A behavioral approach to human rights

Harvard International Law Journal

Volumn 51, Issue 1, 2010, Pages 51-112

  Woods, Andrew K ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 77949862111     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (371)

1. 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG, 14 NOVEMBER 1945-1 OCTOBER 1946, at 294-95 (1947) [hereinafter IMT].
2. See generally HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 131-37 (1963) (noting that killing was so woven into German bureaucracy, it had become a banal metric for job performance).
3. Universal Declaration of Human Rights, G. A. Res. 217A, art. 1, U. N. GAOR, 3d Sess., 1st plen. mtg., U. N. Doc. A/810 (Dec. 12, 1948) (emphasis added).
4. Id.
5. IMT, supra note 1.
6. Universal Declaration of Human Rights, supra note 3.
7. The behavioral notion of situationism and the research behind it is discussed in more detail in Part II. For now, both terms-behavioralism and situationism-will serve as placeholders for the many empirical insights about the power of social situations to influence individual behavior. This Article does not offer a definition of the terms for two reasons. First, the social science literature itself uses many different terms to describe the effects of our social surroundings on our behavior. More importantly, it would be unproductive to get bogged down in a definitional debate when the purpose of this Article is to show that regardless of the definitions one uses, human rights scholars and practitioners have tended to neglect behavioral insights and that these insights provide novel avenues for giving human rights norms meaning. Needless to say, the term "behavioral" is meant only to emphasize the claim that human rights law should be more concerned with behavior. The term is not meant to restrict this inquiry to " behavioral" economics at the expense of the historically richer fields of psychology or even the humanities.
8. See infra Part II.
9. There is considerable debate about which model of human action is more accurate. See generally Gregory Mitchell, Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law, 43 WM, & MARY L. REV. 1907 (2002). This Article does not enter that debate here-it is enough for present purposes to note that situations have an effect on behavior and that this effect is not currently explicitly accounted for by international legal scholars.
10. This Article uses the term "regulatory" in the broader socio-legal context of constraining action-not the narrower legal context of secondary legislation by the state.
11. See generally Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178 (Wendy Brown & Janet E. Halley eds., 2002).
12. See infra Part II. B.
13. Human Rights Watch reports are usually fact-findings, heavily researched and often drafted and/or vetted by lawyers for the legal implications of the factual findings. Press releases follow. See generally Human Rights Watch, Reports, http://www.hrw.org/en/publications/reports (last visited Nov. 5, 2009).
14. See Telephone Interview with former HRW researchers Michael Sheikh and John Sifton (Sept. 22, 2009) (on file with Harvard Law Library).
15. See infra Part I. C.
16. See Samantha M. Shapiro, Revolution, Facebook-Style, N. Y. TIMES MAG., Jan. 25, 2009, § 6 (Magazine) at 34 (noting that "for young people in Egypt, Facebook, which allows users to speak freely to one another and encourages them to form groups, is irresistible as a platform not only for social interaction but also for dissent"). @217. Alexa.com, Alexa Top 500 Global Sites, http://www.alexa.com/topsites. (last visited Nov. 11, 2009).
17. See infra Part III. A.
18. Interview with Col. James Brown, in Camp Bucca, Iraq (Jan. 9, 2008) (on file with the Harvard Law Library).
19. See also Andrew K. Woods, The Business End, FIN. TIMES MAG., June 27, 2008, at 44.
20. See CRISTINA BICCHIERI, THE GRAMMAR OF SOCIETY: THE NATURE AND DYNAMICS OF SOCIAL NORMS 3 (2005) ("The simplistic, common view that we conform to norms either because of external sanctions or because they have been internalized flies in the face of much evidence that people sometimes obey norms even in the absence of any obvious incentive structure or personal commitment to what the norm stands for." (citation omitted)).
21. See MAX HORKHEIMER & THEODOR W. ADORNO, DIALECTIC OF ENGUGHTENMENT 183-84 (1944) (reviewing the potency of Fascist propaganda and concluding that "[c]ommunication makes people conform by isolating them").
22. See Adriaan Lanni, The Future of Community Justice, 40 HARV. C. R.-C. L. L. REV. 359, 364-80 (2005) (summarizing scholarship about and developments in the community justice movement, which uses social structures and norms to regulate community behavior in place of incarceration).
23. See also Jeffrey Fagan & Tracey Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 OHIO ST. J. CRIM. I. 173, 180-85 (2008) (noting that a state's system of legal control can crowd out its ability to create informal social systems of control) ;
24. Dan Kahan & Tracey Meares, The Coming Crisis of Criminal Procedure, 86 GEO. L. J. 1153, 1167-70 (1998) (noting that anti-racism measures now limit the ability of racial minority communities to craft community policing measures).
25. In international relations, constructivists look to social situations to engender human rights treaty ratification, but they do not look to social situations to engender individual respect for human rights. Likewise, human rights scholars such as Sally Engle Merry discuss the contexts in which norm internalization takes place, but they do not treat social situations as formal units of the human rights regime.
26. See infra Part II.
27. See, e.g., Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995).
28. See also ERIC A. POSNER, LAW AND SOCIAL NORMS (2000). Describing his work applying social norms scholarship to the law, Lessig says: "My assumption is not that the tools that I describe do not exist or that they do not exist within economics. My claim is only that they need to become the ordinary tools of legal analysis."
29. Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 677 (1998). The claim of this Article is similar: it is not that these are new social phenomena, but rather that situational insights should become the ordinary tools of human rights regime design.
30. "The student of law may come to identify the normative world with the professional paraphernalia of social control. The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live." Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 4-5 (1983) (footnotes omitted).
31. See, e.g., Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935, 1938-39 (2002) (using a large-scale quantitative analysis to address the questions "Are human rights treaties complied with? Are they effective in changing states' behavior for the better?").
32. That is, social meaning to the people they are meant to protect. See infra Part I. C.
33. See Lee D. Ross, The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process, 10 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 173 (1977).
34. See also Dan T. Gilbert & Patrick S. Malone, The Correspondence Bias, 117 PSYCHOL. BULL. 21, 21-38 (1995) (giving a history of attribution errors, and noting that Ross's great insight was "that the social psychologist's tendency to underestimate the power of situations (which he called the fundamental attribution error) was shared by social psychology's subjects and that this was the key to understanding their behavior in a wide range of seemingly unrelated experiments."
35. Id. at 34).
36. See Edward E. Jones & Victor A. Harris, The Attribution of Attitudes, 3 J. EXPERIMENTAL SOC. PSYCHOL. 1, 4-14 (1967) (describing experiments in which subjects read pro-Castro statements and then rated the authors' feelings toward Castro as sympathetic, even though subjects knew the authors had been asked to write such sympathetic statements as part of a psychological experiment).
37. See also Edward E. Jones & Richard E. Nisbett, The Actor and the Observer: Divergent Perceptions of the Causes of Behavior, in ATTRIBUTION: PERCEIVING THE CAUSES OF BEHAVIOR 79 (Edward E. Jones et al. eds., 1972).
38. BICCHIERI, supra note 20, at 80.
39. See generally Jon Hanson & David Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. PA. L. REV. 129 (2003) (exploring the significant implications of social psychology, especially situationism, for law and economics and law more generally).
40. See generally HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT (Thomas Gilovich et al. eds., 2002) (collecting essays about the various judgment biases that have been well documented in social psychology including the availability heuristic, correspondence bias, anchoring, optimism, inter alia).
