The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.

Commentary on Copinger's Law of Copyright (1870)

A landmark treatise on the law of copyright, establishing a body of work that still has great relevance for professionals and academics today.
The commentary situates the publication of the treatise in the context of the emerging trends in legal publishing in the mid- to late nineteenth century. It considers Copinger's theoretical approach to the subject of copyright, and explores the significance of the writings and work of two American jurists George Ticknor Curtis and Justice Joseph Story in shaping Copinger's attitude and approach to the copyright regime.

Sports coaching and the law of negligence: implications for coaching practice

The ordinary principles of the law of negligence are applicable in the context of sport, including claims brought against volunteer and professional coaches. Adopting the perspective of the coach, this article intends to raise awareness of the emerging intersection between the law of negligence and sports coaching, by utilising an interdisciplinary analysis designed to better safeguard and reassure coaches mindful of legal liability. Detailed scrutiny of two cases concerning alleged negligent coaching, with complementary discussion of some of the ethical dilemmas facing modern coaches, reinforces the legal duty and obligation of all coaches to adopt objectively reasonable and justifiable coaching practices when interacting with athletes. Problematically, since research suggests that some coaching practice may be underpinned by “entrenched legitimacy” and “uncritical inertia”, it is argued that coach education and training should place a greater emphasis on developing a coach’s awareness and understanding of the evolving legal context in which they discharge the duty of care incumbent upon them.

‘Article 16’ Provision, Commentary on the Law of the International Criminal Court

The Commentary on the Law of the International Criminal Court provides an online provision-by-provision analysis of the Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court.

Germany v Italy:The Triumph of Sovereign Immunity over Human Rights Law

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

Random Regret Minimization: Exploration of a New Choice Model for Environmental and Resource Economics

This paper introduces the discrete choice model-paradigm of Random Regret Minimization (RRM) to the field of environmental and resource economics. The RRM-approach has been very recently developed in the context of travel demand modelling and presents a tractable, regret-based alternative to the dominant choice-modelling paradigm based on Random Utility Maximization-theory (RUM-theory). We highlight how RRM-based models provide closed form, logit-type formulations for choice probabilities that allow for capturing semi-compensatory behaviour and choice set-composition effects while being equally parsimonious as their utilitarian counterparts. Using data from a Stated Choice-experiment aimed at identifying valuations of characteristics of nature parks, we compare RRM-based models and RUM-based models in terms of parameter estimates, goodness of fit, elasticities and consequential policy implications.

Low pressure carbon dioxide solubility in lithium-ion batteries based electrolytes as a function of temperature. Measurement and prediction

We present in this study the effect of nature and concentration of lithium salt, such as the lithium hexafluorophosphate, LiPF6; lithium tris(pentafluoroethane)-trifluorurophosphate LiFAP; lithium bis(trifluoromethylsulfonyl)imide, LiTFSI, on the CO2 solubility in four electrolytes for lithium ion batteries based on pure solvent that include ethylene carbonate (EC), dimethyl carbonate (DMC), ethyl methyl carbonate (EMC), diethyl carbonate (DEC), as well as, in the EC:DMC, EC:EMC and EC:DEC (50:50) wt.% binary mixtures as a function of temperature from (283 to 353) K and atmospheric pressure. Based on experimental solubility values, the Henry’s law constant of the carbon dioxide in these solutions with the presence or absence of lithium salt was then deduced and compared with reported values from the literature, as well as with those predicted by using COSMO-RS methodology within COSMOThermX software. From this study, it appears that the addition of 1 mol · dm-3 LiPF6 salt in alkylcarbonate solvents decreases their CO2 capture capacity. By using the same experimental conditions, an opposite CO2 solubility trend was generally observed in the case of the addition of LiFAP or LiTFSI salts in these solutions. Additionally, in all solutions investigated during this work, the CO2 solubility is greater in electrolytes containing the LiFAP salt, followed by those based on the LiTFSI case. The precision and accuracy of the experimental data reported therein, which are close to (1 and 15)%, respectively. From the variation of the Henry’s law constant with temperature, the partial molar thermodynamic functions of dissolution such as the standard Gibbs energy, the enthalpy, and the entropy, as well as the mixing enthalpy of the solvent with CO2 in its hypothetical liquid state were calculated. Finally, a quantitative analysis of the CO2 solubility evolution was carried out in the EC:DMC (50:50) wt.% binary mixture as the function of the LiPF6 or LiTFSI concentration in solution to elucidate how ionic species modify the CO2 solubility in alkylcarbonates-based Li-ion electrolytes by investigating the salting effects at T = 298.15 K and atmospheric pressure.

