Faculty Chapters

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  Judicial Jurisdiction and Forum Access: The Search for Predictable Rules

  Linda J. Silberman

  Private international law in the United States is comprised of three general categories: (1) judicial jurisdiction; (2) choice of law; and (3) recognition and enforcement of judgments. The well-documented revolution in choice of law in the United States in the 1960s–70s that moved from black-letter rules to more flexible standards is in retreat. More recently, there has been a counter-revolution in private international law in the United States that is critical of that “new” regime of “standards” and is seeking to adopt more predictable rules. This counter-revolution can be seen, even if to a somewhat lesser extent, in the area of judicial jurisdiction; and these jurisdictional developments have mitigated the rampant forum shopping that often characterized the prior judicial jurisdictional regime in the United States. In this chapter, I track these jurisdictional developments generally and take up another area—internet defamation and privacy—where the Supreme Court has not yet spoken, but where I suggest that jurisdictional developments in the United States are likely to result in a more predictable and efficient system than the case law that has emerged in both the European Union and Canada.

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  Foreword

  Vincent M. Southerland

  How could a country founded on the honorable ideals of freedom and equality have so willingly embraced the evils of enslavement and oppression? America’s history of race relations is a difficult one, full of uncomfortable inconsistencies and unpleasant truths. Although the topic is sensitive, it is important to face this painful past unflinchingly—knowing this history is key to understanding today’s racial climate and working towards a more harmonious society. In Race Relations: The Struggle for Equality in America, kids ages 12 to 15 follow the evolution of race relations in America from the country’s earliest beginnings until present day. The book examines how the concept of race was constructed in the seventeenth century and how American colonists used racial differences to justify slavery, discrimination and the persecution of people of color. Through links to online primary sources such as newspaper articles, letters, poems, and songs, young readers will explore how race relations changed—and didn’t—through the eras of Reconstruction, Jim Crow, and Civil Rights, and under the presidencies of Barack Obama and Donald Trump. The book introduces students to people from four different centuries—some famous, some ordinary citizens—who took great risks to fight for freedom, equality, and social justice. It also fosters discussions of contemporary racial issues and social justice movements, including Black Lives Matters, and encourages students to consider steps they can take to help improve race relations. Race teaches students about American race relations in a fact-based way that promotes empathy and understanding. Projects such as identifying the influences that contributed to the reader’s own view of other races, writing journal entries from the perspective of student of color at a newly-integrated school in the 1960s, and investigating implicit racial bias in newspaper photographs or news articles helps students to think critically and creatively about their own position and role in society and gain a broader understanding of the world they live in. Fun facts, links to online primary sources and other supplemental material, and essential questions take readers on an exploration of the past, present, and future of race relations. Race is part of a set of four books called Inquire & Investigate Social Issues of the Twenty-First Century, which explores the social challenges that have faced our world in the past and that continue to drive us to do better in the future. Other titles in this set are Gender Identity, Feminism, and Immigration Nation. Try these critical-thinking activities: examine statistics of racial incarceration rates vs. drug-use rates; study original slave narratives; organize a social justice movement.

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  ASEAN Law, the ASEAN Way and the Role of Domestic Courts

  Joseph H. H. Weiler

  The giving of the 10 Commandments, as an historical reality or as a founding myth, is considered a momentous occasion in the history of law the importance of which transcends the cultures which are part of the Abrahamic religions—Christianity, Islam and Judaism. Little noticed, however, is the singular fact, that before Moses ascends Mount Sinai to receive the Law he has an encounter with his father-in-law, the Midianite Priest Jethro. Jethro, an icon of wisdom, advises and then instructs Moses that it is essential that a system of courts (not just one court!) be put in place a system resembling that which we find till this day in practically all civilizations—lower courts, intermediate courts and supreme courts. Grant me the singularity of this sequence of events: Courts and judges are to be put in place even before the Law is given. Singular but neither surprising nor shocking. For what is law if there are no courts to interpret it, apply it, enforce it? What are legal obligations if there are no remedies in case these obligations are breached? There are some extreme manifestations of this, ontological, relationship between law and courts. In the Common Law countries at law faculties students essentially learn the law through a study of judicial decisions, leading students to an overly court-centric view of the law. The teaching of law in Civil law countries adopts a more balanced approach putting the norms themselves, constitutions, legislation, administrative law at the core of the curriculum, but even there courts are not epiphenomenal but central to the overall understanding of law and the legal system, an indispensable component. Thus, thousands of contracts, whether simple (any purchase of a car of that matter a loaf of bread or a bowl of rice) or complex (mega mergers of multinationals), are made day in and day out. Most are executed faithfully. Only a tiny fraction of these will ever end up in court. But it is the existence of courts, always there, promising and menacing at the same time, which accounts for this record of faithful compliance. I would go as far as saying, given the human condition, and aware that not all legal philosophers will agree but confident that all practicing lawyers and judges will, that to imagine law without courts, is to imagine something other than law.

