Faculty Books & Edited Works

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The Logic of Subchapter K: A Conceptual Guide to the Taxation of Partnerships

Laura E. Cunningham and Noël B. Cunningham

The material avoids neither the hard questions nor the conceptual difficulties, leaving students with a firm understanding of partnership taxation. Each chapter begins with a basic explanation of the relevant provisions, and the roles that they play in the overall structure of Subchapter K. Includes an increasingly detailed discussion of the specific rules, including multiple illustrative examples. Each chapter builds on the earlier chapters, leading the student through Subchapter K's seamless web. For J.D. or graduate-level law school courses on partnership taxation.
Law and New Governance in the EU and the US

Gráinne de Búrca and Joanne Scott

New approaches to governance have attracted significant scholarly attention in recent years. Commentators on both sides of the Atlantic have identified, charted and evaluated the rise and spread of forms of governance, forms which seem to differ from previous regulatory and legal paradigms. In Europe, the emergence of the Open Method of Coordination has provided a focal point for new governance studies. In the US, scholarship on issues such as collaborative problem-solving, democratic experimentalism, and problem-solving courts exemplify the interest in similar developments. This book covers diverse policy sectors and subjects, including the environment, education, anti-discrimination, food safety and many others. While some chapters concentrate on the operation of new governance mechanisms in a federal and multilevel context and others look at the relationship between public and private mechanisms and settings, what all the contributors share in common is the pursuit of effective mechanisms for addressing complex social problems, and the challenges they raise for our understanding of law and constitutionalism, and of legal and constitutional values.
Intellectual Property Stories

Rochelle C. Dreyfuss and Jane C. Ginsburg

This book brings famous cases to life by telling the true, never-heard-before stories behind landmark Intellectual Property cases. It is organized into six chapters, each drawing on cases in patents, copyrights, trademarks, or unfair competition, to illustrate the problems encountered in intellectual property law. The works, inventions, and marks at issue in these cases vary widely.
The Future of the Voting Rights Act

David L. Epstein, Richard H. Pildes, Raphael O. de la Garza, and Sharyn O'Halloran

The Voting Rights Act (VRA) stands among the great achievements of American democracy. Originally adopted in 1965, the Act extended full political citizenship to African-American voters in the United States nearly 100 years after the Fifteenth Amendment first gave them the vote. While Section 2 of the VRA is a nationwide, permanent ban on discriminatory election practices, Section 5, which is set to expire in 2007, targets only certain parts of the country, requiring that legislative bodies in these areas--mostly southern states with a history of discriminatory practices--get permission from the federal government before they can implement any change that affects voting. In The Future of the Voting Rights Act, David Epstein, Rodolfo de la Garza, Sharyn O'Halloran, and Richard Pildes bring together leading historians, political scientists, and legal scholars to assess the role Section 5 should play in America's future. The contributors offer varied perspectives on the debate. Samuel Issacharoff questions whether Section 5 remains necessary, citing the now substantial presence of blacks in legislative positions and the increasingly partisan enforcement of the law by the Department of Justice (DOJ). While David Epstein and Sharyn O'Halloran are concerned about political misuse of Section 5, they argue that it can only improve minority voting power—even with a partisan DOJ—and therefore continues to serve a valuable purpose. Other contributors argue that the achievements of Section 5 with respect to blacks should not obscure shortcomings in the protection of other groups. Laughlin McDonald argues that widespread and systematic voting discrimination against Native Americans requires that Section 5 protections be expanded to more counties in the west. Rodolfo de la Garza and Louis DeSipio point out that the growth of the Latino population in previously homogenous areas and the continued under-representation of Latinos in government call for an expanded Section 5 that accounts for changing demographics. As its expiration date approaches, it is vital to examine the role that Section 5 still plays in maintaining a healthy democracy. Combining historical perspective, legal scholarship, and the insight of the social sciences, The Future of the Voting Rights Act is a crucial read for anyone interested in one of this year's most important policy debates and in the future of civil rights in America.
How Progressives Rewrote the Constitution

