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Should Human Rights Practice Be Rights-Based?

Sarah Knuckey and Margaret L. Satterthwaite

Human rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to a vast array of policy areas and challenges, from climate change to housing, poverty, development, humanitarian response, and health policy. HRBAs promote rights fulfilment as a core goal, call for the identification of rights and obligations along with their correlative rights-holders and duty-bearers, and advance the principles of participation, accountability, equality, and non-discrimination. Yet, curiously, human rights actors do not commonly describe their own human rights investigation and advocacy practice and methods as ‘rights based’. Perhaps this is because it seems self-evident that human rights practice itself would be based in the human rights approach. Assessment of the entitlements of rights-holders and the obligations of duty-bearers is of course at the core of much human rights work. But rights-based approaches require much more than that. They advocate for work to recognize and promote the universality, indivisibility, and interdependence of rights, and to advance equality and non-discrimination. Importantly, HRBAs also seek to promote a way of working in which organizations are accountable to those most directly affected by human rights abuse and advocacy—rights-holders— and in which rights-holders and other key stakeholders participate in, own, and are empowered by the human rights work itself, rather than re-victimized, objectified, or marginalized. The approach aims to recognize, centre, and grow the agency and power of rights-holders over the conditions affecting their lives. However, especially on the HRBA process principles and rights-holder participation and empowerment goals, the human rights field far too often falls short, and some commonly used human rights advocacy practices undermine these ideals. Were HRBAs adopted by human rights organizations, the face of human rights advocacy would change—often dramatically—as rights-holders would be empowered to claim their own rights, becoming advocates themselves, and advocates not directly affected by the abuse would be re-cast in roles of support and solidarity. In this chapter, we argue that the human rights-based approach has been exported to many fields without ever being sufficiently integrated within human rights advocacy practice. This assessment is offered in the spirit of ‘introspection and openness’: as both scholars and human rights practitioners, we agree with Philip Alston that the challenges facing human rights today require us to ‘urgently rethink many of [our] assumptions, re-evaluate [our] strategies, and broaden [our] outreach, while not giving up on the basic principles’. Indeed, it is necessary to turn those principles back on ourselves, and to undertake a reckoning with whether human rights work is itself sufficiently rights based. Motivated by the leadership of rights-holders we have worked with and cognizant of the urgent need to end top-down approaches to human rights, we offer this chapter as an invitation to further discussion. This chapter first briefly traces the development of the ‘rights-based approach’, explains its key principles, outlines its implementation in other fields of international practice, and sets out key critiques of the approach. We then examine the rights-based approach in human rights practice, focusing specifically on human rights work by outside advocates—that is, advocacy carried out by practitioners not based in the community experiencing the violations at issue. We find that, although it is difficult to generalize across an enormous and heterogenous field, there is little formal, explicit use of the HRBA among human rights organizations. The substantive rights-based principles, including those related to the indivisibility, interrelatedness, and universality of rights, do receive broad commitment in the human rights field, and their implementation, while inconsistent, has significantly improved in practice over the past decades. However, through examining critical human rights scholarship and contemporary practice, we find that although human rights organizations have increasingly asserted their commitment to the process principles of participation, empowerment, and accountability, in practice the human rights field far too often fails to measure up. Even worse, common human rights research and advocacy approaches used by professionalized international and national NGOs not based in the communities where they work can actually disempower rights-holders and local advocates, produce and objectify victims, and be top- down and poorly accountable to those directly affected by abuse. Although there are many examples to the contrary—especially among grassroots organizations, newer organizations, feminist groups, and those based the global South—we argue that it is common in the human rights field for NGOs to fail to sufficiently adhere to foundational human rights principles in their own working methods. In so doing, their work can have the effect of reproducing unjust power hierarchies, and, where work involves northern NGO interventions in the global South, can also contribute to maintaining colonial northern advocate-as-saviour, southern rights- holder- as- victim frameworks. We conclude with a challenge to those of us in the field and working as outside advocates to commit to a deeper exploration of what more active implementation of human rights-based approaches could look like, and a specific call to directly challenge the socio-economic and political structures that lead to human rights abuses and undermine the ability of rights-holders to claim their rights. We conclude with some questions that could guide human rights practitioners and scholars in examining the practices that may require reform, and to face the challenges inherent in using rights-based approaches.
Understanding Adjudication