41. Set generally GARY S. BECKER, THE ECONOMIC APPROACH TO HUMAN BEHAVIOR (1976).
42. See generally Herbert Gintis, Experimental Economics Will Foster a Renaissance of Economic Theory, J. ECON. BEHAV. & ORG. (forthcoming), available at http://www.umass.edu/preferen/gintis/VSmithReply.pdf.
43. See DREW WESTIN, THE POLITICAL BRAIN 25-44 (2007).
44. See generally BEHAVIORAL LAW AND ECONOMICS (Cass Sunstein ed., 2000) ;
45. ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) ;
46. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471 (1998).
47. See generally WANG PING, ACHING FOR BEAUTY: FOOTBINDING IN CHINA (2000).
48. MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS 63 (1998).
49. Id.
50. See, e.g., Gerry Mackie, Ending Pootbinding and Infibulation: A Convention Account, 61 AM. SOC. REV. 999 (1996) (explaining the antifootbinding campaign's success in terms of its ability to make Chinese families aware of an alternative convention).
51. See TIMUR KURAN, PRIVATE TRUTHS, PUBLIC LIES: THE SOCIAL CONSEQUENCES OF PREFERENCE FALSIFICATION 78 (1995) (identifying "pluralistic ignorance" as the "misconceptions of preference distributions" that result when "people use mental shortcuts that violate basic statistical principles").
52. Id. at 162-67.
53. See Robert B. Cialdini et al., A Focus Theory of Normative Conduct, 24 ADVANCES EXPERIMENTAL SOC. PSYCHOL. 201 (1991).
54. See Albert Bandura et al., Vicarious Extinction of Avoidance Behavior, 5 J. PERSONALITY & SOC. PSYCHOL. 16 (1967).
55. See Albert Bandura et al., Transmission of Aggressions Through Imitation of Aggressive Models, 63 J. ABNORMAL & SOC. PSYCHOL. 575 (1961).
56. See SOLOMON E. ASCH, SOCIAL PSYCHOLOGY 451-59 (1952).
57. BICCHIERI, supra note 20, at 80
58. (citing Christina Bicchieri & Yoshitaka Fukui, The Great Illusion: Ignorance, Informational Cascades, and the Persistence of Unpopular Norms, 9 BUS. ETHICS Q. 127 (1999)).
59. See, e.g., ROBERT CIALDINI, INFLUENCE: SCIENCE AND PRACTICE 3 (1985) ("Click and the appropriate tape is activated; whirr and out rolls the standard sequence of behaviors.").
60. See also supra text accompanying note 80.
61. "Channel factors, " originally identified by Kurt Lewin, have been shown to play a significant role in determining how people behave. Small first steps-minor sunk costs, a priori commitments, etc.-can lead to significant shifts in subsequent behavior.
62. See, e.g., Marianne Bertrand et al., Behavioral Economics and Marketing in Aid of Decision Making Among the Poor, 25 J. PUB. POL'Y & MARKETING 8, 10 (2006) ("Another impressive illustration of a channel factor can be observed in Asch's (1956) conformity studies, in which participants are led to make wildly misguided judgments that conform to those expressed by a group of the experimenter's confederates. Remarkably, any dissent from unanimous opinion, even if it is in favor of a mistaken judgment, opens an appropriate channel, leading to an 80% reduction in participants' tendency to conform.").
63. See Christine M. Schroeder & Deborah A. Prentice, Exposing Pluralistic Ignorance to Reduce Alcohol Use Among College Students, 28 J. APPLIED SOC. PSYCHOL. 2150, 2174-75 (1998) (concluding that "pluralistic ignorance"-where mistaken views about the preferences of one's peers lead to the hardening of a norm-plays a strong role in legitimizing binge drinking among college students). However, such campaigns can also cause boomerang effects.
64. See, e.g., Robert Homik et al., Effects of the National Youth Anti-Drug Media Campaign on Youths, 98 AM. J. PUB. HEALTH 2229, 2235 (2008) (noting the risks of informing target actors of the behavior of their peers if those actors assume a lower baseline of behavior than the reality, in which case their behavior may "boomerang" up to meet the baseline rather than decrease).
65. See P. Wesley Schultz et al., The Constructive, Destructive, and Reconstructive Power of Social Norms, 18 PSYCHOL. SCI. 5, 429, 431 (2007).
66. Id. at 432.
67. See supra Introduction.
68. See ALISON DES FORGES, LEAVE NONE TO TELL THE STORY 258 (1999) (reporting on an early planning meeting among genocidaires, who "discussed the need for 'uniformity and harmony' of language").
69. Many radio reports used euphemisms to pass messages to civilians about the killing transpiring around the country, without flagging unwanted attention abroad.
70. See id. at 251 ("Many military officers understood that Bagosora and his supporters were saying one thing and doing another.").
71. See id. ("Disseminating the message that 'there is no place for moderates, ' RTLM heaped scorn on those who refused to participate: "The inhabitants of certain sectors don't dare search! They say that the houses are occupied and that their owners are shut up inside them; they don't dare search even in the banana groves!'").
72. Id. at 272 ("Nzabonimana also addressed a large public meeting near the church of Kivumu, where 'he asked the local population why they had not done their "work"' and suggested that the Tutsi cattle were just waiting to be eaten. ") (citations omitted).
73. See, e.g., Rwanda: How the genocide happened, BBC NEWS, Apr. 1, 2004, http://news.bbc.co.uW2/hi/africa/1288230.stm (explaining how civilians contributed to the genocide, and estimating the death toll at 800000).
74. For more on the genocide as a carefully orchestrated social program, see DES FORGES, supra note 54 at 9, 15 ("preparing for the slaughter" and "popular participation").
75. See id at 67 ("One foreign religious sister who traveled from Kibuye to Butare during the height of the genocide reported that she had seen new radios at every one of the dozens of barriers where she had been stopped en route.") (citation omitted).
76. Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgment and Sentence, ¶ 916 (Dec. 3, 2003) ("In an article entitled 'Grab Your Oars Hutu, ' signed by Kangura and published in May 1992 in Kangura No. International Version 10, the CDR was dubbed the 'mental Revolution Island' and Hutu readers were encouraged to join this revolution. ").
77. Frank Chalk, Intervening to Prevent Genocidal Violence: The Role of the Media, in THE MEDIA AND THE RWANDAN GENOCIDE 375, 376 (Allan Thompson ed., 2004)
78. (quoting Scott Straus, The Order of Genocide: Race, Power, and War in Rwanda (2004) (unpublished Ph. D. dissertation, University of California, Berkeley)).
79. See DES FORGES, supra note 54, at 369 ("The restrictions on movement and the cancelling of the Friday market meant they could not gather news from others as they usually did.").
80. See Katherine J. Strandburg et al., Law and the Science of Networks: An Overview and an Application to the "Patent Explosion" 21 BERKELEY TECH. L. J. 1293, 1300-01 (2006) (defining the goal of network science as threefold: " (1) to measure, describe, and categorize network structure and the patterns of relationships between network nodes; (2) to understand network evolution and growth and its relationship to network structure; and (3) to understand how the collective behavior of entities connected in a network depends on and derives from the network's structure.").
81. An example that occurs in nature is cricket chirping across a field, which is distributed in a network pattern similar to that of a communicable disease. See DUNCAN WATTS, SMALL WORLDS xiii (1999). The most prominent man-made network to date is, of course, the Internet.