Richard A. Epstein

How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought of the Progressive Era and how the Supreme Court was used to transform the Constitution into one that reflected the ideas of their own time, while undermining America’s founding principles. Epstein examines key decisions to demonstrate how Progressives attacked much of the legal precedent and eventually weakened the Court’s thinking concerning limited federal powers and the protection of individual rights. Progressives on the Court undermined basic economic principles of freedom and competition, paving the way for the modern redistributive and regulatory state. As Epstein writes, the Progressives “were determined that their vision of the managed economy should take precedence in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures.” How Progressives Rewrote the Constitution shows that our modern “constitutional law,” fashioned largely by the New Deal Court in the late 1930s, has its roots in Progressivism, not in our country’s founding principles, and how so many of those ideas, however discredited by more recent economic thought, still shape the Court’s decisions.
Intellectual Property for the Technological Age

Richard A. Epstein

This paper replies to critics of intellectual property (IP). In the big picture, the present IP regime works quite well. Small reforms are preferable to drastic ones. Critics tend to overstate problems with IP, and overestimate the workability of alternatives. Critics of IP argue that it can hinder innovation by: giving holders monopoly power; freezing out new technologies; creating so many rights that negotiations are impossible; being too complex and costly. The threat of IP monopolies is overstated, and cures like compulsory licensing do more harm than good. Generally, the current IP regime works well. Alternatlves like open source software have limitations. Some reforms would be helpful. The patent and trademark office should be reformed. The United States should switching to first-to-file and require publication within 18 months. More should be done to stop the systematic piracy of intellectual property.
Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation

Richard A. Epstein

An analysis of how we regulate the pharmaceutical industry: are we protecting patients or blocking the development of useful new drugs? This book is the first to offer a comprehensive examination of the pharmaceutical industry by following the tortuous course of a new drug as it progresses from early development to final delivery. Richard A. Epstein looks closely at the regulatory framework that surrounds all aspects of making pharmaceutical products today, and he assesses which current legal and regulatory practices make sense and which have gone awry. While critics of pharmaceutical companies call for ever more stringent controls on virtually every aspect of drug development and approval, Epstein cautions that the effect of such an approach will be to stifle pharmaceutical innovation and slow the delivery of beneficial treatments to the patients who need them. The author considers an array of challenges that confront the industry--conflicts of interest among government, academe, and the drug companies; intellectual property rights that govern patents; FDA regulation; pricing disputes; marketing practices; and liability issues, including those brought to light in the recent VIOXX case. Epstein argues that to ensure the continuing creativity, efficiency, and success of the pharmaceutical industry, the best system will feature strong property rights and clearly enforceable contracts, with minimal regulatory and judicial interference.
Party Funding and Campaign Financing in International Perspective

K. D. Ewing and Samuel Issacharoff

This volume deals with questions of political party funding and campaign financing, issues which arouse controversy in many parts of the world. How are the central actors in the political arena supposed to gather the funds necessary to operate effectively on behalf of their chosen political ends? And, how may they spend money in furtherance of their political objectives? The aim of this volume, the first in a new series of Columbia University/London University collaborative projects, is to explore these issues in the specific context of a number of national settings. The studies presented here show that financing questions cannot be addressed independent of the constitutional conventions of the country, the nature of the political parties in the country, and the means of access to publication and the media in any given nation. The national studies in this volume reveal a rich diversity in the approach to regulation in Australia, Canada, the European Union, Japan, New Zealand, Quebec, the United Kingdom and the United States. The topicality of the issues considered is reflected in the fact that since the book was first mooted there have been major decisions of the US Supreme Court and the Supreme Court of Canada, as well as an investigation and report by the Electoral Commission in the United Kingdom, all of which have a direct bearing on the legal and policy issues discussed in this book.
Principles of Products Liability

Mark A. Geistfeld

The varied doctrines, disputes, competing conceptions of liability and responsibility, and leading cases in this area are all discussed in this book. Unlike other books in this subject area, this title fully develops the underlying concepts and then repeatedly shows how the important doctrines can be understood in terms of a few basic principles. The book also provides insights into the processes of the common law, while locating products liability within tort law more generally. The book will be of interest both for the specialized study of products liability and the more general study of tort law.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon

Prior edition of Regulation of Lawyers: Statutes and Regulations.
Federal Income Taxation