Lewis A. Kornhauser

A theory of adjudication begins with two sets of three questions: The first set asks about the behavior of courts. The second asks about the behavior of judges. We thus have: What do courts and judges do? What do courts and judges want? What constraints do courts and judges face? Attitudinalism, the predominant social science account of adjudication, has simple answers to these questions: Courts and judges choose policies; they have preferences over policies, and, at least on apex courts, they are unconstrained. These answers, even for apex courts, seem incomplete and misleading. Constitutional drafters, legislators, and treaty signatories devote substantial resources to devising complex institutional structures, a meaningless effort if the structure of institutions does not constrain the court. Judges typically deny that courts are political bodies engaged in the naked articulation of policy. They justify their decisions with long and complex opinions. Thus, sustained attention to judicial activity suggests that these six questions require more complex answers. Attitudinalism, in recognition of this apparent gap in its explanations, frequently posits a legal model with which to challenge its more realist explanation. The legal model, however, is poorly specified and not adequately tested against attitudinalism. Indeed, we require richer theories than attitudinalism both to approximate a legal model and to illuminate the processes of adjudication generally and of decision-making on apex courts in particular. Economists and political scientists have begun to develop these richer models. This essay introduces this theoretical literature. I focus on models of collegial courts in which a panel of judges decides cases together. Apex courts typically are collegial. The study of apex courts, however, also implicates issues of hierarchy because apex courts generally sit atop a hierarchy or may hear cases in panels that are subject to plenary review. This essay has two aims. First, it sketches the diverse universe of apex courts in an effort to identify features that theory should incorporate and illuminate. Second, it outlines some richer theoretical structures that, with substantial work, might provide a more robust theory of courts and adjudication. I begin this exploration of theory by discussing first what judges do, then what constraints judges face, and finally what judges want. I then examine some models to illustrate these formal structures. I focus on formal models because they yield sharp predictions that can be brought to data. The formal literature that I review largely studies federal or state courts in the United States. This focus, though explicable by the relative accessibility of data (and the national origins or residency of the authors), is unfortunate because apex courts elsewhere have significantly different internal structures and institutional settings. The extant literature reveals the importance of these institutional features on the behavior of courts and judges.
Nonlegislative Justification

Liam B. Murphy

If we take for granted that familiar moral constraints on the treatment of other people cannot be explained away in terms of the beneficial consequences of adopting certain standing dispositions and deliberative rules of thumb, the question remains as to what kind of explanation and justification of them is available. Can more be said than that it is self-evident to ‘thoughtful and well-educated people’ that certain ways of treating people are wrong? As most moral philosophers are in this respect Rawlsians now, most answer yes. Moral theory starts but does not end with a statement of considered judgments; it aims to provide a set of principles or a moral conception that matches our considered judgments in reflective equilibrium. Even philosophers such as Judith Jarvis Thomson and F. M. Kamm, who, unlike Rawls, insist that some considered judgments about particular cases must be treated as fixed, nonetheless see the point of moral theory as providing explanation and justification for those beliefs. Thomson writes, invoking Socrates, that ‘while a cluster of beliefs may be a cluster of true beliefs . . . , knowledge that they are true requires knowledge of what makes them true’. And Kamm, who insists that the first step in moral theory is the formulation of intricate moral principles as generalizations of ‘as many case-based judgments . . . as prove necessary’, holds that we cannot conclude that any principle is correct unless we find that it ‘expresses some plausible value or conception of the person or relations between persons’. Thomas Nagel well expresses the standard view: ‘Common sense doesn’t have the last word in ethics or anywhere else, but it has, as J. L. Austin said about ordinary language, the first word: it should be examined before it is discarded.’ A rather different approach has been explored by T. M. Scanlon since ‘Rights, Goals, and Fairness’ in 1975. His ‘reductive’ strategy does not start from considered judgments about particular cases or proposed principles as data. The project has been to find an intuitively compelling unified account of the domain of nonconsequentialist principles as a whole, reasoning to particular conclusions about moral principles from within the terms of that account. In a recent paper, Scanlon writes: ‘In developing my contractualist view, I was following Aristotle’s model. I was using the method of reflective equilibrium to identify the contractualist procedure of justification, which I thought gave the best account of (at least a portion of) morality, and then taking this procedure to be a way of reasoning “from first Principles” about what the content of this morality is and why.’ Scanlon does indicate that the overall plausibility of his contractualist method will depend not just on its appeal—in reflective equilibrium—as a general account of what makes certain ways of treating people wrong, but also on the intuitive acceptability of its outputs. Some principles may just seem obviously reasonably rejectable, and the task would then be to figure out what the grounds for this could be. Moreover, in some instances the structure of the contractualist method itself might have to be tweaked if it is the only way to block unacceptable results for particular cases. Still, the primary direction of argument is to judgments of right and wrong rather than from them.
Afterword

