June 2014 Vol. 112 No. 8 THE REVIEW
ARTICLES

War Is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective

Eyal Benvenisti & Amichai Cohen

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other's capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side's answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal-agent model of domestic governance. We pry open the black box of "the state" and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intrastate conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nation's interests are likely to prefer that international norms regulate warfare. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and it outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that as a practical matter, international law enhances the ability of states to amass huge armies because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run states with massive armies are its greatest beneficiaries.    

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Personalizing Default Rules and Disclosure with Big Data

Ariel Porat & Lior Jacob Strahilevitz
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NOTES

Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education

Joshua Arocho

The United States has exhibited a strong commitment to public education throughout its history. The local control of education long associated with the United States' federal system, however, has led to extreme inequalities in education finance within states. This reality, held constitutionally permissible by the Supreme Court in San Antonio Independent School District v. Rodriguez, is a product of heavy reliance on local property taxation as a means to fund schools. Although levying property taxes is a permissible state action to promote local control of education, its unaltered use is archaic and ultimately detrimental due to the United States' growing income gap and corresponding wealth segregation in the housing markets. Because federal and state court litigation has produced an intractable and inequitable split in education policy that remains unsolved by current federal- and state-led initiatives, this Note argues that a conditional congressional grant of funds would serve as a new, more politically feasible solution to this problem. By making federal funding under the next reauthorization of the No Child Left Behind Act contingent on states' adoption of new school finance systems, particularly the Guaranteed Tax Base, Congress can encourage states to give all communities an equal opportunity to finance a high-quality education for their students, regardless of the value of their taxable property.    

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Tariffication of the Coastwise Trade Laws

Keith E. Diggs
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Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression

Thomas E. Kadri
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