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  Epilogue: Sanctity as a Legal Duty: The Judeo-Christian Tradition and the Dialectic of Difference: An Examination of Four Dimensions of Jewish Prayer

  Joseph H. H. Weiler

  The idea of the so-called Judeo-Christian tradition is of relatively recent origin and it stands in contrast to millennia of mutual distrust between the two faiths, fuelled by mutually exclusive self-definitions and self-understandings. Interestingly, it can be argued that theological mutual exclusion was originally driven by sociological factors attendant on the emergence of Christianity and Rabbinical Judaism more or less at the same time and the rivalry between them. The current conception of a common ‘Judeo-Christian tradition’ has come into favour for, arguably, similar sociological factors, notably a post-Holocaust reckoning and a ‘politically correct’ atmosphere. The idea is an expression of a very profound and sincere search for mutual accommodation between Christianity and Judaism, which is the outcome of a common humbling experience on the part of Christians and Jews. Make no mistake—this is not an argument of symmetry, sociological or theological. Sociologically, Christians do not have to contend with centuries of Jewish persecution, or rather their experience of it is as persecutors rather than victims. Theologically, too, as Jean Paul II famously explained, the Christian relationship to Judaism is intrinsic, not extrinsic. That cannot be said of Judaism. It does not experience theologically Christianity as intrinsic. However, partly through the effects of what we used to call Western-liberal democracies, observant Christians and Jews find themselves often in the same minority camp struggling within an increasingly secular society. The notion of a ‘Judeo-Christian tradition’ is a way of expressing that commonality. Ironically, the whole idea of a Judeo-Christian tradition sends Jews and Christians in quest of those elements of a tradition could be said to be central to Western civilisation, at the very time the God Jews and Christians believe in has become a matter of indifference to that civilisation. What content should one give to this notion of the Judeo-Christian tradition? The content may not be allowed to slide into syncretism or to mask the essential and profound chasm that remains between the two faiths. Understandably this chasm must continue to exist because the faiths make mutually exclusive truth claims about the most profound metaphysical issues that affect us. Some would say that we believe in the same God, the God of Abraham, Isaac and Jacob. I, however, do not believe that that tenet can provide the essential content of the so-called Judeo-Christian tradition, because it poses a theologically very complicated and delicate question which yields answers that both unite and separate. The search merely for a common denominator as the meaning of the Judeo-Christian tradition is in error. To articulate what is the Judeo-Christian tradition, we should not only refer to shared elements, but also to distinct elements that are only shared in the peculiar sense of a shared dialectic of mutual opposition. That art of dialectical opposition is essential to the two faiths and it is the impact of this dialectic on our general culture that constitutes what is most significant in their ‘shared’ tradition.

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  The Authority of European Law: Do We Still Believe in It?

  Joseph H. H. Weiler

  This book analyses the supposed erosion of the authority of EU law from various perspectives: legislation, jurisprudence of national supreme and constitutional courts, enforcement of Single Market rules, of EMU rules and of the rule of law. It discusses the interdependence between the perceived legitimacy of the European project and respect for the authority of EU law.

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  The States’ Upcoming Choice: Move Ahead All Together, Some Members Only or Alone?

  Joseph H. H. Weiler and Johann Justus Vasel

  All together, some members only or alone? This is the choice that Member States must address. Surely it all depends on the direction we choose to move ahead. But if moving all together is not obvious, moving ahead, too, is not without its problems. Euro speak has always had a messianic fervour to it: ‘An ever closer Union’ are the iconic words of the Treaties. But if it is to be ever closer it must always be moving, closer and closer (even when it gets hot and sticky) to some illusive promised land of integration, with that facile and well-worn example of the bicycle which falls if its stops moving. But why should the question of all together or only some be tied to that problematic Drang nach Elisium? What about the option of staying (partnership-wise) all together, but also staying (destination-wise) exactly where we are, content with what we have created and, perhaps, not risking it with ever new ventures and expanding frontiers, geographical, political or functional. To complexify even further, one has to add the manner in which we move that destination: The manner in which Europe is governed—in what areas does a State retain its veto, to give but one example or how adept will the Union be in respecting the democratic traditions of the Member States to give another—will also determine whether a Member State wants to move all together, only with some, or maybe even exit—as its only option if it feels an unacceptable loss of voice. In this chapter we will try to untangle some of these complexities exploring in depth the ‘alone-exit’ option. It is critical in our view to address two ‘alone’ narratives which are current in Europe: the obvious one which is exit from the European Union (EU)—à la Brexit. But no less important is the interconnected narrative of exit from a Member State à la Catalonia, Scotland and others. They are interconnected in two ways: first, it is the prospect of finding a safe haven within the EU which emboldens the call for secession from within Member States. Secondly, and even more importantly, there is a common mindset to these two narratives of aloneness which requires exploration. Both are a problem and a challenge to Europe, the second even more than the first. We will then turn to the ‘all together’ and the ‘some members only’ options. Our thesis here is simple enough: this is a false dichotomy. At least since the 1970s, Europe has been practicing in myriad ways, big and small, a combination of ‘all together’ and ‘some members only’. It is but another manifestation of ‘united in diversity’. There is no going back on this combined model. Our preferred term for such is differentiated integration. It is part of Europe’s very ontology. It is a complex matrix with differentiation occurring along axes of time, space and subject matter. But central to our analysis is the differentiation between ‘in Treaty’ differentiated integration—through the mechanism of enhanced cooperation, and ‘ex Treaty’ differentiated integration—through ad hoc arrangements, international treaties and some mechanisms which straddle both in and ex. We will highlight two features of this empirical matrix. First, a paradox whereby the ‘in Treaty’ enhanced cooperation though functional has been marginal, whereas the ‘ex Treaty’ model has captured the centre stage in importance—think about the Fiscal Compact—even if of dubious legality. Secondly, the status quo even if functional and pragmatic is messy and contentious and often leaves a bitter taste of a two-class Europe rather than a two-speed Europe.