Melissa Murray

In January 2006, I arrived in Berkeley, California, for a job interview for an entry-level position teaching at the law school. The day was already pressure- filled, so imagine my utter terror when the appointments chair informed me that that Herma Hill Kay, Berkeley Law’s former dean and resident expert in Family Law and gender equality, was “very interested in talking to [me].” Our first audience began inauspiciously. I perched awkwardly on a chair in her office, trying hard not to stare at the photos and newspaper clippings that dotted the wall and shelves. I knew that Herma was a leader in many academic fields—Family Law, Conflict of Laws, Sex Equality—but it was nonetheless overwhelming to see her professional accomplishments splayed out across her office. There was Herma, resplendent in navy blue and gold, the first female dean of Berkeley Law. A framed certificate honored Herma’s service as one of the first women presidents of the Association of American Law Schools. On an adjacent shelf was the American Bar Association’s Margaret Brent Award, honoring Herma’s work advancing women’s rights and professional progress. There was a framed certificate commemorating Herma’s work as a member of Governor Edmund Brown’s Commission on the Family, which paved the way for California’s adoption of a no-fault divorce statute in 1969. Newspaper clippings chronicled Herma’s advocacy on behalf of California’s therapeutic abortion statute and the state’s ratification of the Equal Rights Amendment. In a smaller silver-edged frame was a photograph of Herma and Ruth Bader Ginsburg, heads together, editing their Sex Discrimination casebook. A framed newspaper article featured a photo of Herma throwing out the first ball at an Oakland As game with enviable form. There was even a photo of Herma piloting a single-engine plane. I tried hard to pay attention as she peppered me with questions, but I was dazzled. Everywhere I looked, I came face to face with Herma’s status as a living legend—a pioneer for women in the law. Six months after that first meeting, I joined the Berkeley Law faculty as an assistant professor, and Herma and I began building a professional and personal friendship that would last until her death in 2017. But curiously, in the ten years of our friendship, we rarely talked about Herma’s many accomplishments. Whenever I would try to get her to open up about her many successes, she would grace- fully steer the conversation in another direction. The only aspect of her work that she seemed especially eager to discuss was her book project chronicling the careers of the fourteen women who had preceded her as professors at accredited law schools. This project occupied her attention for the last fifteen years of her life. She spent countless hours interviewing her subjects and their colleagues, and poring over microfiche, newspaper clippings, and remnants of the women’s personal papers. Her goal, as she noted on more than one occasion, was to paint a complete picture of their professional lives. Despite long odds, these women had persisted, claiming a place in a profession that was often dismissive of them and their professional aspirations. Herma wanted to capture both the exhilaration of having made it, and the often-palpable loneliness of being the only woman in the room. She also wanted to ensure that, even as the profession and the professorate grows ever more diverse, these pioneering women were not forgotten. In this, she was, predictably, wildly successful. The book paints a searing portrait of what it was like to be a woman in the legal academy at a time when women were scarce and white men dominated both the ranks of the professorate and the student body. Her accounts of her pathbreaking predecessors make clear the indignities, both banal and profound, that these women routinely endured as the lone female on their faculties. One can only wince upon learning that for much of her career at Berkeley, Barbara Nachtrieb Armstrong was chronically under- paid relative to her male colleagues. By the same token, it is cringeworthy to read that the social worker charged with evaluating Marygold Melli for an adoption balked at the prospect of an adoptive mother who was also a full-time law professor. Of course, we can all chuckle at Melli’s pluck in dealing with the situation: she briefly surrendered her faculty position at the University of Wisconsin, only to be immediately reappointed to the faculty once the adoption was finalized.
Generalizability: Machine Learning and Humans-in-the-Loop

John Nay and Katherine J. Strandburg

Automated decision tools, which increasingly rely on machine learning (ML), are used in decision systems that permeate our lives. Examples range from high-stakes decision systems for offering credit, university admissions, and employment, to decision systems serving advertising. Here, we consider data-driven tools that attempt to predict likely behavior of individuals. The debate about ML-based decision-making has spawned an important multi-disciplinary literature, which has focused primarily on fairness, accountability and transparency. For example, the Association for Computing Machinery for the past few years has held a conference for researchers working on these issues. We have been struck, however, by the lack of attention to generalizability in the scholarly and policy discourse about whether and how to incorporate automated decision tools into decision systems. This chapter explores the relationship between generalizability and the division of labor between humans and machines in decision systems. An automated decision tool is generalizable to the extent that it produces outputs that are as correct as the outputs it produced on the data used to create it. The generalizability of an ML model depends on the training process, data availability, and the underlying predictability of the outcome that it models. Ultimately, whether a tool’s generalizability is adequate for a particular decision system depends on how it is deployed, usually in conjunction with human adjudicators. Taking generalizability explicitly into account highlights important aspects of decision system design, as well as important normative trade-offs, that might otherwise be missed. Section 1 provides the conceptual and technical basics underlying our analysis, situating the present discussion in the broader discourse about automated decision-making. It presents a simplified outline of considerations in designing and deploying a decision system, identifying various ways in which automated decision tools could be incorporated, and sketches the steps involved in creating ML models. Section 2 focuses on generalizability and its importance to debates about whether and how to incorporate automated decision tools into decision systems. It relates generalizability to the familiar “rules versus standards” discourse in legal theory and to more traditional data-driven modeling in computer science, social science, and policymaking. It analyzes facets of generalizability that are important for all data-driven models and highlights distinctive ways generalizability interacts with ML models. Section 3 analyzes how human and machine strengths and weaknesses in generalization may affect rulemaking and adjudication. We discuss design stages related to the integration of machine and human decision-making that have received little attention in policy debates and emphasize the importance of these stages to a decision system’s ultimate ability to generalize to real-world cases. In Section 4, we summarize how generalizability concerns should affect the design and implementation of automated decision tools.
Business Purpose and the Objective of the Corporation