82. See Jim Corbett, Can You Hear Me Now? Radio Calls in NFL Defenders' Helmets, USA TODAY, Aug. 27, 2008, at 1C, available at http://www.usatoday.com/ sports/football/nfl/2008-08-27-helmet-radios-N.htm.
83. See generally David A. Lake & Wendy H. Wong, The Politics of Networks: Interests, Power, and Human Rights Norms, in NETWORKED POLITICS: AGENCY, POWER, AND GOVERNANCE (Miles Kaher ed., 2009) (using network analysis to explain the growth of advocacy group Amnesty International and its ability to manipulate the size and scope of a network).
84. See DES FORGES, supra note 54, at 67 ("The radio was to become even more effective in delivering the message of hate directly and simultaneously to a wide audience. Before the war, Rwanda had only one radio station, the national Radio Rwanda, but listening to the radio was a popular distraction among ordinary people and elite alike. In 1991, some 29 percent of all households had a radio. The number of radio sets was presumably much higher by the start of the genocide. In some areas, the government distributed radios free to local authorities before the genocide and they may have done so after the killing began as well.") (citations omitted).
85. See id at 68 ("This national radio sometimes broadcast false information, particularly about the progress of the war, but most people did not have access to independent sources of information to verify its claims.").
86. See infra Part III. B.
87. See Valerie A. Curtis et al.. Masters of Marketing: Bringing Private Sector Skills to Public Health Partnerships, 97 AM. J. PUB. HEALTH 634, 634-35 (2007) ;
88. Charles Duhigg, Warning: Habits May Be Good for You, N. Y. TIMES, July 13, 2008, at BU6.
89. Curtis et al., supra note 70, at 636;
90. Duhigg, supra note 70.
91. Curtis et al., supra note 70.
92. See Curtis et al., supra note 70, at 636-37;
93. Duhigg, supra note 70.
94. Curtis et al., supra note 70, at 636;
95. Duhigg, supra note 70.
96. Duhigg, supra note 70.
97. Id.
98. Curtis et al., supra note 70, at 637.
99. See, e.g., Mahzarin R. Banaji, Implicit Attitudes Can Be Measured, in THE NATURE OF REMEMBERING: ESSAYS IN HONOR OF ROBERT G. CROWDER 117, 118 (H. L. Roediger, III et al. eds., 2001) (noting that psychologists have recently discovered and begun to measure "new, previously undetected forms of attitudes, " specifically those that are implicit and unconscious).
100. See Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEO. L. J. 1, 89 (2004) (discussing experiments that show that judgments about other sexes and races are unconscious).
101. Id.
102. See also Jason Mitchell, Brian Nosek & Mahzarin Banaji, Category Salience Determines Implicit Attitudes Toward Black Female and White Male Targets (Paper presented at the First Annual Meeting of the Society for Personality and Social Psychology, Nashville, Tenn., 2000), available at http://projectimplicit. net/nosek/talk/SPSP.mitchell.handouc.2000.doc.
103. See CIALDINI, supra note 48.
104. Hanson & Yosifon, supra note 78.
105. The "True Love Waits" program alone claims over two million pledgers. See True Love Waits Launches Community-Wide Initiative, BAPTIST PRESS, Feb. 14, 2005, http://www.bpnews.net/bpnews.asp? ID=20143.
106. See Hannah Brückner & Peter Bearman, After the Promise: The STD Consequences of Adolescent Virginity Pledges, 36 J. ADOLESCENT HEALTH 271 (2005) (noting that while sexual encounters and therefore risk factors were reduced among pledgers, sexual transmission rates were as high as those among non-pledgers, potentially indicating a lower use of condoms among pledgers at their sexual debut).
107. Janet Rosenbaum, Reborn a Virgin: Adolescents' Retracting of Virginity Pledges and Sexual Histories, 96 AM. J. PUB. HEALTH 1098, 1101 (2006) (noting that in some cases "self-identified virginity pledgers chose to have sexual intercourse despite their pledge and may later have 'overlooked' the pledge as a result of cognitive dissonance between their virginity pledge and their history of sexual intercourse.").
108. See id.
109. See generally ERVING GOFFMANN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1956).
110. See CIALDINI, supra note 48, at 92-103 (showing that people who are low-balled into saving home energy through a promise to run their names in a newspaper congratulating them if they conform will continue with their commitment even after the reward is removed. The commitments "grow their own legs"-that is, if they initially reduced energy use for status or to conform with social norms, the modified behavior remains because the subjects' self conception has changed.
111. (citing Michael Pallak et al., Commitment and Energy Conservation, in APPLIED SOC. PSYCHOL. ANN. (L. Bickman ed., 1980))).
112. See CIALDINI, supra note 48, at 75-81 (describing the effects of written commitments).
113. See CIALDINI, supra note 48, at 57.
114. See Edgar H. Schein, Some Observations on Chinese Methods of Handling Prisoners of War, 20 PUB. OPINION Q. 321 (1956).
115. There is, however, a question about the lasting effect of these statements. Many of the soldiers returned to their previous views after leaving the confines of the camp.
116. See id. at 326.
117. See Richard Katzev & Theodore Wang, Can Commitment Change Behavior? A Case Study of Environmental Actions, 9 J. SOC. BEHAV. & PERSONALITY 13, 22 (1994).
118. See also Theodore H. Wang & Richard D. Katzev, Group Commitment and Resource Conservation: Two Field Experiments on Promoting Recycling, 20 J. APPLIED SOC. PSYCHOL. 265 (2006) (finding that group commitments can be lasting, but only with monitoring, while individual commitments lasted beyond the trial period).
119. See CIALDINI, supra note 48, at 94.
120. See BICCHIERI, supra note 20, at 94 (noting that "[s]ocial norms are embedded into scripts.").
121. See id. at 146-47
122. (citing Dawes et al., Not Me or Three But We: The Importance of Group Identity in Eliciting Cooperation in Dilemma Situations, 68 ACTA PSYCHOLOGICA 83, 83-97) (noting that Dawes et al. "reasoned that if individuals incorporate groups into their self-concept, a motivational shift would occur and group welfare would matter more than individual welfare").
123. Id. at 147.
124. See id at 158 (noting that "[i]t is the realization that there can be psychological group membership without interdependence, need satisfaction, personal attraction, social structure, or common norms and values that led Tajfel, and later Turner and Brewer, to design experiments in the context of the minimal group paradigm").
125. Hanson & Yosifon, supra note 78, at 100 (citations omitted).
126. See Ronald Chen & Jon Hanson, Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory, 77 S. CAL. L. REV. 1103, 1184-85 (2004)
127. (citing John Duckitt, Psychology and Prejudice: A Historical Analysis and Integrative Framework, 47 AM. PSYCHOLOGIST 1182, 1188-89 (1992)
128. and Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup Behavior, in THE PSYCHOLOGY OF INTERGROUP RELATIONS 7, 11 (Stephan Worchel & William G. Austin eds., 2d ed. 1986)).
129. See also Steven Fein & Steven J. Spencer, Prejudice as Self-image Maintenance: Affirming the Self Through Derogating Others, 73 J. PERSONALITY & SOC. PSYCHOL. 31, 31 (1997).