William A. Klein, Joseph Bankman, and Daniel N. Shaviro

Generations of students -- and instructors -- have praised the book's successful approach: - problems interspersed among notes and questions - student-friendly text is also sufficiently challenging - a tradition of outstanding authorship - unique introduction providing insightful historical background and some economic analysis - theory and policy integrated throughout the text - excellent Teacher's Manual This extensive revision covers the many recent developments in taxation: - health insurance - the special rate for dividends - tax treatment of stock options - the deduction for medical expenses and its effects - new Health Savings Account provisions and their intended effects - new definitions of dependents, qualifying relatives, etc. - description of Section 529 qualified tuition programs - Revenue Ruling 2004-18 on deduction for costs to clean up land with hazardous waste - new Circular 230 rules for tax shelter opinions - Revised AMT discussion - new cases in the main text and notes, including King v. Commissioner, Banks v. Commissioner, Churchill Downs, Inc. v. Commissioner, INDOPCO, Inc. v. Commissioner, Colsec Industries v. United States, and United States v. Maginnis
Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute: Adopted and Promulgated by the American Law Institute at Philadelphia, Pennsylvania, May 17, 2005

Andreas F. Lowenfeld and Linda J. Silberman

This American Law Institute project began with the encouragement of the United States Department of State when the Hague Conference on Private International Law was considering an international convention on Jurisdiction and Judgments. Because recognition and enforcement of foreign judgments has traditionally been treated as a matter of state law, United States implementation of a Hague Convention on the subject would require federal legislation. The Institute invited Professors Andreas Lowenfeld and Linda Silberman of New York University School of Law to draft such legislation with supporting discussion and explanation. When progress toward a convention slowed at The Hague, the Reporters and most of their Advisers decided that the United States would benefit from a federal statute whether or not there was a convention to implement and that the ALI should draft and recommend such a statute. As the Reporters continued and expanded their work, the project was retitled Recognition and Enforcement of Foreign Judgment: Analysis and Proposed Federal Statute. The completed work, here published, contains valuable scholarship and comprehensive review of current law. It also contains discussion of the constitutional basis for federal legislation on the subject of foreign judgments. The most controversial issue in this effort has been whether to require reciprocity from countries whose judgments come before an American court for enforcement. The Reporters have done imaginative and sophisticated work to draft and explain the reciprocity requirement that this volume recommends. The membership of the Institute was divided on whether a federal statute concerning foreign judgments should contain a reciprocity requirement, but a substantial vote in two successive Annual Meeting favored reciprocity, subject to the burden of proof being on the party resisting recognition or enforcement on the basis of lack of reciprocity. The Institute believe that this project will have influence whether or not the recommended statute is enacted by helping the legal community to understand these challenging issues. The Reporters, leading scholars of both civil procedure and international law, have made a major contribution to the Institute and to legal scholarship. We thank them, the distinguished group of Advisers who assisted them, and the many ALI members who have participated in our lively discussions of this subject.
The Humanization of International Law

Theodor Meron

This work aims to consider the influence of human rights and humanitarian law on general international law: the humanization of international law. Although human rights and humanitarian norms are central to the book, it is not a book about human rights and humanitarian law. Rather, it deals with the radiation, or the reforming effect, that human rights and humanitarian law have had on other fields of public international law. Because of the peculiarities of human rights law, this influence cannot be taken for granted. It is sometimes said that the elaboration of human rights norms and institutions has produced no less than a revolution in the system of international law. Is this true and if so in which parts of international law? By examining most areas of public international law, the author attempts to demonstrate that the influence of human rights and humanitarian norms has not remained confined to one sector of international law, but that its influence has spread to many parts, albeit to varying degrees. The Humanization of International Law is a revised and expanded version of the General Course on Public International Law delivered by the author at the Hague Academy of International Law in 2003.
Civil Procedure: Theory and Practice