Edward B. Rock

There is evidence that purpose-driven businesses outperform competitors. A traditional business planner’s question that arises in response to this evidence - namely, which enterprise form is best suited to a purpose-driven business? - contains deep conceptual insights. In this chapter, I explore the business planner’s question in order to draw a sharp conceptual distinction between “business purpose” and “the objective of the corporation.” “Business purpose” should be understood to be a property of business enterprises, however they are organized. “Corporate objective,” by contrast, is best understood as a characteristic of a particular enterprise form (the general corporation) and not as a description of what actual businesses do on a day-to-day basis. Confusing these two concepts under the heading “corporate purpose” limits our ability to understand what sort of organizational form is best suited to a particular enterprise, leads to confusion in the management debates over how to build successful businesses and the political debates over the social role and obligations of large scale business enterprises. In particular, purpose driven businesses are consistent with, and often may be effectively accomplished in, more than one enterprise form, including a corporate form whose objective is promoting shareholder value, depending on the channel by means of which purpose leads to performance.
Courts, Strategic Litigation, and Social Change

Diana Rodríguez-Franco and César Rodríguez-Garavito

This chapter analyses the impact of institutional adjudication by focusing on the work of the Colombian Constitutional Court. Drawing on an extended case study of the implementation of Judgment T-025 of 2004 (T25) concerning internally displaced persons, it contributes to unpacking the black box of implementation and the impact of structural rulings on the fulfilment of socio-economic rights and social change more broadly. Methodologically, T25 constitutes what Goertz and Mahoney call a ‘substantively important case’, that is, ‘an ideal type or well-known exemplar of a phenomenon’, which offers insights into the workings of adjudication and strategic litigation in similar cases not only in Latin America, but also in other jurisdictions such as India and South Africa, whose apex courts have taken up structural cases.
Human Rights 2030: Existential Challenges and a New Paradigm for the Field

César Rodríguez-Garavito

This chapter proposes disruptive interventions in human rights practice that address the existential challenges to the field: a more collaborative mode of operation, greater sense of time (both long term and short term), and heightened attention to narratives, emotions, and frames capable of connecting with larger constituencies and other social justice movements. The traditional paradigm of human rights is inadequate to deal with the simultaneity, speed, and depth of the ecological, technological, geopolitical, and socio-economic challenges of the 2020s. Against the despair of critics who announce the ‘endtimes’ of human rights and the defensiveness of traditional advocates who double down on conventional tactics, this chapter proposes ideas and strategies for the next decade that draw on lessons from other fields of knowledge and practice.
Privacy and Knowledge Commons

Madelyn Rose Sanfilippo, Brett M. Frischmann, and Katherine J. Strandburg

Conceptualizing privacy as information flow rules-in-use constructed within a commons governance arrangement, we adapt the Governing Knowledge Commons (GKC) framework to study the formal and informal governance of information flows. We incorporate Helen Nissenbaum's “privacy as contextual integrity” approach, defining privacy in terms of contextually appropriate flows of personal information. While Nissenbaum's framework treats contextual norms as largely exogenous and emphasizes their normative valence, the GKC framework provides a systematic method to excavate personal information rules-in-use that actually apply in specific situations and interrogate governance mechanisms that shape rules-in-use. After discussing how the GKC framework can enrich privacy research, we explore empirical evidence for contextual integrity as governance within the GKC framework through meta-analysis of previous knowledge commons case studies, revealing three governance patterns within the observed rules-in-use for personal information flow. Our theoretical analysis provides strong justification for a new research agenda using the GKC framework to explore privacy as governance.
Public Facebook Groups for Political Activism

Madelyn Rose Sanfilippo and Katherine J. Strandburg

The rise of social media has raised questions about the vitality of privacy values and concerns about threats to privacy. The convergence of politics with social media use amplifies the privacy concerns traditionally associated with political organizing, particularly when marginalized groups and minority politics are involved. Despite the importance of these issues, there has been little empirical exploration of how privacy governs political activism and organizing in online environments. This chapter explores how privacy concerns shape political organizing on Facebook, through detailed case studies of how groups associated with March for Science, Day Without Immigrants (“DWI”), and Women’s March govern information flows. These cases address distinct issues, while operating in similar contexts and on the same timescales, allowing for the exploration of privacy in governance of personal information flows in political organizing and Facebook sub-communities. Privacy practices and concerns differed between the cases, depending on factors such as the nature of the group, the political issues it confronts, and its relationships to other organizations or movements.
Meaning and Value Across the Generations

