implications and to inquire into certain themes of jurisprudence in the context of these cultural characteristics. A syncretic approach to jurisprudence may allow Latin American countries to formulate ideas about, and potential solutions to, widely recognized fundamental problems in their legal systems. Section I of this Article examines four conflicts between law and society in Latin America: 1) the conflict between the customary law of the informal sector and formal law, 2) the conflict between the bureaucratic ideal of the civil law judge and the heterogeneous, evolving social realities in Latin America, 3) the widespread evasion of formal law in Latin America, often to accomplish socially and economically desirable transactions, and 4) the de facto legitimacy of non-constitutional governments and the laws they enact as a longstanding tradition in Latin America. Section II of this Article uses these conflicts as a basis for making fundamental inquiries into the nature of law in Latin America. Section II also compares certain dominant themes in the jurisprudence of the United States with Latin American jurisprudence and identifies the fundamental distinction between the two legal cultures: the idealist, philosophical approach of Latin America as opposed to the pragmatic, anti-philosophical approach of the United States. Section II further posits that while Latin American thinkers may be uncomfortable with explicit recognition of North American realist thought and other North American schools of jurisprudence, certain parallels are apparent and borrowings may be productive. Section III provides concluding observations

Advanced Artificial Intelligence and Contract

The aim of this article is to inquire whether contract law can operate in a state of affairs in which artificial general intelligence (AGI) exists and has the cognitive abilities to interact with humans to exchange promises or otherwise engage in the sorts of exchanges typically governed by contract law. AGI is a long way off but its emergence may be sudden and come in the lifetimes of some people alive today. How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of capacity to engage in promising and exchange, be an AGI? This is not a situation in which AI operates as an agent of a human or a firm, a frequent occurrence right now. Rather, the question is whether an AGI could constitute a principal – a contract party on its own. Contract law is a good place to start a discussion about adapting the law for an AGI future because it already incorporates a version of what is known as weak AI in its objective standard for contract formation and interpretation. Contract law in some limited sense takes on issues of relevance from philosophy of mind. AGI holds the potential to transform a solution to an epistemological problem of how to prove a contract exists into solution to an ontological problem about the capacity to contract. An objection might be that contract law presupposes the existence of a person the law recognizes as possessing the capacity to contract. Contract law itself may not be able to answer the prior question of legally recognized personhood. The answer will be to focus on how AGI cognitive architecture could be designed for compatibility for human interaction. This article focuses on that question as well

Principles of Fairness for International Economic Treaties: Constructivism and Contractualism

No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon\u27s contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating the basics of the Rawlsian and Scanlonian accounts, the paper sketches how those accounts might be used to further our understanding of the fairness of World Trade Organization policies and institutions. In particular, it uses Rawlsian and Scanlonian accounts to assess whether the TRIPS Agreement is fair in how it deals with access to affordable medicines by persons in low-income countries