Linda J. Silberman, Allan R. Stein, and Tobias Barrington Wolff

The first-year course in civil procedure presents a great challenge for both teacher and student. Unlike most of the first-year courses—contracts, torts, and criminal law—with which students have some familiarity, students approach civil procedure with little context. Concepts of jurisdiction and summary judgment seem completely foreign to many students. In addition, civil procedure is the classic “seamless web”; in order to understand any piece, you must understand the whole. Thus, it is imperative for the teacher to find a way to give students a feel for the interrelationship of various pieces of a litigation as each individual unit is examined. The teacher must also battle potential misconceptions about a course in “procedure.” Students often think that procedure is just about learning a series of mechanical rules against which the important policy disputes of substantive law are played out. Students are surprised to discover that procedure issues also turn on deep and interesting conceptual questions and that arguments about procedure are often the critical turning point in the outcome of litigation. Procedure is, in fact, one of the best vehicles for developing the full range of reasoning skills and perspectives critical to the discipline of law. In certain areas, such as personal jurisdictions and the Erie doctrine, the development of the case law is a paradigmatic exercise in legal process. Students in the course are also introduced to a broad range of legal sources. Aside from reading cases, students grapple with rules, statutes, and constitutional provisions, and must master the interpretive techniques unique to each. Consideration of lawyering strategy is a constant undercurrent. Understanding why the parties have sued in a particular court or framed the complaint in a particular way requires a thorough integration of theory and practice, doctrine and policy. We appreciate the enormous challenge of putting together a book that can meet all of these objectives. We have produced a book with significant links to the rich tradition of casebooks that precede it, but with a modern pedagogy and distinctive focus. In particular, we have tried to provide a direct and clear treatment of fundamental principles. For each topic, we provide introductory material that the students and teacher can use as a starting point, and from there we explore more difficult issues through the cases and questions. We rarely ask a question without providing at least the beginning of an answer. We eschew the traditional approach of providing a principal case for every important issue. Instead, we make extensive use of notes and questions to provide wide coverage and depth. Much of this material is self-explanatory and does not always require class time to review. Each principal case has been selected because it provides a rich teaching opportunity. Cases are carefully framed to give students a sense of where each case fits in and why it has been assigned. We make explicit the relationship of a principal case to the other cases that precede and follow it. A substantial amount of the material is presented outside of the case method altogether. Chapters 1 and 5 are designed around actual litigation documents. Global and policy perspectives are exposed throughout the book. Unlike some approaches that merely expose the students to these sources by way of supplement or example, these materials are integrated into the structure of the book. We begin in Chapter 1 with an overview of the entire litigation process. This approach enables the student at the outset to see how various pieces of the puzzle fit together and to gain an introduction to relevant terms and concepts. Not only do we provide a detailed summary of the stages of litigation, but we also take the reader through an actual case, illustrated with actual court documents. The case resulted in the landmark Supreme Court ruling on libel, New York Times v. Sullivan. It is, we think, a particularly engaging and self-explanatory introductions to how procedure works on the ground. We also provide an exercise in “Reading a Civil Procedure Case,” in which we make explicit many of the traditionally unstated assumptions about why and how we read judicial decision. From there we move in the first several chapters to the important federalism doctrines that form the core of most procedure courses: personal jurisdiction, subject matter jurisdiction, and the Erie doctrine. These beginning chapters not only serve as an important illustration of case law methodology but also allow us to emphasize the strategic choices that lawyers face every day in a federal system. That perspective is also characteristic of the later chapters on preclusion, remedies, and class actions. We consistently address the question of why the law matters to the parties and their lawyers. In addition, we pursue broader questions of policy and expose the students to contrasting