Clarifying the acquis humanitaire: a transnational legal perspective on the internalization of humanitarian norms

Although the international obligations and institutional frameworks for disaster response are not yet settled, as evidenced by the International Law Commission’s work on the protection of persons in the event of disasters and the on-going promotion of disaster laws by the Red Cross Movement; the diverse source and nature of such initiatives suggests that the international community is engaged in a process of norm creation, elaboration and interpretation reflecting a desire for legal clarity in humanitarian operations. Situated within the framework of transnational law, this paper argues that an acquis humanitaire, based on the principle of humanity, encapsulates the evolving body of law and practice specifically relating to the protection of persons in times of humanitarian crisis in both armed conflicts and natural or human-made disasters. Reflecting the non-traditional, non-statist, dynamic and normative basis of transnational legal process, as elaborated by Harold Koh, the constant flow of ideas and principles between the national, regional and international spheres provides an analytical framework for the on-going transnational dialogues on the social, political and legal internalization of humanitarian norms. Drawing on the internalization of humanitarian norms within the United Kingdom, this paper concludes that as the international community examines the codification of a universal legal framework for the protection of persons in the event of disasters it is necessary to understand the transnational process of interpretation and internalization of humanitarian norms, and how this may vary across different regions and countries.

Thermal transport in out-of-equilibrium quantum harmonic chains

We address the problem of heat transport in a chain of coupled quantum harmonic oscillators, exposed to the influences of local environments of various nature, stressing the effects that the specific nature of the environment has on the phenomenology of the transport process. We study in detail the behavior of thermodynamically relevant quantities such as heat currents and mean energies of the oscillators, establishing rigorous analytical conditions for the existence of a steady state, whose features we analyze carefully. In particular, we assess the conditions that should be faced to recover trends reminiscent of the classical Fourier law of heat conduction and highlight how such a possibility depends on the environment linked to our system.

Mining Money: the generative capacities of scientific and legal knowledge practices in the making of resource economies

In 1997 a scandal associated with Bre-X, a junior mining firm, and its prospecting activities in Indonesia, exposed to public scrutiny the ways in which mineral exploration firms acquire, assess and report on scientific claims about the natural environment. At stake here was not just how investors understood the provisional nature of scientific knowledge, but also evidence of fraud. Contemporaneous mining scandals not only included the salting of cores, but also unreliable proprietary sample preparation and assay methods, mis-representations of visual field estimates as drilling results and ‘overly optimistic’ geological reports. This paper reports on initiatives taken in the wake of these scandals and prompted by the Mining Standards Task Force (TSE/OSC 1999). For regulators, mandated to increase investor confidence in Canada’s leading role within the global mining industry, efforts focused first and foremost upon identifying and removing sources of error and wilfulness within the production and circulation of scientific knowledge claims. A common goal cross-cutting these initiatives was ‘a faithful representation of nature’ (Daston and Galison 2010), however, as the paper argues, this was manifest in an assemblage of practices governed by distinct and rival regulative visions of science and the making of markets in claims about ‘nature’. These ‘practices of fidelity’, it is argued, can be consequential in shaping the spatial and temporal dynamics of the marketization of nature.