130. Hanson & Yosifon, supra note 78, at 55.
131. MUZAFER SHERIF ET AL., INTERGROUP CONFLICT AND COOPERATION: THE ROBBERS CAVE EXPERIMENT 27-68 (1961).
132. See Hanson & Yosifon, supra note 78, at 54-58.
133. SHERIF ET AL., supra note 101, at 171-78.
134. See Henri Tajfel, Experiments in Intergroup Discrimination, 223 SCI. AM., 96-102 (1970) (finding that after playing a simple computer game that resulted in a numerical score, boys favored those who had received a similar score and discriminated against those with different scores).
135. See Dan M. Kahan et al., Modeling Facts, Culture, and Cognition in the Gun Debate, 18 SOC. JUST. RES. 283, 286 (2005).
136. Id. at 285.
137. See id at 292-97 (designing and simulating what happens when two competing modeb for information processing exist simultaneously, what the authors call the "truth vs. culture" model).
138. See John Gastil et al., The "Wildavsky Heuristic": The Cultural Orientation of Mass Political Opinion (Yale Law Sch., Pub. L. Working Paper No. 107, 2005), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=834264.
139. Id. at 2.
140. Id at 31.
141. The gut feeling of liking, or affect, one has at the time of a decision can dominate and override so-called rational decisionmaking processes. This was demonstrated in a series of experiments in which subjects were shown often nonsensical objects or words and asked to say which things they liked more than others, or which seemed more familiar, or both.
142. See R. B. Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 AM. PSYCHOLOGIST 151 (1980).
143. See Kahan et al., supra note 105, at 292 ("Unlike rational Bayesian information-processors, individuals don't update their prior beliefs based on new evidence; instead they evaluate new evidence based on its conformity to their priors, dismissing as unpersuasive evidence that contradicts their existing beliefs.").
144. See generally Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207, 211-12 (1973) (asking people to estimate the percentage of words that begin with "R" or "K" as opposed to words having those letters in the third position, and finding that presumably because the subjects could easily recall examples in which words began with those letters, but did not have available in their minds examples of words with those letters in the third position, subjects overestimated the proportion of words beginning with the letters "R" or "K").
145. See Richard Thaler, Toward a Positive Theory of Consumer Choice, 1 J. ECON. BEHAV. & ORG. 39, 43-47 (1980) (noting the fact that people tend to demand much more to give up an object than they would pay to obtain it). This has particular significance for battles over scarce resources.
146. See, e.g., Ziv Caromon & Dan Ariely, Focusing on the Forgone: How Value Can Appear So Different to Buyers and Sellers, 27 J. CONSUMER RES. 360, 362 (2000) (finding holders of scarce basketball tickets will sell for an average price of $2411 whereas buyers will pay an average of $166).
147. See Samuel M. McClure et al., Separate Neural Systems Value Immediate and Delayed Monetary Rewards, 306 SCI. 503 (2004)
148. cited in JON ELSTER, EXPLAINING SOCIAL BEHAVIOR 118, 123 (2007) (noting that humans tend to value welfare and benefits in the present more than in the future).
149. Also known as the status quo bias, system justification is the tendency to try to see the status quo as fair, legitimate, and good. This phenomenon would be expected in dominant groups, but has been observed even in people and groups in a non-dominant or minority position. See John T. Jost et al., A Decade of System Justification Theory: Accumulated Evidence of Conscious and Unconscious Bolstering of the Status Quo, 25 POL. PSYCHOL. 881 (2004) (synthesizing many previous experiments and hypotheses about system justification, with special focus on "implicit outgroup favoritism among members of disadvantaged groups"). This is especially true of people in positions of uncertainty, transition, or danger: "[p]eople who possess heightened needs to manage uncertainty and threat are especially likely to embrace conservative, system-justifying ideologies...."
150. John T. Jost & Orsolya Hunyady, Antecedents and Consequences of System-Justifying Ideologies, 14 CURRENT DIRECTIONS IN PSYCHOL. SCI. 260, 261 (2005).
151. Framing effects-that is, drawing different conclusions about data based on how they are presented-have been well documented in psychology and social movement literatures. See Amos Tver-sky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCI. 453 (1981) (noting that decisions were made differently depending on the way the decision was framed).
152. See also Marshall Ganz, The Power of Story in Social Movements (Aug. 2001) (unpublished manuscript, on file with Harvard University) (recounting Cesar Chavez's narrative vision for the United Farm Workers social movement-linking narrative production to identity through leadership). This has even been shown in fMRI brain scans.
153. See Benedetto De Martino et al., Frames, Biases, and Rational Decision-Making in the Human Brain, 313 SCI. 84 (2006) (showing fMRI scans of amygdala and orbital and media prefrontal cortex regions of the brain as subjects make financial decisions that are framed in the same way as the 1981 Tversky and Kahnemann study).
154. See JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 108 (2005) (arguing that "modern multilateral human rights treaties have little exogenous influence on state behavior").
155. See id at 120 ("Nor do the modern human rights treaties have an effective or reliable coercive enforcement mechanism.").
156. See, e.g., Desmond Tutu & Mary Robinson, Rights Demand Strong Institutions: Sixty Years After the Universal Declaration of Human Rights, We Need Legislative Muscle to Back Up Our Ideals, THE GUARDIAN (London), Dec. 7, 2008, http://www.guardian. co.uk/commentisfree/2008/dec/07/unitednations-human rights ("[B]illions of people are today unable to access or protect their legal rights because judicial and law enforcement systems are impoverished or lack integrity. Changing this will require massive investment in courts, judicial officials, police, prison systems, social ministries, and parliaments.").
157. See Kahan & Meares, supra note 22.
158. See also Lanni, supra note 22.
159. These community justice models are not entirely proven as policing techniques. But without entering a debate about their efficacy-or the inefficacy of earlier approaches-it is enough for present purposes to note that they offer the prospect of viewing an old problem in a new light.
160. See Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L. J. 2599 (1997).
161. One exception is the scholarship on conformity in mass atrocity. See, e.g., MARK A. DRUMBL, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW 29-35 (2007) (discussing empirical evidence from social psychology that seeks to explain how individuals conform with the group to commit atrocities). But the author's search of Westlaw database "Journals and Law Reviews" with the following query produced zero relevant results: ("fundamental attribution error"/p "human rights"). Similar searches were equally unfruitful. Searching for ("fundamental attribution error" & "international law") in the same database produced only 25 articles, none of which provided an in-depth analysis of the relationship between the two terms. These searches were last done October 29, 2009.
162. See GOLDSMITH & POSNER, supra note 118, at 134. The book sparked a debate in the international legal community that has been covered well elsewhere, so we will not revisit it here other than to note the narrow scope of the debate over the reach of international human rights law.
163. See Oona A. Hathaway & Ariel N. Lavinbuk, Rationalism and Revisionism in International Law, 119 HARV. L. REV. 1404 (2006) (critically reviewing THE LIMITS OF INTERNATIONAL LAW).
164. See Gerard Ruggie, What Makes the World Hang Together? Neo-Utilitarianism and the Social Con-structivist Challenge, 52 INT'L ORG. 855 (1998) (explaining the roots and development of constructivism and making the distinction between three forms of constructivism: neo-classical constructivism, postmodern constructivism, and naturalistic constructivism). Ruggie notes that "[t]he first instinct of the willing constructivist is to incorporate norms, identities, and meaning into the study of international relations with minimum disruption to the field's prevailing epistemological stance, on which hopes for analytical rigor and cumulative knowledge are believed to rest."
