MIXED STAKES CONFLICTS IN INTERNATIONAL AND CONSTITUTIONAL LAW.

• Author: Nzelibe, Jide

1. THE ARGUMENT AND ILLUSTRATIVE SUPPORT FOR ITS PLAUSIBILITY 58 A. Why Mixed Stakes Cases Arc Particularly Troublesome 59 B. Why High Stakes Conflicts over Identity Need Not Be 63 Threatening C. Illustrations 67 1. The Hazards of Mixed Stakes Conflicts: United States 68 Sectionalism and British Free Trade 2. The Improbable Benefits of High Stakes Conflicts: 72 Federalism and Civil Rights D. Objections to Adopting a High Stakes Strategy 78 II. MIXED STAKES CONFLICTS ARE MORE SUSCEPTIBLE TO MANIPULATION 80 A. An Illustration of Manipulation: The Use of National 80 Rivalry to Sell Free Trade 1. Plausible Social Benefits of Invoking National Rivalry 81 2. Political Limitations of Invoking National Rivalry 83 B. Consequences of National Rivalry for Adjudication 84 III. MIXED STAKES CONFLICTS MAY UNDERMINE TRADE ADJUSTMENT 90 ASSISTANCE A. Identity Politics Fuels the Wrong Kind of Solidarity 91 B. Why Identity Politics May Cause Transition Adjustment 96 Assistance to Exacerbate Social Conflict C. Evaluating Proposals to Overcome Obstacles to Trade 100 Adjustment Assistance IV. CONCLUSION 104 INTRODUCTION

   In constitutional and international law, we may often take it for granted that we can discern the intensity of a conflict from the economic and social identity issues at stake. Suppose that the axis of legal dispute could be arrayed along a spectrum, according to the level of polarization. At one extreme, we might expect to see the kinds of conflicts that wc usually associate with threats to a group's fundamental values, identity, or social status. In the United States, for instance, these would include legal conflicts over hot button issues such as abortion, race, sectionalism, gun rights, religion, and national honor. At the other end of the spectrum, we would expect conflicts over technical and material issues, such as disagreements over the rules of origin in international trade, calculation of anti-dumping margins, and the like, which implicate more mundane bread and butter concerns. All else equal, we might expect that high stakes conflicts in the former category to be the most intense and destabilizing areas in constitutional and international law. (1)

   This Article stakes out a contrary view: it is often those legal conflicts that involve a mixture of both social identity and more mundane material stakes that are likely going to be the most pernicious and difficult to manage. Paradoxically, these mixed stakes conflicts are likely to be more unforgiving and destabilizing not because they are too polarizing, but often because they are not polarizing enough. The reasons are twofold. First, it is in these kinds of conflicts that the protagonists are more likely to have inconsistent beliefs about what it is at stake, and therefore not know whether to sidestep the issues, accommodate each other, or engage in a zero-sum political battle. Second, when you have mixed stakes conflicts, there will be more leeway for political actors to manipulate the opaqueness of legal boundaries for political and economic gain.

   Simply put, the pathological features of mixed stakes conflicts are often characterized by their degree of impure polarization. On the one hand, since such legal disputes appear to be insufficiently high stakes, or do not otherwise implicate fundamental issues of principle, the protagonists might not be motivated to make the necessary sacrifices to sidestep these divisions or otherwise adopt a strategy of mutual tolerance. On the other hand, since they appear to be insufficiently small stakes and divisible, the protagonists might not be encouraged to find compromise solutions where each side gains a partial victory with enough spoils to go all around.

   Instead, this intermediate category of conflict occupies an unstable and fragile middle ground, where it is neither truly just about social identity nor economic resources but rather a combination of both. Such conflicts have elements of divisible claims about resources interspersed with zero-sum claims about social and moral identity, which is a toxic brew that can easily have a corrosive influence on legal stability. By contrast, the more intensely pure and polarizing divisions, be they over only social identity or moral ideals, may have built into them certain self-correcting tendencies. In other words, given the apparent risks that such divisions are likely to pose to the global or domestic legal order, political actors across the spectrum are expected to anticipate such conflicts before they intensify or boil over and seek out opportunities to defuse them. Alternatively, both sides may decide to fight until one side wins decisively, and can then successfully impose its preferences.

