Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Basketball in the Key of Law: The Significance of Disputing in Pick‐Up Basketball

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman's Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in informal “pick‐up” games transform the meaning of their activity through disputing. By playing in a legalistic way, players constitute the game as “real” and “serious” rather than “mere play.” The analysis tracks basketball players in the heat of action as they perceive the game, call rule violations, contest those violations, and ultimately give up. Players organize each phase of the dispute's natural history in the “key of law” by constructing and comparing cases, invoking and interpreting rules, setting precedent, arguing over procedure, and proposing solutions. Through these practices, players infuse the game with rich meaning and generate the motivational context demanding that the game be treated as significant. This analysis contributes to an understanding of legal ontology that envisions law's essence as potentiating rather than repairing normative social life.     

Fair use of works of art in children's games

The aim of this article is to examine the legal possibilities available to creators of children's games, enhancing art education. It focuses on the type of games that enrich the learning experience by means of works of visual, verbal or musical art. I do not deal with the technology of the digital age, but examine the educational art game as a ‘derived game’, containing the original work of art (as a component of the game), and discuss in depth the issue of the use of works of art, integrated in children's games. The situation in this sphere is murky. In the toy shops there are no games providing enrichment in the understanding of art, and shops in art galleries have only a few games with reproductions of pictures in those galleries. The subject is particularly important in view of the fact that children are not exposed to works of art contributing to their cognitive development and critical perspective, and when they do see works of art, they are usually behind some barrier and not easily accessible. The complex situation created by strict copyright laws deters the planners and producers of games and makes such games expensive. As a result, we as a society, fail to exploit a powerful experiential means to enrich the cultural world of the younger generation. This article examines the possibilities of establishing a right of fair use of reproductions of works of art in children's games.     

There are nothing but hard cases

Conclusion I have tried to suggest that two types of hard cases can be distinguished: real hard cases which appear when the game of justice is played and a situation appears which the play does not recognize, and false hard cases which are a part of an argument for a certain paradigm (often in key-concept reasoning). To recognize the latter kind of hard cases, one has to know the rules for the paradigm in which such hard cases function as examples.The solution of real hard cases can only be found through a study of how the game of justice is played. And to do this, it is also necessary to recognize the false problems which are caused by mixing in arguments from other language games. The investigation of hard cases must concentrate on what is most familiar to the players and try to separate the grammar of the game of justice from the experience that one can get from playing the game itself.     

“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valori-zation with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenome'non as a whole also carries implications for EU civil society and for notions of legal equality among persons.     

“It's Just Black,White, or Hispanic”: An Observational Study of Racializing Moves in California's Segregated Prison Reception Centers

This article takes as its launching point a 2005 U. S. Supreme Court case, Johnson v. California (543 U.S. 499), which ruled that the California Department of Corrections' unwritten practice of racially segregating inmates in prison reception centers is to be reviewed under the highest level of constitutional review, strict scrutiny. Relying on observational data from two California prison reception centers, this research is grounded in an interactionist perspective and influenced by Smith's work on “institutional ethnography.” I examine how racialization occurs in carceral settings, arguing that officers and inmates collaborate to arrive at a “negotiated settlement” regarding housing decisions. They do so working together (but not always in agreement) to shape how an inmate is categorized in terms of ‘race’/ethnicity and gang/group affiliation, within a framework established by official Department of Corrections and Rehabilitation paperwork and related institutional understandings of housing needs. The findings demonstrate that administrators, officers, and inmates alike have influence over the process by which people are categorized and ‘race’ is produced, even as they derive their power from different sources and are both enabled and constrained by the relationship between them. I conclude that California prisons are, as Wacquant has put it, “the main machine for ‘race making’” (2005:128), and that the fuel for that machine—a series of patterned, negotiated settlements—happens in real time, “on the ground,” and with important consequences for inmates, officers, and administrators.     

One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Much controversy has emerged on the demarcation between legal positivism and non‐legal positivism with some authors calling for a ban on the ‐as they see it‐ nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001 , 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.     