165. Id. at 884.
166. ALASTAIR IAIN JOHNSTON, SOCIAL STATES: CHINA IN INTERNATIONAL INSTITUTIONS, 1980-2000, at xiv (2007).
167. See, e.g., THE POWER OF HUMAN RIGHTS (Thomas Risse, Stephen C. Ropp & Kathryn Sikkink, eds., 1999).
168. See Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE LJ. 621, 626 (2004).
169. Id. at 638.
170. Id. at 641.
171. See José Alvarez, Do Statu Socialize?, 54 DUKE L. J. 961, 969 (2005) (responding to Goodman and Jinks by characterizing their anthropomorphic account of state behavior as "pop psychology without people").
172. See Alex Geisinger & Michael Ashley Stein, A Theory of Expressive International Law, 60 VAND. L. REV. 77 (2007) (developing an expressive theory under which states are motivated to develop their norms and to ratify and comply with international law by their "desire for esteem from the global community").
173. Harold Hongju Koh, Internalization Through Socialization, 54 DUKE L. J. 975, 981-82 (2005) (citations omitted).
174. See generally Paul Schiff Berman, From International Law to Law and Globalization, 43 COLUM. J. TRANSNAT'L L. 485 (2005) (calling for a new field-"law and globalization"-which has its theoretical grounding much more in jus gentium than the jus inter gentes that grounds current statist approaches to international law).
175. See, e.g., POSNER, supra note 24, at 11-35.
176. See Kahan and Meares, supra note 22.
177. See ELLICKSON, supra note 36.
178. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 93-94 (1999).
179. See Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996).
180. This literature is vast. See generally CULTURAL ANALYSIS, CULTURAL STUDIES, AND THE LAW (Austin Sarat & Jonathan Simon eds., 2003) (noting that in several legal subfields, "culture" has replaced "social, " "public opinion, " and even "law").
181. Human rights norms have, by design, an intuitive appeal. See LYNN HUNT, INVENTING HUMAN RIGHTS (2007) (tracing a brief history of the idea of universal human rights and noting that in order to succeed the concept needed to be natural).
182. For example, Sally Engle Merry has done important anthropological work on how global human rights norms become translated into local values in the context of violence against women. See SALLY ENGLE MERRY, HUMAN RIGHTS & GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE (2006).
183. Harold Hongju Koh, The 1997 Frankel Lecture: Bringing International Law Home, 35 HOUS. L. REV. 623, 626 (1998).
184. Id. at 628-29 (1998).
185. Id.
186. For an example of how this literature can be usefully applied in legal scholarship, see Lessig, The Regulation of Social Meaning, supra note 24, at 1028
187. (citing Robert A. Kagan & Jerome H. Skolnick, Banning Smoking: Compliance Without Enforcement, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 69, 82 (Robert L. Rabin & Stephen D. Sugarman eds., 1993)).
188. Koh, supra note 144, at 647 (calling transnational norm entrepreneurs "individuals who, in Ethan Nadelmann's words, (1) 'mobilize popular opinion and political support both within their host country and abroad'; (2) 'stimulate and assist in the creation of like-minded organizations in other countries'; (3) 'play a significant role in elevating their objective beyond its identification with the national interests of their government'; and (4) often direct their efforts 'toward persuading foreign audiences, especially foreign elites, that a particular [normative] regime reflects a widely shared or even universal moral sense, rather than the particular moral code of one society'")
189. (citing Ethan A. Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society, 44 INT'L ORG. 479, 482 (1990)).
190. For support that behavior can align with a set of norms without any norm internalization, see BICCHIERI, supra note 20, at 3.
191. See Koh, supra note 144.
192. Rosa Brooks, The New Imperialism: Violence, Norms, and the "Rule of Law, " 101 MICH. L. REV. 2275, 2325 (2003).
193. See BICCHIERI, supra note 20, at 7 ("The idea that social norms may be cued, and hence manipulated, is attractive. It suggests that we may be able to induce pro-social behavior and maintain social order at low cost. Norms differ in different cultures, and what cues a Westerner into cooperation will probably differ from what cues a Mapuche Indian. In both cases, however, it may be possible to structure the environment in a way that produces desirable behavior.") (citation omitted).
194. See Lessig, The New Chicago School, supra note 24, at 662 ("Norms constrain an individual's behavior, but not through the centralized enforcement of the state. If they constrain, they constrain because of the enforcement of a community. Through this community, they regulate.").
195. See BICCHIERI, supra note 20.
196. An international movement designed to "end impunity" has led to the creation of international criminal tribunals to punish bad actors who commit grave human rights abuses. For an account of one international criminal tribunal, see Craig Timberg, Sierra Leone Special Court's Narrow Focus: Well-Funded but Selective War Crimes Probe Draws Resentment of Impoverished Victims, WASH. POST, Mar. 26, 2008, at A11.
197. See Emilie M. Hafner-Burton, Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem, 62 INT'L ORG. 689, 689-90 (2008) (noting that the tactic of naming and shaming is "commonplace"). Of course this is not the only model for advocacy-advocates are creative and have designed many mechanisms for achieving their political goals. Nor is this model offered as a straw-man. This model of advocacy is a dominant one. It is still taught at law schools across the West and is practiced by the biggest and most powerful human rights organizations.
198. See generally Hafner-Burton, supra note 154 (noting the success human rights advocates have had in changing the language of international relations, but also noting the failure of that change to relate to a significant shift in state policies).
199. See, e.g., KERRY KENNEDY CUOMO, SPEAK TRUTH TO POWER (2000) (profiling advocates who exposed human rights violations).
200. See HANS THOOLEN & BERTH VERSTAPPEN, HUMAN RIGHTS MISSIONS: A STUDY OF THE FACTFINDING PRACTICE OF NON-GOVERNMENTAL ORGANIZATIONS (1986).
201. Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HUM. RTS. Q. 63, 67 (2004).
202. See Roth, supra note 158.
203. For a discussion of the reaction to the abuse allegations, see Sewell Chan & Thomas E. Ricks, Iraq Prison Supervisors Face Army Reprimand; Probe of Interrogations May Bring More Changes, WASH. POST, May 4, 2004, at A1.
204. See supra Introduction.
205. See Negar Azimi, Prisoners of Sex, N. Y. TIMES, Dec. 3, 2006, sect; 6 (Magazine), at 63 (noting the strategy of Human Rights Watch to couch homosexual abuse in the language of torture rather than sexual equality).
206. See Roth, supra note 158, at 68 (noting that Human Rights Watch's methodology relies on identifying a clear rights violation and a remedy, and that "[t]hese answers flow much less directly from the mere documentation of an ESC rights violation than they do in the civil and political rights realm").
207. A related and significant limitation of this model-and this is not to deny its potency up until now-is its preoccupation with shaming violators, who are taken to be unitary actors, rather than social situations of rights violations. Such a focus necessarily limits the scope of action that human rights advocates can address.
208. See infra Part III. A.
209. See infra Part II. C
210. See GOLDSMITH & POSNER, supra note 118.
211. See Goodman & Jinks, supra note 129, at 646-56.
212. See Koh, Internalization Through Socialization, supra note 134, at 981.
213. See Roth, supra note 158.
214. See infra Part III. C.2.
215. See JAMES M. MAYO, THE AMERICAN GROCERY STORE: THE BUSINESS EVOLUTION OF AN ARCHITECTURAL SPACE 242 (1993).
216. See also Roger March & Arch G. Woodside, Advancing Theory on Consumer Plans, Actions, and How Marketing Information Affects Both, in APPLYING SOCIAL COGNITION TO CONSUMER-FOCUSED STRATEGY 155, 156 (Frank R. Kardes et al. eds., 2005).