state practices and international perspectives. Perhaps the most innovative chapter of the book is the one on pleading, discovery, and adjudication, in which an actual case forms the centerpiece of the chapter. Each of us, having taught various procedure courses for many years, is familiar with the attempts of many teachers to supplement the casebook with simulations and litigation documents. Our approach integrates these materials into the structure of the chapter. We have combined all of the elements of an adjudication into a single chapter and use a single product lability case as a teaching tool throughout. We provide a succinct but comprehensive presentation of the law and explore how those legal concepts apply to the case at hand. Students have the opportunity to see the actual court documents while they attempt to apply the rules and doctrine. They gain a good sense of how the legal concepts work, and they develop the critical skills of fact management and strategic judgment. Notwithstanding the depth and sophistication of the material, our adopters have found that the book works well in a wide range of contexts. Many of our adpoters have used the book in four- or five-hour, one-semester courses, while others have had the luxury of a full year, six-hour course. The books seems to work equally well in both settings. We are delighted to present the second edition of CIVIL PROCEDURE: THEORY AND PRACTICE and welcome our new co-author Tobias Wolff, Professor of Law at the University of California at Davis. This edition incorporates important developments in the law of procedure, includes a new chapter on remedies, and expands our consideration of international and comparative perspectives. The core structure and pedagogical assumptions of the first edition are unchanged. The most significant change in this edition is our new chapter on the law of remedies and provisional relief, Chapter 6. This chapter gives a rich but concise account of the standards for grating equitable relief. It then examines the different forms of equitable relief that a litigant can seeks during a lawsuit—temporary restraining order, preliminary injunction, permanent injunction—and explores the impact that each can have on the litigation process. Finally, it treats the subject of provisional relief—attachment, garnishment—synthesizing the Supreme Court’s pronouncements in this field to provide a solid understanding of the practical and constitutional concerns associated with ex parte or pre-litigation court orders. For teachers who wish to examine these materials in more depth, the chapter also includes some discrete and easily separable discussions of the major schools of thought on the proper role of equity courts, drawing upon materials from las and economics and from the law of public institutions and the structural injunction. The timing of this edition has been fortuitous. We have been able to incorporate a number of very recent, significant developments in the law of procedure. In some cases the material in the casebook has been significantly restructured around those developments: The personal jurisdiction chapter now includes expanded coverage of the jurisdictional implications of defamation and electronic communications, as well as more in-depth consideration of global and comparative perspectives. The subject matter jurisdiction chapter has been significantly reworked to take account of the Supreme Court’s decisions in Grable and Allapattah, as well as new federal statutes affecting jurisdiction in class actions and multistate controversies. Chapter 5, Anatomy of a Litigation, now includes significantly expanded coverage of the right to jury trial, and judgments as a matter of law, including new principal cases on these topics. We have also provided a new discussion of discovery in the international context. The preclusion chapter incorporates several major developments from the last five years. It includes a new section on the doctrine of judicial estoppel, which the Supreme Court formally recognized for the first time several years ago. For those teachers who cover interjurisdictional preclusion issues, the chapter also provides a thorough discussion of the Semtek case and the preclusive effect to be afforded to the judgments of federal courts sitting in diversity. We have made major additions to the sections of Chapter 8 dealing with class actions and complex litigation. We provide a thorough discussion of the Class Action Fairness Act of 2005 and explore some of its likely implications for the future of class action litigation. We have also replaced the Castano case with the more recent opinion of the Seventh Circuit in the Bridgestone/Firestone litigation, a change that provides the opportunity to explore more recent developments in nationwide class action practice. Chapter 8 also offers a comprehensive treatment of the Multiparty Multiform Trial Jurisdiction Act.
Privacy and Technologies of Identity: A Cross-Disciplinary Conversation