Up and down the Zoning Scale

Zoning in this country has traditionally been a waiting game with the development proceess. Not knowing what specific property will be used for and not controlling the ball game suficiently to say what will be the use, land has been zoned in a “wait and see” classification. Some land has been overzoned for certain uses; other land has been left fairly open as to its potential use. Thus the system itself necessitates constant change in a property's classification as circumstances change. Many of these changes are made to accommodate a specific development proposal, so they are to the landowner's benefit. However, other rezonings result in a reduction in the landowner's potential for profit. It is this type of change—downzoning—that is the subject of this discussion.     

The Mechanisms behind Litigation's “Radiating Effects”: Historical Grievances against Japan

Scholars argue that litigation can have positive and negative “radiating” or indirect effects for social movements, irrespective of formal judicial decisions. They see litigation as a dynamic process with distinctive features yet nonetheless intertwined with advocacy in other forums. Litigation can indirectly shape collective identities, reframe debates, or provide political leverage. However, the mechanisms behind these radiating effects are poorly understood. Through an analysis of lawsuits and related activism by Korean survivors of Japanese actions in the first half of the twentieth century, this article disaggregates the mechanisms behind litigation's productive indirect effects. It theorizes and illustrates mechanisms such as attribution of similarity, brokerage, issue dramatization, political cover, and intergroup discussions. These mechanisms help us understand how litigants obtain litigation's indirect effects and thus also the broader impact of postwar compensation lawsuits in East Asia, despite few judicial victories. The article contributes non‐Western and transnational cases to scholarship on litigation's indirect effects.     

The View from the Hill: Legislative Perceptions Of the District

This article addresses legislative perceptions of constituents' interests and develops a theory of perception that highlights the role of information accessibility in the formation of legislative offices' views of their districts. I used original data regarding health policy in the U.S. House to analyze perceptions of constituents' interests. I found that legislators do not see all constituents in their district, nor do they see the largest constituencies. Rather, legislators are more likely to see active and resource‐rich constituents. These findings provide unique evidence of the influence of money in Congress and suggest that legislative misperception is both common and systematically biased.     

彝族民间司法官“德古”刍议

在西南少数民族彝族聚居区,活跃着一群很特殊的人——“德古”。他们是彝族习惯法的熟知者,同时也是彝族社会的民间司法官。在从古至今的彝族乡土社会生活中,“德古”都起着十分重要的作用。     

“Deliberative Disagreement” in U.S. Health Policy Committee Hearings

The exchange of rationales among debate participants is necessary for legitimacy in a deliberative democracy. I show that witnesses in congressional committee hearings tend to use falsifiable rationales when they encounter moderate levels of disagreement and shift to nonfalsifiable rationales when they encounter extreme disagreement. I use data from a coding of hearings testimony on the Medicare program, held between 1990 and 2003, as well as from a survey of participating witnesses measuring their perceptions of disagreement at the hearing. The results identify conditions that enhance falsifiable discourse and help to establish the empirical grounding deliberative democratic theory.     

“Native Courts” and the Limits of the Law in Colonial Sudan: Ambiguity as Strategy

This article offers a way of thinking about colonial‐era legal reform that departs from traditional narratives by highlighting the importance of legal ambiguity in state building projects. Following the establishment of “Native Administration” in the Sudan in the early 1920s, the British colonial government conferred expansive judicial and administrative powers on tribal sheikhs and nazirs (chiefs), while at the same time discouraging many attempts to formalize or standardize those powers, preferring instead that they remain informal and undefined. This policy, which I term “strategic ambiguity,” emerged out of a belief that tribal leaders would be more effective if they possessed maximum discretion and judicial flexibility, even though the result was a colonial government woefully ill‐informed about much of its own judicial system. These findings point to a way of thinking about colonial‐era legal reform in which governmental ignorance was actually productive of sovereignty, and not an obstacle to it.     

“SEEING” MINORITIES AND PERCEPTIONS OF DISORDER: EXPLICATING THE MEDIATING AND MODERATING MECHANISMS OF SOCIAL COHESION

Research shows that residents report high levels of disorder in places with greater concentrations of minorities even after controlling for objective indicators of crime or disorder. Less understood, however, are the mechanisms that explain this relationship. Drawing on a survey of nearly 10,000 residents nested within 297 neighborhoods across two cities, we use a multiple indicators–multiple causes model to examine the cues that lead individuals to distort the presence of minorities in neighborhoods. We then employ multilevel models to test whether these distortions influence perceptions of disorder. Furthermore, we assess whether living in a socially cohesive neighborhood mediates and/or moderates the relationship between “seeing” minorities and perceiving disorder. We find that when residents overestimate the proportion of minorities living in their neighborhood, perceptions of disorder are heightened. Yet social cohesion moderates and partially mediates this relationship: Residents living in socially cohesive neighborhoods not only report less disorder than those living in less cohesive communities, but also they “see” fewer minorities when compared with residents living in less socially cohesive neighborhoods. These results suggest that social cohesion is an important mechanism for explaining how residents internalize the presence of minorities in their neighborhoods and how this then leads to perceived neighborhood disorder.     