Samuel Scheffler

This chapter argues that our relations to our successors are richer, more varied, and more complex than is sometimes recognized. Although we cannot in any straightforward sense interact or form personal relationships with people who will live long after we have died, future generations nevertheless matter greatly to us and in a variety of ways. These facts, which reflect our underappreciated historicist sensibility, must be taken into account in developing an adequate theory of intergenerational ethics. They are also facts of great motivational significance. To ensure the survival of humanity, sufficient numbers of people must be strongly and stably motivated to solve the problems that threaten future generations, and people’s sense of moral obligation may not, by itself, be sufficiently robust or reliable to provide all the necessary motivational support. So one challenge we face, in seeking to address problems like climate change and nuclear proliferation, is to overcome this potentially disabling motivational deficit. Yet once one appreciates the complexity of our attitudes toward future generations, one can see that we have a variety of reasons for caring about the fate of our successors. These reasons provide additional motivational resources that may complement and cooperate with our distinctively moral motivations for addressing threats to future generations.
Temporal Neutrality and the Bias Toward the Future

Samuel Scheffler

The conviction that rationality requires an equal concern for all parts of one’s life marks a rare point of agreement among leading Kantian and utilitarian philosophers. John Rawls disagrees with Henry Sidgwick about many things, but the rationality of temporal neutrality is not one of them. In A Theory of Justice, Rawls makes his agreement with Sidgwick on this point explicit. He writes: “In the case of an individual the avoidance of pure time preference is a feature of the rational. As Sidgwick maintains, rationality implies an impartial concern for all parts of our life. The mere difference of location in time, of something’s being earlier or later, is not in itself a rational ground for having more or less regard for it. Of course, a present or near future advantage may be counted more heavily on account of its greater certainty or probability, and we should take into consideration how our situation and capacity for particular enjoyments will change. But none of these things justifies our preferring a lesser present to a greater future good simply because of its nearer temporal position.” Sidgwick, for his part, thinks that the principle “of impartial concern for all parts of our conscious life,” as he calls it, represents a commonsense consensus. He says that an “equal and impartial concern for all parts of one’s conscious life is perhaps the most prominent element in the common notion of the rational—as opposed to the merely impulsive—pursuit of pleasure.” On this last point, at least, Sidgwick was almost certainly mistaken. The principle of impartial concern may sound commonsensical, but most of us have robust preferences that are inconsistent with it. That is one lesson of Derek Parfit’s discussion of temporal bias in Reasons and Persons.
Punitive Damages Transformed into Societal Damages

