Mixed Stakes Conflicts in International and Constitutional Law


In international and constitutional law, high stakes conflicts over sacred values and social identity tend to be viewed as the most difficult and intractable, while conflicts over material resources are usually considered more manageable. This Article suggests a contrary view: it is often those legal and political conflicts that implicate an even mix of both social identity and more mundane material stakes that are likely going to be the most destabilizing. First, in such mixed stakes conflicts, the protagonists are more likely to have inconsistent beliefs about what it is stake, and thus are less likely to agree about how to resolve them. By contrast, in particularly high stakes and polarizing conflicts over only social identity, moral values, or status, the protagonists will tend to be mutually aware of the dangers of a breakdown of the system and are more likely to search for coping solutions. Second, political actors in mixed stakes conflicts have more leeway to manipulate the legal boundaries between the sacred and the mundanefor political and economic gain. Finally, this Article suggests that mixed stakes conflicts may present sign ‘cant barriers to efforts to compensate groups who have been harmed by economic globalization. When groups are divided sharply along social identity as well as economic lines, they are likely to be less willing to demonstrate solidarity towards each other. These general theoretical points are illustrated by reference to legal disputes over international trade, federalism, and civil rights in the United States.


Stanford University Stanford, California
  • Jide Nzelibe, Mixed Stakes Conflicts in International and Constitutional Law, 57 Stan. J. Int'l L. 55 (2021).
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