Katherine J. Strandburg and Daniela Stan Raicu

Privacy and Technologies of Identity: A Cross-Disciplinary Conversation provides an overview of ways in which technological changes raise privacy concerns. It then addresses four major areas of technology: RFID and location tracking technology; biometric technology, data mining; and issues with anonymity and authentication of identity. Many of the chapters are written with the non-specialist in mind, seeking to educate a diverse audience on the "basics" of the technology and the law and to point out the promise and perils of each technology for privacy. The material in this book provides an interface between legal and policy approaches to privacy and technologies that either threaten or enhance privacy. This book grew out of the Fall 2004 CIPLIT(r) Symposium on Privacy and Identity: The Promise and Perils of a Technological Age, co-sponsored by DePaul University's College of Law and School of Computer Science, Telecommunications and Information Systems. The Symposium brought together leading researchers in advanced technology and leading thinkers from the law and policy arenas, many of whom have contributed chapters to the book. Like the Symposium, the book seeks to contribute to a conversation among technologists, lawyers, and policymakers about how best to handle the challenges to privacy that arise from recent technological advances.
Covering: The Hidden Assault on Our Civil Rights

Kenji Yoshino

A lyrical memoir that identifies the pressure to conform as a hidden threat to our civil rights, drawing on the author's life as a gay Asian American man and his career as an acclaimed legal scholar. "[Kenji] Yoshino offers his personal search for authenticity as an encouragement for everyone to think deeply about the ways in which all of us have covered our true selves. . . . We really do feel newly inspired."--The New York Times Book Review Everyone covers. To cover is to downplay a disfavored trait so as to blend into the mainstream. Because all of us possess stigmatized attributes, we all encounter pressure to cover in our daily lives. Racial minorities are pressed to "act white" by changing their names, languages, or cultural practices. Women are told to "play like men" at work. Gays are asked not to engage in public displays of same-sex affection. The devout are instructed to minimize expressions of faith, and individuals with disabilities are urged to conceal the paraphernalia that permit them to function. Given its pervasiveness, we may experience this pressure to be a simple fact of social life. Against conventional understanding, Kenji Yoshino argues that the work of American civil rights law will not be complete until it attends to the harms of coerced conformity. Though we have come to some consensus against penalizing people for differences based on race, sex, sexual orientation, religion, and disability, we still routinely deny equal treatment to people who refuse to downplay differences along these lines. At the same time, Yoshino is responsive to the American exasperation with identity politics, which often seems like an endless parade of groups asking for state and social solicitude. He observes that the ubiquity of covering provides an opportunity to lift civil rights into a higher, more universal register. Since we all experience the covering demand, we can all make common cause around a new civil rights paradigm based on our desire for authenticity--a desire that brings us together rather than driving us apart.
Foundations of Bankruptcy Law

Barry E. Adler

Bankruptcy is relevant not merely as a last resort but influences individual and corporate decisions from the time of or before obligations are first incurred. In this sense, bankruptcy is as basic to private ordering as the more familiar inhabitants of the private-law pantheon including contract, corporate, property, and tort law. This book of brief, mostly non-technical, excerpts from leading bankruptcy scholarship builds the concepts of bankruptcy law from first principles and thus allows the reader to understand bankruptcy's fundamental nature. In more detail, the book begins in Chapter I with a description of debt itself, which serves one set of functions for individuals and a different set for corporations. Chapter II touches on the political economy of bankruptcy law, including an explanation of how the presence of debt in society and in the economy give rise to special interests. Chapter I II addresses bankruptcy issues specific to the individual debtor, with a focus on the fresh start, its role and its limitations. Chapter IV addresses bankruptcy issues specific to the corporate debtor, with special attention to the role of bankruptcy law in the link between capital structure and investment incentive. Chapter V samples the recent literature on proposed alternatives to—not merely reform of—corporate bankruptcy. This material encourages the reader critically to examine the efficacy of current bankruptcy law, which is valuable even if the proposals themselves are never enacted. The book concludes, in Chapter VI, with an examination of special problems in transnational bankruptcy, an examination that provides a new context in which the reader m ay consider or rehearse many of the issues discussed earlier in the book.
Labour Rights as Human Rights

Philip G. Alston

Are efforts to protect workers' rights compatible with the forces of globalization? How can minimum standards designed to protect labor rights be implemented in a world in which national labor law is more and more at the mercy of international forces beyond its control? The contributors to this volume argue that international agreements and institutions are of central importance if labor rights are to be protected in a globalized economy, exploring some of the options that are open to governments, civil society, and the labor movement in the years ahead.
Non-State Actors and Human Rights

Philip G. Alston

Can transnational corporations ignore human rights as long as governments don't hold them accountable? If the UN is put in charge of a territory, is it bound by human rights law? Under traditional approaches to human rights, non-state actors cannot be parties to the relevant treaties and so they are only bound to the extent that obligations accepted by States can be applied to them by governments. This situation threatens to make a mockery of much of the international system of accountability for human rights violations. The contributors to this volume examine the different approaches that might be taken in order to ensure some degree of accountability. Making space in the legal regime to take account of the role of non-State actors is one of the biggest and most critical challenges facing international law today.
Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency

Philip G. Alston and Olivier de Schutter

Coherent laws enforced by a central authority are part of the reason why human rights protection works at the national level in Europe. But when it comes to the EU these dimensions are lacking. The present system for protecting fundamental rights emerged on an ad hoc basis, with measures being improvised to respond to particular problems. In the next couple of years, however, this situation is likely to change very significantly. The proposed European Constitution incorporates the EU Charter of Fundamental Rights, and a specialized EU Fundamental Rights Agency is likely to be established. As a result, the situation of the EU will more closely resemble that of its Member States. Fundamental rights will occupy a central role, and coherent and systematic arrangements will be in place to protect rights, using both judicial and non-judicial means. The Fundamental Rights Agency, in particular, has immense potential to ensure effective monitoring of fundamental rights in the EU, and to ensure a unified strategy for their promotion in EU law and policy. This volume is the first to critically examine the proposals put forward by the European Commission in October 2004 on the creation of the EU Fundamental Rights Agency. Leading scholars in the field of European and international human rights law analyse the potential significance of this innovative Agency, and seek to locate it in relation to various other human rights mechanisms, both in the EU's constitutional structure and within Member States. They review the tasks which the Agency could be called upon to perform, and make proposals as to how it can function most effectively. The relationship of EU law to the international law of human rights emerging from both the United Nations and the Council of Europe is examined. The authors also address the challenge of ensuring improved coherence between EU law and the other human rights obligations undertaken by the Member States. Taken together, these contributions address urgent questions facing the EU at a time when the central unifying function of fundamental rights has been recognized but the way forward remains largely uncharted.
Human Rights and Development: Towards Mutual Reinforcement

Philip G. Alston and Mary Robinson

Only in the past 15 years or so, with the fall of the Berlin Wall and the realization that freedom and economic well-being are empirically linked, have the professional communities dealing with development and human rights issues begun to communicate effectively. But too much of the dialogue has been confined to an abstract or theoretical level. The eminent contributors to this volume address highly specific but crucial aspects of the human rights and development interface, including the economics of social rights; land rights and women's empowerment; child labor and access to education; reform of legal and judicial systems; the human rights role of the private sector; and building human rights into development planning, especially the Poverty Reduction Strategy process.
Laying the Foundations for Children's Rights: An Independent Study of Some Key Legal and Institutional Aspects of the Impact of the Convention on the Rights of the Child

Philip G. Alston and John Tobin

This study provides a critical and constructive analysis of how far the international community and individual states have come in their efforts to establish the normative, legal, and institutional frameworks which are essential if the aspirations of the Convention are to be translated into reality. Within this context the study seeks to achieve three objectives: (1) to draw up a balance sheet of some of the Convention’s achievements and shortcomings in terms of laying the foundations for an effective Convention-based regime; (2) to provide a balanced perspective on the Convention’s importance within the overall range of endeavors to improve the well-being of children in the world; and (3) to expose and examine some of the dilemmas and complexities which arise in efforts to promote and give effect to the Convention.
International Organizations as Law-Makers

José E. Alvarez

This book addresses how international organizations with a global reach, such as the UN and the WTO, have changed the mechanisms and reasoning behind the making, implementation, and enforcement of international law. It argues that existing descriptions of international law and international organizations do not do justice to the complex changes resulting from the increased importance of these institutions after World War II and then after the end of the Cold War. In particular, this book examines the impact of the institutions on international law through the day-to-day application and interpretation of institutional law, the making of multilateral treaties, and the decisions of a proliferating number of institutionalized dispute settlers. Part I re-examines the law resulting from the activity of political organs, such as the UN General Assembly and Security Council, technocratic entities within UN specialized agencies, and international financial institutions such as the IMF, and considers their impact on the once sacrosanct ‘domestic jurisdiction’ of states. Part II assesses the impact of the move towards institutions on treaty-making. It addresses the interplay between negotiating venues and procedures and interstate cooperation and asks whether the involvement of international organizations has made modern treaties ‘better’. Part III examines the proliferation of institutionalized dispute settlers, from the UN Secretary General to the WTO's dispute settlement body, and re-examines their role as both settlers of disputes and law-makers. The final chapter considers the promise and the perils of the turn to formal institutions for the making of the new kinds of ‘soft’ and ‘hard’ global law, including the potential for forms of hegemonic international law.
Econometrics: Legal, Practical, and Technical Issues

American Bar Association Section of Antitrust Law, Daniel L. Rubinfeld, and John Harkrider