217. See Sharon E. Beatty & M. Elizabeth Ferrell, Impulse Buying: Modeling its Precursors, 74 J. RETAILING 169, 184-85 (1998).
218. See Baba Shiv & Alexander Fedorikhin, Heart and Mind in Conflict: The Interplay of Affect and Cognition in Consumer Decision Making, 26 J. CONSUMER RES. 278, 289 (1999) (noting that impulse buying will go up in environments where deliberative cognition is limited).
219. See Aner Sela et al., Variety, Vice, and Virtue: How Assortment Size Influences Option Choice, 35 J. CONSUMER RES. 941, 942 (2009).
220. See supra Part II. A.
221. Jacob E. Gersen & Eric A. Posner, Soft Law. Lessons from Congressional Practice, 61 STAN. L. REV. 573, 592 (2008).
222. BICCHIERI, supra note 20, at 175.
223. See Ryan Goodman and Derek Jinks, Incomplete Internalization and Compliance with Human Rights Law, 19 EUR. J. INT'L. L. 725, 739 (using the Helsinki Accords as an example of how political leaders are affected by their public commitments).
224. See GOLDSMITH & POSNER, supra note 118, at 175-79 (describing how much of international legal rhetoric is "cheap talk").
225. See Robert A. Prentice, Law & Gratuitous Promises, 2007 U. ILL. L. REV. 881, 881 (2007) ("Behavioral law and economics tends to show that the same limits on rational human decision making that apply to gratuitous promises also apply to bargained-for commercial exchanges.").
226. See Charles D. Weisselberg, Mourning Miranda, 96 CAL. L. REV. 1519, 1527-28 (2008).
227. See Alexandra Zavis, The Conflict in Iraq: A Different Approach, L. A. TIMES, NOV. 16, 2007, at A12..
228. See JACK GOLDSMITH, THE TERROR PRESIDENCY 28 (2007) ("The oath of office and a powerful professional concern to 'do the right thing' help OLC lawyers to resist pressures for certain outcomes when they believe the law requires otherwise.").
229. See The Secretary-General, Report of the World Conference on Human Rights: Report of the Secretary General, U. N. Dcoc. A/CONF.157/24 (Oct. 13, 1993).
230. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, ¶ 71, U. N. Doc. A/CONF.157/23 (July 12, 1993).
231. See supra text accompanying note 49.
232. Marianne Bertrand et al., supra note 49, at 6.
233. See Lee D. Ross, supra note 28.
234. See ABRAM CHAYES & ANTONIA CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 10 (1993) (suggesting that some of the most significant limitations on state compliance with international law are "limitations on the capacity of parties to carry out their undertakings").
235. For a helpful discussion of this debate in the context of international criminal law, see Luc Côté, Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law, 3 J. INT'L CRIM. JUST. 162, 169 (describing the level of prosecutorial discretion in international criminal law with regard to indictments in terms of both numbers and rank of the indicted, and noting the criticism which "was directed at the Prosecutor for the indicting lower perpetrators, considered 'small fries, ' particularly in the first cases of Tadić the ICTY and Akayesu at the ICTR.").
236. See Craig Haney et al., Interpersonal Dynamics in a Simulated Prison, 1 INT'L J. CRIMINOLOGY & PENOLOGY 69, 88 (1973).
237. Philip G. Zimbardo, Power Turns Good Soldiers Into 'Bad Apples', BOSTON GLOBE, May 9, 2004, available at http://www.boston.com/news/globe/ editoriaLopinion/oped/articles/2004/05/09/power-turns-good-soldiers-into-bad- apples/.
238. KWAME ANTHONY APPIAM, EXPERIMENTS IN ETHICS 71 (2008).
239. John Schwartz, Simulated Prison in 71 Showed a Fine Line Between 'Normal' and 'Monster', N. Y. TIMES, May 6, 2004, at A20.
240. Interview with Douglas Stone, Major General, United States Marine Forces Reserve, in Camp Bucca, Iraq (Jan. 8, 2008) (on file with the Harvard Law Library).
241. Id.
242. Id.
243. Daniel Muñoz-Rojas & Jean-Jacques Frésard, The Roots of Behaviour in War: Understanding and Preventing IHL Violations, 86 INT'L REV. RED CROSS 189 (2004).
244. Id. at 193-94.
245. Id. at 194.
246. See id at 204.
247. Any failure to obey an order must be sanctioned. Sanctions, which are central to determining a combatant's behaviour, can take different forms (e.g. disciplinary, penal or social). Disciplinary or penal sanctions should be promoted both for the purpose of setting an example and for prevention. It is essential that the authorities should take action, even for offences which are less serious than a war crime, so as to ensure the discipline of their troops and avoid entering a spiral of violence in which violations may become not only more and more serious but also more and more acceptable in the eyes of those who commit them.
248. Id.
249. See Muñoz-Rojas & Frésard, supra note 199, at 195.
250. See IMT, supra note 1.
251. See INTERNATIONAL HUMAN RIGHTS IN CONTEXT 263 (Philip Alston et al. eds., 3d ed. 2007).
252. Roth, supra note 158, at 68.
253. See, e.g., Hiawatha Bray, Beating Censorship on the Internet, BOSTON GLOBE, Feb. 20, 2006, at A10. (describing the TOR service that masks a computer's identity online).
254. But see JACK L. GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET ILLUSIONS OF A BORDERLESS WORLD (2006) (debunking utopian visions of an unfettered, borderless internet).
255. See generally PRISCILLA B. HAYNER, UNSPEAKABLE TRUTHS: CONFRONTING STATE TERROR AND ATROCITY 10-23 (2001) (describing the differences between a truth commission and a criminal tribunal).
256. Timberg, supra note 153.
257. The court was also designed as an outreach and training mechanism, but it has been disappointing in that capacity. See id.
258. See Sahr Kpundeh, Corruption and Political Insurgency in Sierra Leone, in BETWEEN DEMOCRACY AND TERROR: THE SIERRA LEONE CIVIL WAR 90, 91 (Ibrahim Abdullah ed., 2004) (describing the country's colonial past and describing poverty and corruption as the "proximate causes" of the rebel war).
259. See id.
260. Claire Moore Dickerson, Corporations as Cities: Targeting the Nodes in Overlapping Networks, 29 J. CORP. L. 533, 535 (2004).
261. See, e.g., Joshua Greene and Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 PHIL. TRANS.: BIOLOGICAL SCI. 1775 (2004) (arguing that advances in neuroscience will change understandings of free will and causation such that retributive forms of justice will seem arbitrary).
262. See DRUMBL, supra note 124, at 29-30 (discussing the work of legal scholars Laurel Fletcher and Harvey Weinstein, as well as psychologists Gustav Le Bon and Sigmund Freud).
263. HUMAN RIGHTS WATCH, COURTING HISTORY (2008), available at http://www.hrw.org/en/reports/2008/07/10/courting-history?print.
264. Id. at 68.
265. Id. at 64.
266. Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgment and Sentence (Dec. 3, 2003).
