Articles at ssrn

JF Colares, A Positive Theory of WTO Adjudication

Abstract:

The positive theory of litigation predicts that under certain conditions plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly 90 percent of the disputes. This disparity transcends case type, country identity, income level and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates that biased rule development explains this disparity through an examination of patterns in WTO adjudicators' notorious decisions. This article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.

Robert C. Hockett, For a Global Shareholder Society

Abstract:

With the American economy seemingly stalling, the global economy thereby imperiled, and another electoral campaign season well underway in the U.S., the "outsourcing" of jobs from the developed to the developing world is again on the public agenda. Latest figures indicate not only that layoffs and claims for joblessness benefits are up in the U.S., but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year's American political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American, and with it other developed economies', participation in the World Trade Organization and processes of global economic integration more generally appear to be up for grabs. It is not clear, on reflection, how to regard these developments from a normative point of view. On the one hand, there seems no gainsaying the claim that the gradual removal of transnational trade and investment barriers have resulted in more rapid economic growth worldwide. And that growth appears to be lifting many once desperately poor persons out of their erstwhile penury. Yet on the other hand, there also would seem no denying that global trade and investment liberalization are wreaking losses at least as conspicuous as the gains. For many if not most of the victims of globalization are those who till recently occupied positions much like those that are coming to be occupied by globalization's more sympathetic beneficiaries, and who climbed out of them via precisely such legislated standards as offshoring firms now evade. Might we pay Peter without robbing Paul?This Article proposes an ethically and intuitively attractive answer to that question rooted in financial engineering. The key is to channel a portion of the globalization-wrought gains reaped by outsourcing firms to the outsourced employees themselves. This way the latter are directly benefited by the very processes that currently harm them. The method proposed is to adapt the familiar Employee Stock Ownership Plan, or "ESOP," to spread firm-shares not simply to current labor, but to outsourced and otherwise harmed "shadow" labor as well. The Article also proposes means of diversifying the portfolio risk that will face "OutsourceSOP" participants, and maps the supporting role apt to be played by such globalization-constitutive financial institutions as the IMF and the World Bank. In the long run, the Article urges, we have here the makings of a grander ambition that all the world's inhabitants can jointly support - a "Global Shareholder Society.

Avishalom Tor, The Methodology of the Behavioral Analysis of Law

Abstract:

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that the behavioral approach is empirically driven, engaging in both the theoretical application of extant empirical findings to the law and the generation of new, legally relevant, experimental and observational evidence. As this Part shows, moreover, each of these behavioral genres possesses different methodological strengths and weaknesses, and they therefore both substitute for and complement one another, in different respects. Part IV explains that the behavioral approach encounters a series of "gaps" between the type of empirical evidence provided by behavioral decision researchers and the data required to resolve legal questions. Legal scholars should therefore be aware of these gaps, which may limit the usefulness of extant behavioral evidence for legal analysis. This Part also addresses what legal scholars may do to overcome these gaps and distinguish real gaps from imaginary ones. Part V completes the body of the Article, arguing that the behavioral analysis of law is simultaneously normatively neutral and normatively relevant. It is normatively neutral because the behavioral analysis of law is not committed to any specific legal goal or value system. This fundamental neutrality, in turn, makes the behavioral approach a versatile instrument, which can help generate important normative conclusions in the service of scholars evaluating the law based on any normative criteria - from justice to welfare and more. Part VI concludes.