Catherine M. Sharkey

Whether termed civil penalties or statutory multiplied damages, ‘supra-compensatory’ damages are of increasing theoretical and practical interest not only in the United States, but also abroad, notably in France and Australia. Notwithstanding criticisms directed at the controversial remedy of punitive damages and more generally at the notion of punishment within civil law, there is a growing recognition that some form of supra-compensatory remedy may be necessary to deter certain forms of conduct on the part of actors, especially corporations. Around the world, ‘supra-compensatory’ damages seemingly arise phoenix-like from the ash heap of increasingly maligned ‘punitive’ damages. There is a general consensus that punitive damages are intended ‘to punish and to deter’. But this consensus masks deep and significant disagreements in terms of whether these purposes are, or should be, one and the same—namely retributive punishment whose corollary effectuates deterrence—or instead separable, with deterrence holding its own as a non-retributive purpose distinct from punishment. Courts and commentators typically use the language of retributive punishment when describing the aims of punitive damages and the relevant features of the remedy. But at the same time, there is increasing recognition that the separate aim of deterrence is often at play, especially in situations where the defendant’s conduct has caused widespread societal harm. Courts and commentators struggle because of this alleged mismatch—namely, the awkward fit between the retributive punishment connotations of ‘punitive’ damages to serve societal deterrence purposes. The struggle is two-fold. First, punitive damages seem especially troubling because notions of retributive punishment, common in criminal law, seem wholly out of place in the civil sphere. For this reason, when courts award punitive damages they are inclined to place various limitations on the remedy, with the goal of avoiding ‘disproportionate punishment’. Second, notions of societal deterrence seem out of place in private law focused on bilateral interactions between the parties involved in the litigation. The notion of supra-compensatory damages for societal deterrence purposes injects a public regulatory purpose into private law. This dimension is significant where there are third-party effects or externalised harms to others stemming from bilateral interactions between defendants and plaintiffs. And it is also significant with respect to corporate wrongdoing. Statutory damages recognise this public interest element; common law courts have experienced more difficulty fashioning remedies accordingly. My aim in this chapter is to interrogate what courts are saying—typically using the language of retributive punishment—when they might actually be doing something else—namely, effectuating societal deterrence. As a descriptive matter, I demonstrate that embedded within punitive damages is a component of damages designed to deter the tortfeasor. But my aim is also normative and aspirational – namely, what should courts be doing to effectuate societal deterrence? Building on prior work, I explore various statutory and judicial mechanisms that could transform punitive damages into societal damages. I consider whether the case for conceptualising punitive damages as a societal remedy is especially compelling in certain realms characterised by statutorily defined violations, such as in the consumer protection realm. Moreover, I explore how a reconceptualization of punitive damages as a societal remedy could have far-reaching effects both in terms of the evolution of US doctrine, but also influencing law reform efforts in various other countries. Sections II and III lay the necessary conceptual foundation by, first, disaggregating punitive damages by functional purpose and, second, setting forth theoretical constructs and practical factors relevant for achieving societal deterrence. Once the societal deterrence goal is acknowledged, however, the spectre of ‘windfall’ gains to the plaintiff looms large. It would be sheer coincidence if the amount needed to deter the defendant exactly equaled the amount of the plaintiff’s losses. Section IV (the heart of the chapter) presents societal damages funds—remedial funds created alternately by statute, common law courts, or private parties effectuating settlements—as an apt response to the injection of the public societal deterrence purpose within the framework of a private civil lawsuit. Finally, section V concludes by suggesting the far-reaching implications for debates regarding constitutional excessiveness review, insurability and vicarious liability for punitive damages, once punitive damages are transformed (in whole or in part) into societal damages.
Regulatory and Medical Aspects of DTC Genetic Testing

Catherine M. Sharkey, Xiaohan Wu, Michael F. Walsh, and Kenneth Offit

The recent FDA marketing authorizations granted for testing for mutations associated with hereditary breast and colon cancer, as well as pharmacogenomic susceptibilities, provide an opportunity to re-examine the medical as well as regulatory underpinnings of DTC genetic testing. In this chapter, we first examine the historical emergence of enabling technologies that have provided for the availability of DNA sequence information on a broad scale, the efforts by the medical community to incorporate these advances into models of “precision” or “personalized” medicine, and the risks and benefits of offering access to DNA germline sequence analysis outside of the traditional medical model. We then turn to the current and proposed regulatory schemes to provide oversight over DTC genetic testing, with a focus on the role of the FDA as an information regulator and guardian of public health and safety.
Foreword

Bryan A. Stevenson

Chasing Me to My Grave presents the late artist Winfred Rembert's breathtaking body of work alongside his story, as told to Tufts Philosopher Erin I. Kelly. Rembert grew up in a family of Georgia field laborers, joined the Civil Rights Movement as a teenager, survived a near-lynching at the hands of law enforcement, and spent seven years on chain gangs. There he learned the leather tooling skills that became the bedrock of his autobiographical paintings. Years later, encouraged by his wife, Patsy, Rembert brought his past to vibrant life in scenes of joy and terror, from the promise of southern Black commerce to the brutality of chain gang labor. Vivid, confrontational, revelatory, and complex, Chasing Me to My Grave is a searing memoir in prose and painted leather that celebrates Black life and summons readers to confront painful and urgent realities at the heart of American society.
Foreword

Bryan A. Stevenson

The inspiring story of activist and poet Ian Manuel, who at the age of fourteen was sentenced to life in prison. He survived eighteen years in solitary confinement—through his own determination and dedication to art—until he was freed as part of an incredible crusade by the Equal Justice Initiative. The United States is the only country in the world that sentences thirteen- and fourteen-year-old offenders, mostly youth of color, to life in prison without parole. In 1991, Ian Manuel, then fourteen, was sentenced to life without parole for a non-homicide crime. In a botched mugging attempt with some older boys, he shot a young white mother of two in the face. But as Bryan Stevenson, attorney and executive director of the Equal Justice Initiative, has insisted, none of us should be judged by only the worst thing we have ever done. Capturing the fullness of his humanity, here is Manuel’s powerful testimony of growing up homeless in a neighborhood riddled with poverty, gang violence, and drug abuse—and of his efforts to rise above his circumstances, only to find himself, partly through his own actions, imprisoned for two-thirds of his life, eighteen years of which were spent in solitary confinement. Here is the story of how he endured the savagery of the United States prison system, and how his victim, an extraordinary woman, forgave him and bravely advocated for his freedom, which was achieved by an Equal Justice Initiative push to address the barbarism of our judicial system and bring about “just mercy.” Full of unexpected twists and turns as it describes a struggle for redemption, My Time Will Come is a paean to the capacity of the human will to transcend adversity through determination and art—in Ian Manuel’s case, through his dedication to writing poetry.
Adjudicating with Inscrutable Decision Rules