267. See supra Part I. B.
268. See Nahimana, Case No. ICTR-99-52-T.
269. Nahimana, Case No. ICTR-99-52-T, at ¶ 953.
270. Two of the three men were originally sentenced to life in prison, see Nahimana, Case No. ICTR-99-52-T, at ¶¶ 1105-08
271. but on appeal all three sentences were reduced to between 30 and 35 years imprisonment, see Nahimana v. Prosecutor, Case No. 1CTR 99-52-A, Judgment, ¶ 744 (Nov. 28, 2007).
272. See Joshua Wallenstein, Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for Incitement to Genocide, 54 STAN. L. REV. 351 (2001).
273. Prosecutor v. Nahimana, Case No. 1CTR-99-52-T, Judgment and Sentence ¶ 242 (Dec. 3, 2003).
274. Id.
275. See id. ¶ 981.
276. Id. ¶ 1073.
277. See supra Part I. B.
278. Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgment and Sentence ¶ 953 (Dec. 3, 2003).
279. Convention on the Prevention and Punishment of the Crime of Genocide art. III (c), Dec. 9, 1948, 102 Stat. 3045, 78 U. N. T. S. 277.
280. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶ 559 (Sept. 2, 1998).
281. Nahimana v. Prosecutor, Case No. ICTR 99-52-A, Judgment, ¶ 744 (Nov. 28, 2007).
282. This is not offered here as a perfectly defensible rule of law, but rather an example of a rule of law that is more specific than the one used in the court case thanks to its use of social science insights about situationism.
283. See Wallenstein, supra note 223.
284. See Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75 (2005).
285. Id. at 79.
286. There are many other applications beyond criminal group behavior. Determining the limits of civil liability for international human rights abuses, for example, is another potential area for situational enrichment. In Alien Tort Statute litigation, courts have recently struggled to define the limits of aiding and abetting liability.
287. See, e.g., In re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S. D. N. Y. 2004).
288. For example, the Indian Supreme Court recently held that cinema halls and video parlors have a duty, through licensing, to exhibit free of cost at least two messages on the environment in each show. See M. C. Mehta v. Union of India & Others (1992) 1 S. C. C. 358.
289. See SKYE BENDER-DEMOLL, POTENTIAL HUMAN RIGHTS USES OF NETWORK ANALYSIS AND MAPPING: A REPORT TO THE SCIENCE AND HUMAN RIGHTS PROGRAM OF THE AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE (2008).
290. See Joshua Green, The Amazing Money Machine, ATLANTIC, June 2008, at 60 ("Almost overnight, a whole new network, which would yield its own spin-offs, had come into being and gone to work for the candidate.").
291. See generally GUIDO CALDARELLI, SCALE FREE NETWORKS (2007).
292. See Strandburg et al., supra note 63, at 1304 ("Any predictions of how fast the virus will spread based on the average number of sexual partners will be completely wrong. Moreover, a program of random condom distribution or HIV testing may be much less effective than anticipated if it happens to miss the few most highly active individuals.").
293. See Lake & Wong, supra note 66, at 127-28.
294. But the idea that key influences should be targeted for information campaigns is hotly debated by network scientists at the moment. See Clive Thompson, Is the Tipping Point Toast?, FAST COMPANY, Feb. 2008, at 74 (noting that Duncan Watts' work on scale-free networks has put into doubt the claim that key nodes in a network can be identified ex ante and used for marketing purposes).
295. See, e.g., DAVID GREWAL, NETWORK POWER (2008) (decrying the lack of political theory addressing networks).
296. See Lake & Wong, supra note 66, at 128.
297. See Emilie M. Hafner-Burton & Alexander H. Montgomery, Power Positions: International Organizations, Social Networks, and Conflict, 50 J. CONFLICT RES. 3, 11 & n. 9 (2005) (noting their reliance on "the idea that structural holes are sources of capital and the idea that centrality is a source of capital. We take the latter definition as our basis for measuring social power.") (citations omitted).
298. See Strandburg et al., supra note 63, at 1313-14 ("Social network studies demonstrate that access to information depends on one's position in the network. An individual's susceptibility to legal and social sanctions for socially undesirable behavior will be similarly dependent on his or her local social network.").
299. There are a few academics who have attempted to square human rights norms with aspects of religion. See, e.g., Abdullahi A. An-Na'im, Islamic Foundations of Religious Human Rights, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 337 (John Witte, Jr. & Johan D. van der Vyver eds., 1996).
300. See also Barbara Ann Rieffer, Religion, Politics and Human Rights: Understanding the Role of Christianity in the Promotion of Human Rights, 6 HUM. RTS. & HUM. WELFARE 31 (2006), available at www.du.edu/korbel/hrhw/volumes/ 2006/rieffer-2006.pdf. Still, these attempts to reconcile religion with human rights principles remain a tiny percentage of the scholarship.
301. See Lance Compa & Tashia Hinchliffe-Darricarrère, Enforcing International Labor Rights Through Corporate Codes of Conduct, 33 COLUM. J. TRANSNAT'L L. 663 (1995).
302. See, e.g., Amnesty International, What is Human Rights Education?, http://amnestynepal.org/content/hre.php. (last visited Oct. 31, 2009).
303. As of the writing, over 100 states have a national human rights institution. See The National Human Rights Institution Forum, available at http://www.nhri.net/nationaldatalist.asp. (last visited Oct. 30, 2009).
304. G. A. Res. 48/127, ¶ 5, U. N. Doc. A/RES/48/127 (Dec. 20, 1993).
305. See Dickerson, supra note 212, at 567 ("[A] targeted focus on a network's richest nodes can be the cheapest way to destroy-or influence-the institution, and thus to guide the organization's actions.").
306. See J. Christopher Cohrs et al., Determinants of Human Rights Attitudes and Behavior: A Comparison and Integration of Psychological Perspectives, 28 POL. PSYCHOL. 441 (2007) (using a time-lagged internet survey (N=479) to analyze individual orientations to human rights, and finding that political ideology as well as human rights knowledge predicted human rights behavior).
307. See, e.g., United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Preamble, Sept. 3, 1981, 1249 U. N. T. S. 13 ("Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women. ").
308. See Stephanie Hanes, Backstory: Congolese Radio Show Gives War Victims a Voice, THE CHRISTIAN SCI. MONITOR, Mar. 22, 2007, at 20.
309. See CLAY SHIRKY, HERE COMES EVERYBODY 87 (2008).
310. This Article is not sanguine about the use of technology to challenge state powers. See, e.g., GOLDSMITH & WU, supra note 207. As the Chinese government's internet censorship efforts have shown, certain internet messages and pages can be effectively censored by a state. But as the Egyptian example shows, even states that heavily censor their print and broadcast media may not currently have the resources or knowhow to censor online material. Likewise, we might imagine that some states will choose to allow certain limited expansions of individual freedom, such as the ability to assemble on Facebook.com, in order to reap financial or other gains as long as the state sees the gains as greater than the costs.
311. See BICCHIERI, supra note 20, at 167-70 (noting that perceived consensus increases after discussion-and that this was even true when subjects were discussing with inanimate computers).
312. But see CASS SUNSTEIN, GOING TO EXTREMES: HOW LIKE MINDS UNITE AND DIVIDE 1-5 (2009) (noting that evidence suggests that groups of like-minded people can radicalize rather than moderate one another's views).