Is it really just a game? Copyright and online role-playing games

Legal context. Massively multiplayer online role-playing games(MMORPGs) are a craze that has swept the globe. Online gamershave been reported to spend 22 hours per week online playingtheir favourite games while there have been reports of playersspending up to 55 hours at a time playing. Not all gamers arehobby gamers, nor are they just teenagers having fun. A markethas grown around MMORPGs and a lucrative online market has emergedoutside the games for the sale of game characters and items.The value of this market has been estimated at US$880 million.At the heart of disputes concerning the sale of game charactersand items is the question of copyright ownership. Game providersclaim that the End User Licence Agreements (EULAs) give themintellectual property ownership and rights over any dealingswith the game characters and items. Many gamers on the otherhand are abhorrent at the assertion that they have no claimto characters and items that they have spent many hours developing. Key points. The first issue that needs to be considered is whethercopyright subsists at all in the game characters and items.The next question to be considered is who owns the copyrightin in-game characters and items. To answer the question, onemust look to the EULAs, but the EULAs do not provide all theanswers because issues such as moral rights cannot be governedby EULAs. Further, the practice of farming by companies runningdigital sweatshops complicates the relationship between gamersand game providers. Practical significance. There have been numerous disputes concerningthe game characters and items between game developers, gamers,and farming companies. This article examines the key copyrightissues at stake.     

多次博弈背景下的中国特色刑事诉审关系-基于制度经济学的考察

我国刑事诉讼中，诉审双方通过多次反复的博弈，达成了现存的注重配合的非正式制度，而这种制度的稳定，依赖于双方建立在拥有博弈惩罚权基础上的相互实施。本文在剖析司法实践中诉审双方博弈惩罚权相互实施的基础上，分析了该制度实施中可能存在的例外情况及原因，并进一步阐述了非正式制度带来的强化诉讼线性结构、限制正式制度实施空间等后果。     

The Idea of “Free Public Reason”

Abstract. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so-called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability.     

“The Tree Is the Enemy Soldier”: A Sociolegal Making of War Landscapes in the Occupied West Bank

War landscapes have a particular sociology; they are also formed through distinct legal technologies. By examining the genealogy of trees as totemic displacements in the occupied West Bank I demonstrate how the Israeli/Palestinian war is deflected onto the landscape and how this deflection erodes the boundary between law and war. Dealing with issues of colonization, nationalization, and the way that these implicate landscape as a “natural alibi,” the article examines the intricate making of politics into nature. Further, it explores the ironic nesting of colonial processes from Ottoman, to British, to Zionist, and finally to the new Jewish settler society that seeks to unsettle the old colonial landscapes of this place. Utilizing a detailed interpretation of a range of interviews and participatory observations, the article unpacks the mutually constitutive relationship between law, technologies of seeing, and landscape, illustrating how this relationship is played out by various actors in the occupied West Bank.     

性别排挤与平等追求的博奕——以女性劳动权益保障与男性家庭责任意识为视角

无论在公共领域,还是在私人领域,均存在着性别排挤与平等追求的博奕。人类社会进入后工业文明之后,这种博奕集中表现为女性劳动权益保障和男性家庭责任承担的博奕。女性劳动权益保障在公共领域直接表现为企业社会责任的承担,在私人领域则直接表现为男性家庭责任的承担。企业社会责任的承担在于女性劳动权益的救济——强化男女平等精神,强化内部管理机制、强化劳动保障意识、强化社会监管体系。男性家庭责任的承担在于女性家庭权益的救济——强化社会性别意识、强化性别平等观念、强化发展资源共享。当女性劳动权益保障与男性家庭责任承担紧密共融、相互促进之时,就是男女两性的实质平等和男女两性的充分解放之时。