The Section of Antitrust Law is pleased to publish Econometrics: Legal, Practical, and Technical Issues. The economic expert has become a central figure in virtually every antitrust litigation or merger matter, and the importance of econometrics has increased significantly. A basic understanding of econometric principles has now become almost essential to the serious antitrust practitioner. This volume is designed to introduce lawyers to the theoretical and practical issues of econometrics, providing necessary tools for working effectively with economic experts on both sides of a matter. . . . Econometrics: Legal, Practical, and Technical Issues was born from a concern that the increasing use of econometrics in antitrust was creating an information gap between lawyers and economists, with potential effects on the quality of judicial determinations based on econometric evidence. In particular, econometricians were resenting highly sophisticated and abstract mathematical models to lawyers, many of whom were not schooled in these techniques and might not understand their significance. Moreover, econometricians were relying upon data that did not always accurately reflect the facts developed by the witnesses and the lawyers. Consequently, there was a concern that courts and agencies hearing antitrust matters might rely upon econometric evidence without a full understanding of its limitations or requirements, or might reject such evidence without recognizing its merits. Econometrics introduces readers to legal, practical, and technical issues in econometrics so that they can better understand the econometric analyses performed by their adversary or their own expert. This information may help them present these issues to courts and agencies more effectively. The purpose of this book is not to enable lawyers to perform econometric analysis, which is a highly technical field that requires a detailed understanding of matrix algebra and statistical theory, but simply to narrow the econometrics information gap. To that end, it provides case studies in which the parties or the government used econometric analysis. To make this volume as accessible as possible, equations and detailed mathematical proofs are kept to a minimum in the body of the text, with further detail in the appendices. Econometrics is divided into five parts: Part I introduces econometrics and discusses the legal issues raised by the use of econometric evidence, including admissibility of expert econometric testimony under Daubert v. Merrell Down Pharmaceuticals, Inc. (Chapter II), discovery of econometric evidence (Chapter III), and practical advice regarding the use of econometric evidence in jury trials (Chapter IV). Part II focuses on the view of the antitrust enforcement agencies regarding the use of econometric evidence, including some best practices regarding the use of econometrics before the FTC (Chapter V) and a review of four recent cases in which econometric evidence was presented to and used by the DOJ (Chapter VI). Part III illustrates how econometrics can be applied to a variety of practical antitrust contexts, including damage analysis (Chapter VII), class certification (Chapter VIII), auction markets (Chapter IX), and price discrimination (Chapter X). Part IV discusses the use of econometrics in analyzing the competitive effects of mergers, with particular attention to merger simulation, including the Antitrust Logit Model (ALM), the Almost Ideal Demand System (AIDS), and the proportionately-calibrated AIDS model (PCAIDS) (Chapter XI), as well as residual demand and price/cost analysis (Chapter XII). The first appendix of this volume then applies some of the theories presented earlier in a series of case studies: WorldCom’s proposed acquisition of Sprint, Staples’ proposed acquisition of Office Depot, and acquisitions among large incumbent local exchange carriers. The book concludes with three further appendices that explain in more detail many of the econometric terms and methods used elsewhere in the volume, including a discussion of Ordinary Least Squares Regression (OLS), the logit model, and a review of data problems, including issues raised by accounting data and scanner data.
The Ethics of Identity

Kwame Anthony Appiah

Race, ethnicity, nationality, religion, gender, sexuality: in the past couple of decades, a great deal of attention has been paid to such collective identities. They clamor for recognition and respect, sometimes at the expense of other things we value. But to what extent do “identities” constrain our freedom, our ability to make an individual life, and to what extent do they enable our individuality? In this beautifully written work, renowned philosopher and African Studies scholar Kwame Anthony Appiah draws on thinkers through the ages and across the globe to explore such questions. The Ethics of Identity takes seriously both the claims of individuality—the task of making a life—and the claims of identity, these large and often abstract social categories through which we define ourselves. What sort of life one should lead is a subject that has preoccupied moral and political thinkers from Aristotle to Mill. Here, Appiah develops an account of ethics, in just this venerable sense—but an account that connects moral obligations with collective allegiances, our individuality with our identities. As he observes, the question who we are has always been linked to the question what we are. Adopting a broadly interdisciplinary perspective, Appiah takes aim at the clichés and received ideas amid which talk of identity so often founders. Is “culture” a good? For that matter, does the concept of culture really explain anything? Is diversity of value in itself? Are moral obligations the only kind there are? Has the rhetoric of “human rights” been overstretched? In the end, Appiah’s arguments make it harder to think of the world as divided between the West and the Rest; between locals and cosmopolitans; between Us and Them. The result is a new vision of liberal humanism—one that can accommodate the vagaries and variety that make us human.