Copyright (c) 2009 All rights reserved. http://works.bepress.com/alex_geisinger Recent documents in Alex Geisinger en-us Tue, 06 Oct 2009 17:56:24 PDT 3600 http://works.bepress.com/alex_geisinger/9 http://works.bepress.com/alex_geisinger/9 Mon, 05 Oct 2009 11:54:08 PDT Ever since Grotius first suggested that desire for esteem from the broader global community motivates States to comply with international law, identifying just how this desire effects compliance has proven illusive. The ability to harness the pull of international society is important to virtually all treaty formation and compliance. It is especially important in the area of human rights regimes where other compliance forces such as coercion, are rarely, if ever, used. Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed, in many situations this evidence suggests that the human rights practices of States that ratify such treaties may actually worsen after ratification. The need to understand how, or whether, the pull of international society influences state behavior, thus, has never been greater. This Article provides an initial detailed model of the forces motivating human rights treaty creation and compliance by drawing on evolving expressive law literature. It begins by setting forth a need-reinforcement model that explains how normative pressure influences rational actors to alter their behavior and beliefs while seeking regard from other group members. Next, the Article applies this model to State treaty ratification and compliance, and describes how treaties exert expressive effects that lead rational States to change their behavior because of their desire to be part of and esteemed by the global community. The Article then demonstrates how an expressive theory harmonizes the contributions of divergent international law scholars into a more complete theory of why States enter into and obey international law. In doing so, it provides a framework from which regime design implications can be drawn. Alex Geisinger http://works.bepress.com/alex_geisinger/8 http://works.bepress.com/alex_geisinger/8 Mon, 05 Oct 2009 11:47:17 PDT The Article argues that profiling is not the result of conscious and rational action. Rather, profiling is an implicit process that results from the cognitive process of categorization. The process of categorization helps individuals cope with the variety of stimuli that surround them on a day-to-day basis. Without the ability to group stimuli into categories, individuals would be overwhelmed in their efforts to process information and function in the world. Alex Geisinger http://works.bepress.com/alex_geisinger/7 http://works.bepress.com/alex_geisinger/7 Mon, 05 Oct 2009 11:43:55 PDT Scholars recognize that government acts are expressive; that is, they affect the social meaning of behavior. Nowhere are the expressive effects of government acts more significant than when they affect an individual's understanding of her ability to practice her religion. When government allows a creche to be placed on public property or provides educational vouchers that are used primarily at religious schools, its acts send signals to the population about what the community and the government prefer. As Justice O'Connor has observed, a religious symbol displayed on government property carries a message that affects one's understanding of him or herself as an insider or outsider, favored or disfavored by the political community.Yet while scholars have recognized that Establishment Clause cases are best understood as analyzing government's expressive acts, they have yet to develop a comprehensive theory of just how government acts actually express particular meanings. Without such a theory, efforts to develop a meaningful Establishment Clause jurisprudence remain unsuccessful. The purpose of this article is to provide such an expressive theory. The article turns to both social and cognitive psychology to develop a model of expressive effects based on the way in which government acts affect beliefs about one's relationship to community or government. This belief-change theory suggests that the primary means by which government acts can affect belief is through the process of inference. When the government places a creche on public property, for example, such an act can lead to reasonable inferences about the religious preferences of both government and the community. Such changes in belief can, in turn, affect the utility of acting in accordance with religious beliefs not preferred by the government or community. By understanding the way in which inference works - in particular the effects of pre-existing beliefs and logical consistency on one's inferential processes - a full expressive theory will be developed.Once the theory is developed, the article applies it to a number of Establishment Clause cases and ultimately, discusses the theory's implications for Establishment Clause jurisprudence. The article will proceed as follows: Section Two will provide a short introduction to existing Establishment Clause jurisprudence to highlight some of the difficulties and shortfalls of the way in which such cases are currently handled. Section Three will provide a detailed model of the expressive theory while Section Four will apply the theory to a number of Establishment Clause cases. Finally, we will discuss the implications of the expressive theory for Establishment Clause jurisprudence in Section Five. It is our hope by the end of the article to have established a different, more comprehensive and intuitively satisfying test of Establishment Clause violations. We hope also to shed some significant light on current problems in existing Establishment Clause jurisprudence along the way. Alex C. Geisinger http://works.bepress.com/alex_geisinger/6 http://works.bepress.com/alex_geisinger/6 Mon, 05 Oct 2009 11:40:27 PDT Scholars have long considered the linked questions of whether and why states obey international law. Contemporary contributions to this inquiry include schools of thought that aver the bearing of transnational legal process on state socialization, the impact of acculturation on state behavior, the sway of a state's desire to be held in esteem by other international actors, and the influence of a given state's belief in the rule of law. Common to each of these approaches is the notion that external norms have some effect on state action.A second group of scholars takes an atomistic, instrumentalist approach. Skeptical of normative pressure, they envision states as rational actors seeking to maximize stable and preexisting preferences. The most recent contribution to this approach is How International Law Works: A Rational Choice Theory by Andrew T. Guzman. The book is an ambitious attempt to generate "a comprehensive and coherent theory" - based on the assumption that states are rational, self-interested actors - that can explain how international law "works across its full spectrum" (pp. 8-9).By endeavoring to comprehensively explain international law within a rational choice framework, Rational Choice makes a valuable contribution to the developing body of international law scholarship. Guzman's efforts to more fully describe the reputational aspects of international law within a rational choice framework are especially significant. It is relatively easy to understand how direct economic or material benefits (or detriments) can motivate states to enter into or comply with international agreements. However, the influence of more indistinct reputational forces on the behavior of states has been a fertile source of contention between various schools of thought in this field.Guzman does an admirable job describing the nexus between a state's rational self-interest and concern over its reputation among other states. It is, however, the limited role played by reputation in the theory as a whole that raises serious concerns regarding the book's claim to comprehensiveness. The book's focus on cooperation and coordination as the exclusive bases for treaty formation relegates reputational forces to playing a role only in treaty compliance, not treaty formation. Yet the formation of a considerable component of international law comprised by human rights treaties cannot be explained solely through the game-theoretic lens of cooperation and coordination. Because cooperation and coordination games cannot account for the formation of human rights treaties - leaving us instead to consider the reputational force behind treaty creation - we are required to reconsider Rational Choice's claim that it is a comprehensive theory applicable "to all international agreements" (p. 121). If, as we suggest, reputation plays a role in treaty formation, a more robust theory of reputation is necessary for any rational-choice-based explanation of international law to succeed. We can project that some of the strengths and weaknesses revealed by our examination of human rights treaty formation and compliance carry over into other parts of Guzman's theory.Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows. Alex Geisinger http://works.bepress.com/alex_geisinger/5 http://works.bepress.com/alex_geisinger/5 Wed, 19 Sep 2007 15:57:56 PDT Alex Geisinger http://works.bepress.com/alex_geisinger/4 http://works.bepress.com/alex_geisinger/4 Wed, 19 Sep 2007 15:55:07 PDT Alex Geisinger http://works.bepress.com/alex_geisinger/3 http://works.bepress.com/alex_geisinger/3 Wed, 19 Sep 2007 15:52:03 PDT Alex Geisinger http://works.bepress.com/alex_geisinger/2 http://works.bepress.com/alex_geisinger/2 Wed, 19 Sep 2007 15:48:59 PDT Alex Geisinger http://works.bepress.com/alex_geisinger/1 http://works.bepress.com/alex_geisinger/1 Wed, 19 Sep 2007 15:46:12 PDT Alex Geisinger