Katherine J. Strandburg

Experts from disciplines that range from computer science to philosophy consider the challenges of building AI systems that humans can trust. Artificial intelligence-based algorithms now marshal an astonishing range of our daily activities, from driving a car ("turn left in 400 yards") to making a purchase ("products recommended for you"). How can we design AI technologies that humans can trust, especially in such areas of application as law enforcement and the recruitment and hiring process? In this volume, experts from a range of disciplines discuss the ethical and social implications of the proliferation of AI systems, considering bias, transparency, and other issues. The contributors, offering perspectives from computer science, engineering, law, and philosophy, first lay out the terms of the discussion, considering the "ethical debts" of AI systems, the evolution of the AI field, and the problems of trust and trustworthiness in the context of AI. They go on to discuss specific ethical issues and present case studies of such applications as medicine and robotics, inviting us to shift the focus from the perspective of a "human-centered AI" to that of an "AI-decentered humanity." Finally, they consider the future of AI, arguing that, as we move toward a hybrid society of cohabiting humans and machines, AI technologies can become humanity's allies.
The Rule of Law as an Essentially Contested Concept

Jeremy Waldron

That a concept in common use, such as the rule of law, may be called essentially contested is not a criticism of that concept. Quite the contrary: “essentially contested” is a theoretical designation that draws attention to the way in which arguments about the meaning of a given concept contribute to our understanding and evaluation of the systems, practices, and actions to which the concept is applied. It is true that some conceptual contestation just bogs us down in confusion. But not always. The philosopher who can claim to have been the first to draw essential contestability to our attention—W. B. Gallie—cited the concept of democracy as one of his examples and said that a key question to ask was whether “continuous competition for acknowledgement between rival uses of the popular concept of democracy seems likely to lead to an optimum development of the vague aims and confused achievements of the democratic tradition?” If the answer is “Yes,” then democracy is an essentially contested concept and we should not despair of its use just because there is no agreement about definitions. So it is also, we can argue, with the rule of law. There are many different definitions of the rule of law and none of them can claim to be canonical. But contestation between these rival conceptions works to enrich rather than impoverish our understanding of the heritage that has been associated over the centuries with legal and political uses of the rule of law. We are in a better position to deploy the rule of law as a political ideal than we would have been had it come to us with a single uncontested definition. It is worth mentioning this at the outset because the idea of an essentially contested concept has sometimes been understood pessimistically, as an imperfection that takes us in the direction of relativism. “Essentially contested” may be taken to mean “very, very contested”—as though “essentially” were just an intensifier—a characterization that is supposed to steer clear thinkers away from the concept in question. Hopefully, we can show that this understanding is a mistake, and that drawing attention to the “essential contestedness” of the rule of law is not a reason for condemning the concept, but a way of showing how the heritage of disputation associated with it enriches and promotes some or all of the purposes for which the rule of law is cited in legal and political argument.
A Dialogical Epilogue

Joseph H. H. Weiler

In this Dialogical Epilogue, I address a series of both general and specific questions to some of the contributors of this volume. The intent is to seek clarification on or even contest one or more propositions presented in the various chapters. In the role of a “Consul of the Readers” I enter into a conversation with the book’s authors to discuss some of the fundamental questions to which Sentenza 238/2014 gives rise and that have, at best, received only indirect answers in the various chapters. I believe answering them will enhance the value of each contribution and of the book as a whole.
Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance, in Defending Checks and Balances

Joseph H. H. Weiler

Polarization in today’s politics, pre- and post COVID, transcends nations, states regions and continents. It’s a feature of politics which, in and on itself, when played to extremes by demonizing one’s opponents, it threatens democracy itself—since it frays the demos some cohesion of which is necessary for the legitimacy of majoritarianism, one of the pillars of national democracies. Its lexical manifestation is to be found with expressions such as ‘traitors’ or ‘not real’ Americans, Italians, Israelis—take your pick and fill in the gap. It has, lamentably in my view, a spillover effect also into the academic world of scholarship. A word of criticism of, say, the European Court of Justice instantly brands you a ‘Eurosceptic’ and one of ‘them’. To speak of Universal Values, casts you as an enemy of this or that national cause. This is not to say, not at all, that one cannot bring to one’s scholarship a fully engaged normative and ethical commitment, especially in the field of law which has, or should have, at its roots a commitment to justice. But it militates against careful listening, complex reasoning and understanding and more fine grained normative judgments. Justice is oftentimes not black and white. It is particularly so when it comes to dealing with the phenomenon of Populism which has moved from the fringe to the center of politics. Trying to understand Populism is not akin to justifying it.
The Targeted Killing of Jesus Christ