313. Interview with Joe Green, Founder, Facebook Causes (Dec. 2, 2008) (on file with the Harvard Law Library).
314. See Green, supra note 240, at 60.
315. See Prosecutor v. Bikindi, Case No. ICTR 01-72-T, Judgment (Dec. 2, 2008).
316. See RON EYERMAN & ANDREW JAMISON, MUSIC AND SOCIAL MOVEMENTS: MOBILIZING TRADITIONS IN THE TWENTIETH CENTURY (1998).
317. See Andrew J. Cappel, Bringing Cultural Practice into the Law: Ritual and Social Norms Jurisprudence, 43 SANTA CLARA L. REV. 389, 485 (2003).
318. Likewise, attempts to shape behavior can be undermined if they do not take account of potentially counter-productive customs. In many refugee settlements, for example, customary forms of dispute settlement must be merged with U. N.-sanctioned legal dispute resolution mechanisms-for when they are ignored, they operate as a secondary system undermining the official, U. N.-sanctioned one. See U. N. High Comm'r for Refugees, The Administration of Justice in Refugee Camps: A Study of Practice, U. N. Doc. PPLA/2006/01 (Mar. 2006) (prepared by Rosa da Costa), available at http://www.unhcr.org/refworld/ docid/44l7f9a24.html (examining refugee dispute settlement mechanisms through surveys and site visits to 52 camps in 13 countries with a total of nearly a million refugees).
319. See CHIP HEATH & DAN HEATH, MADE TO STICK (2007).
320. This Article does not address the foundational challenges to human rights, which are beyond the scope of its inquiry. To some, the behavioral approach cannot be squared with rights-talk. This Article agrees with Richard Rorty when he says that "[t]he best, and probably the only, argument for putting [human rights] foundationalism behind us is the one I have already suggested: It would be more efficient to do so, because it would let us concentrate our energies on manipulating sentiments, on sentimental education. " Richard Rorty, Human Rights, Rationality and Sentimentality, in ON HUMAN RIGHTS: THE 1993 OXFORD AMNESTY LECTURES 112, 122 (Susan Hurley & Stephen Shute eds., 1993).
321. Political scientists Margaret Keck and Kathryn Sikkink offer convincing and detailed explanations for how nonstate actors wield power internationally. But their work has not been updated with empirical research about the micro-processes of influence. Where they describe the persuasive value of issue framing, for example, they say little to nothing about how nonstate actors design or interact with social situations to enact change.
322. See KECK & SIKKINK, supra note 38. Similarly, Anne Marie Slaughter's work made the notion of governance networks salient, but her work drew little from network science, and was limited to networks of government officials, limiting the explanatory action of her model to formal regulators. As a consequence, she focuses on persuasion, ignoring other potentially more important forms of influence such as network position and/or acculturation.
323. See ANNE MARIE SLAUGHTER, A NEW WORLD ORDER (2004).
324. See, e.g., Koh, supra note 140, at 207. His account includes nonstate actors as bodies who transmit global norms to local communities, but their own regulatory systems are under-explained, as is their ability to form horizontal global regulatory regimes without state involvement.
325. See, e.g., Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L. J. 949, 956 (2003).
326. APPIAH, supra note 194, at 72.
327. Madhavi Sunder, Piercing the Veil, 112 YALE L. J. 1399, 1403 (2003).
328. Of course, behaviors are associated with values-and the behavioral approach will not resolve cultural relativist charges. But as a tactical matter, it may be more productive for human rights practitioners and scholars to focus on-and speak in terms of-behaviors rather than norms or cultural values.
329. See CHAYES & CHAYES, supra note 190, at 10.
330. See supra Part III. A.
331. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 964-65 (1996).
332. Id. at 907.
333. See Cover, supra note 25, at 7.
334. Id. at 15.
335. See LESSIG, supra note 139, at 5-6.
336. See ELLICKSON, supra note 36.
337. See Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39 CONN. L. REV. 1739 (2007).
338. Christian Joerges, Transnational Governance and its Legitimacy Problematics: The Examples of Standardization and Food Safety, 7 (Feb. 2, 2004) (unpublished paper)
339. (citing Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543 (2000)).
340. See Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, LAW & CONTEMP. PROBS., Summer/Autumn 2005, at 15, 46.
341. See Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 3 (Christian Joerges et al. eds., 2004).
342. There is a movement some have labeled the New New Haven School, a riff on the eponymous international relations school of thought.
343. See, e.g., Janet Koven Levit, A Bottom-Up Approach to International Lawmaking; The Tale of Three Trade Finance Instruments, 30 YALE J. INT'L L. 125 (2005).
344. See also Melissa A. Waters, Normativity in the "New" Schools: Assessing the Legitimacy of International Legal Norms Created by Domestic Courts, 32 YALE J. INT'L L. 455 (2007).
345. Joerges, supra note 283.
346. David Kennedy, The Mystery of Global Governance, 34 OHIO N. U. L. REV. 827 (2008).
347. Id. at 851.
348. Id. at 849.
349. See Kingsbury et al., supra note 284, at 28.
350. Id at 29.
351. TEUBNER, supra note 285, at 16 (citation omitted).
352. Id at 4.
353. See, e.g., ANTHONY KING, THE BRITISH CONSTITUTION (2007) (arguing that the famed social fabric constitution has actually been transcribed in the form of thousands of pages of laws and regulations that govern daily life in Britain).
354. See Lessig, The New Chicago School, supra note 24, at 691.
355. See CASS SUNSTEIN & RICHARD THALER, NUDGE 4-6 (2008).
356. See CHARLES FRIED, MODERN LIBERTY 100 (2006) (finding liberty at odds with the idea of choice as a social construction: "If we do not take responsibility for our own judgments, we might as well give up on thought and argument....").
357. See JONATHAN BARON, THINKING AND DECIDING 504-05 (3d ed. 2000) ("The 'omission bias' is the bias that favors harms of omission over equivalent harms from action. ")
358. SUNSTEIN & THALER, supra note 297, at 10.
359. THE POLITICS OF PUBLIC BEHAVIOR 37 (Duncan O'Leary ed., 2008), available at http://www.demos.co.uk/files/Politics-of-Public-Behaviour-web.pdf.
360. PAUL SKIDMORE & KIRSTEN BOUND, THE EVERYDAY DEMOCRACY INDEX 72-73 (2008), available at http://www.demos.co.uk/files/EDI-all%20chapters.pdf.
361. BICCHIERI, supra note 20, at 46.
362. SUNSTEIN & THALER, supra note 297.
363. See Joseph E. Grandpre et al., Adolescent Reactance and Anti-Smoking Campaigns: A Theoretical Approach, 15 HEALTH COMM. 349 (2003).
364. See RICHARD GILLESPIE, MANUFACTURING KNOWLEDGE: A HISTORY OF THE HAWTHORNE EXPERIMENTS 2 (1991)
365. (quoting F. J. ROETHLISBERGER, MANAGEMENT AND MORALE 15 (1941)).
366. See, e.g., Stanely Milgram, Behavioral Study of Obedience, J. ABNORMAL &. SOC. PSYCHOL. 67, 371-78 (1963) (demonstrating a subject's willingness to obey experimenter's requests, even when those requests caused harm to others) ;
367. Stanley Milgram, OBEDIENCE TO AUTHORITY: AN EXPERIMENTAL VIEW (1974) (expanding on the original study).
368. See MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT 565 (1989).
369. See MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY (2003).
370. International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946
371. reprinted in 41 AM. J. INT'L L. 172, 221 (1947).