   This rest of this Article proceeds as follows. Part I spells out the source of the inconsistent beliefs in mixed stakes cases, and why such beliefs can have troublesome implications for legal stability. The problem is that when some groups are swayed primarily by the material stakes in a dispute, and others are swayed more by threats to their social identity, the tendency of judges and other political actors may be to focus almost exclusively on resolving the material stakes, since those stakes seem more tangible. In this picture, the measurability of the material stakes in the dispute may create a false sense of comfort that a solution is within reach, which causes legal and political actors to gloss over the severe problems raised by the presence of identity politics. The various participants should be more proactive in trying to manage or sidestep these mixed stakes conflicts, but they underinvest in doing so, and when things break down, they are more liable to be caught by surprise.

   This Part concludes by illustrating these claims with both contemporary and historical examples, including a comparison of the political fights over free trade in the United States and Britain in the late nineteenth century, and an exploration of how sectionalist divisions over civil rights shaped federalism doctrines in the United States. In all these cases, conflicts that were framed as high stakes and zero-sum in nature produced legal or political outcomes that proved to be more resilient than those produced from mixed stakes conflicts.

   The Article then focuses on other deleterious implications of mixed stakes conflicts, especially in the realm of international economic law. Part 11 argues that because the boundaries between identity and material concerns are likely to be opaque, mixed stakes disputes tend to be more susceptible to political manipulation. As an illustration of such manipulation, this Part focuses on the tendency for politicians in the United States to cloak international trade disputes in the rhetoric of national rivalry. The problem is that even when such manipulation can be deployed for supposedly benign purposes, such as increasing one's bargaining leverage in international trade negotiations, it can have unintended adverse effects. By encouraging an intense and emotionally fraught mindset among the general public, such manipulation gives the President more leverage to circumvent domestic and international constraints on his authority to dispense and withdraw benefits in international trade. Ironically, one likely outcome of invoking national rivalry in trade disputes is that it may make it easier for certain groups to use the government to achieve private ends and weaken the courts and agencies that act as countervailing forces against such groups. The recent increase in invocations of national security exceptions in international trade controversies by the Trump administration is used to illustrate these claims.

   Part III suggests that when social identity politics are interspersed with material interests in international trade, they can also obstruct legal and policy efforts to compensate the losers from globalization. Take, for instance, the case of trade adjustment assistance in the United States. The challenge here is that when globalization's winners and losers are deeply divided along cultural as well as economic lines, there are fewer inducements for each side to demonstrate collective solidarity towards the other. In other words, to the extent that globalization's winners view themselves as culturally and ideologically alienated from the losers, it will be difficult to conjure the level of sacrifice necessary to sustain a generous compensation scheme.

   In this environment, the groups who happen to have the political leverage to extract the most compensation may not necessarily be the most economically vulnerable but those who are most adept at mobilizing around a distinct social identity and causing political trouble. The problem is that the ability to mobilize and generate trouble is unlikely to be evenly distributed across different social and racial groups. Moreover, compensation schemes that are rooted in the need to appease one's adversaries are fragile. To avoid being ignored by globalization's winners down the line, it pays for the losers to invest in a reputation of being willing to fight. Thus, in the end, compensation schemes designed to stave off political trouble may sometimes aggravate the very social conflict they are supposed to alleviate. Part IV concludes.

1. THE ARGUMENT AND ILLUSTRATIVE SUPPORT FOR ITS PLAUSIBILITY

   Very few situations in international and constitutional law may fit comfortably into the two extremes of pure cleavages over social identity or material interests. But there is one intermediate category that is of considerable importance for our analysis: where the fault-line of the conflict includes an even mix of material interests and threats to social identity. These kinds of legal and political conflicts are likely to be more challenging because whenever there is a dispute, the participants are likely to have inconsistent beliefs about what is at stake.

   Subpart A elaborates on why this intermediate category of...