Joseph H. H. Weiler

Targeted killings are usually defined as extrajudicial executions, that is, of a person—guilty or not—without a trial. But is a ‘rigged’ trial not simply another form of a targeted killing? If so, was then the crucifixion of Christ, a form of a targeted killing? Even if we take the Gospel accounts as ‘Gospel truth’ (no serious historian does), was the trial of Jesus fair? Was his conviction for blasphemy before the Sanhedrin justified? Tomes and reams have been written about this, the most famous trial and execution in the history of the West. This essay is but an appetizer to that rich literature.
The Committee on Economic, Social and Cultural Rights

Philip G. Alston

This chapter evaluates the Committee on Economic, Social and Cultural Rights. The Committee has devoted, and seems likely to continue to devote, much of its energies to streamlining and refining procedures and to laying the foundations upon which a serious effort can be made to promote respect for economic, social and cultural rights. In many respects, the Committee has confronted problems which are common to all of the treaty bodies. In other respects, however, the challenges that confront it and the context in which it must work are significantly different from those of the other committees. Among the many factors that tend to distinguish its task are: the lack of conceptual clarity of many of the norms reflected in the Covenant on Economic, Social and Cultural Rights; the ambivalence of most governments towards economic, social and cultural rights; and the absence of national institutions specifically committed to the promotion of economic rights qua rights.
Introduction: Appraising the United Nations Human Rights Regime

Philip G. Alston and Frédéric Mégret

This introductory chapter provides an overview of the UN rights regime, which has changed dramatically in almost every respect. In normative terms, major new instruments have been adopted addressing the situation of persons with disabilities, disappearances, indigenous peoples, and many other groups, and the rights of LGBTI persons are now squarely on the agenda from which they were then almost entirely absent. In terms of staff, the relatively small Center for Human Rights has been replaced by an Office of the High Commissioner for Human Rights. These dynamics illustrate the extent to which the place of human rights within the broader constellation of global governance is susceptible to constant change. The chapter then considers what is, or should be, involved in the process of evaluating or appraising the effectiveness of the UN human rights regime as a whole and of individual human rights organs.
Epilogue: 'Convergence' Is a Many-Splendored Thing

José E. Alvarez

The author reflects on the conclusions of the contributors to the edited volume and, based on his prior research, provides his own perspective on the main topic. His prior analysis of 395 ISDS rulings—and how they reference WTO law and European human rights law—throws cold water on the proposition that the trade and investment regimes, which some see as wrongly separated at birth, are converging around substantive common principles, standards or rules. Firstly, if significant trade-investment law convergence exists, it is not occurring through explicit reliance on WTO law by ISDS arbitrators. Secondly, the references to WTO law that he finds were narrow not only with respect to the numbers of IIAs involved; they were narrow with respect to the kinds of issues on which trade law was deemed relevant. The author furthermore acknowledges the limitations of citation studies, such as those conducted by him, as the two regimes may engage in other ways, apart from what happens at the final public stage of formal dispute settlement.
An Unscientific Postscript

Kwame Anthony Appiah

I am three years older than Ghana, where I grew up, and my father was very active in the movements that brought us our independence. My earliest memories of him are as a parliamentarian, working in the post-independence legislature, deeply committed, as a lawyer as well as a politician, to constitutional government. And make no mistake about it, my father loved Ghana. His autobiography was subtitled The Autobiography of an African Patriot—and, although he cherished Africa, which was, as a Pan-Africanist, his patria as well, his patriotism was fundamentally Ghanaian. At its heart was a commitment to self-government with a constitution that gave us rights and made us equal under the law. In my teens, after a period as a political prisoner, he specialized in taking the government to court to secure the rights of others. Since the ﬁrst task of the state after empire was to try to expand welfare provision as well, his nationalism had the elements identiﬁed in this book as liberal: the state had to secure order for us, grant and protect our equal rights, and guarantee a basic level of education and welfare to us all. Redistributive solidarity was deﬁnitely an important part of the picture. The ‘us’ here was deﬁnitely not an ethnic ‘us’. For my father’s generation, one of the great challenges of independence was to build a united nation that nevertheless recognized and honoured our many ‘tribes’, as we called them, the various peoples the colonial state had brought together. Our diverse languages and cultural and political traditions produced a nation of enormous, often overlapping, forms of diversity. Like the other states on the Gulf of Guinea, we had many Muslims in the north, and a great diversity of Christians all over, reﬂecting the diverse missionary adventures of the region. But there was a long-established Muslim population in Kumasi, the capital of Asante, our hometown, which is in the centre of the country, as in the nation’s capital, Accra, on the coast. And there were countless shrines to hundreds of spirits in the multiple older customs of our country. We were deﬁnitely a nation of many religious traditions as well.