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  Does Conviction Matter? The Reputational and Collateral Effects of Corporate Crime

  Cindy R. Alexander and Jennifer H. Arlen

  Critics of deferred prosecution agreements claim they undermine deterrence by lowering the cost to firms from reputational damage or stigma resulting from a criminal settlement. We evaluate the claim that the choice of a DPA, instead of a guilty plea, reduces the cost to corporations of reputational damage from a criminal settlement, holding constant other factors such as the identity of the offender and offense magnitude. Criminal settlements cause firms to sustain costs from reputational damage when they cause the release of information that leads interested outsiders—e.g., customers and suppliers—to anticipate an enhanced risk of harm from future dealings with the firm. DPAs could lower the cost of reputational damage if the use of a DPA, instead of a plea, would lead interested outsiders to anticipate a lesser risk of harm from future misconduct, holding all else constant. We consider and reject three potential channels through which the choice of settlement form could plausibly alter the qualitative information about the risk of future misconduct that reaches interested outsiders: direct revelation, prosecutorial selection, and managerial selection. We then turn to the effect of DPAs on the ability of federal agencies to protect their interests by excluding or delicensing firms whose criminal settlement reveals they present an enhanced risk of causing future harm to the agencies’ interests that is best addressed by exclusion instead of mandated reforms. We conclude that agencies may be better able to serve their interests as interested outsiders when prosecutors employ DPAs, rather than pleas, because DPAs leave many agencies free to use permissive exclusion and thus enable them to exclude when, but only when, appropriate.

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  Legal Perspectives

  José E. Alvarez

  This chapter surveys how international legal scholars have catalogued and sought to explain the legal impact of the UN even though its political and judicial organs have not been delegated the power to make law. It explains how the UN attempts to adhere to, but also challenges, the traditional sources of international law—treaties, custom, and general principles—contained in the Statute of the International Court of Justice. It enumerates how the turn to UN system organizations—amidst newly empowered non-state actors, increasing resort to ‘soft’ or ‘informal’ norms, and recourse to institutionalized processes—have led to distinct legal frameworks such as process or deliberative theories, interdisciplinary ‘law and’ approaches, feminist and ‘Third World’ critiques, and scholarly work that renews attention to or revises legal positivism.

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  The Forest of Reasons

  Kwame Anthony Appiah

  As business decisions and actions spill over into society in ways that arouse our concern, it is useful to explore how philosophy might offer an alternative perspective to consequentialism. This chapter reviews the conventional approach and the risks of “maximizing.” It submits that the narrowly consequential approach provides us with practical reasons for action but neglects normative or moral reasoning. Reasons for doing might be based on rational choice, but reasons for being (existential reasons) and feeling (sentimental reasons) are guided by moral choice. That these last two may not be “commensurable” does not make them less important. Treating everything as tradable with everything else may be bad for the soul and society. We have moral reasons to feel and to be certain ways, as well as to do certain things. It is time to pay greater heed to Jim March’s long-standing challenge to consequentialist decision theories.

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  Foreword: The Important Role of the World Bank’s Sanctions Regime in Deterring Foreign Corruption

  Jennifer H. Arlen

  This book focuses on the World Bank’s sanctions system, which is an innovative instrument of global governance implemented by the leading multilateral development bank in order to impose penalties on legal entities and individuals that are involved in Bank-financed projects. Although similar regimes have also been implemented by other regional multilateral development banks, the World Bank’s legal framework is currently the most comprehensive one. The book offers a rich and detailed analysis of the sanctions system, presenting an in-depth examination of all the phases of its procedure with a special focus on key aspects such as the criteria for assigning liability to legal entities and corporate groups, as well as the World Bank’s jurisdictional reach over non-contractors. The book also explores the compatibility between the legal framework implemented by the Bank and the rule of law, the role of precedents, and the level of due process. It highlights the fact that the sanctions system is currently characterized by a lack of legal guarantees, and that there are compelling reasons for supporting the argument that due process safeguards should be applied to it in their entirety. To that end, the book conducts a thorough analysis of specific procedural aspects such as the right to a hearing, the right to evidence disclosure, the time limit regime, the standard of proof and shift of the burden of proof, the evidential value of a party’s silence, and the consistency and predictability of the World Bank’s sentencing practice. The study is conducted on the basis of a detailed and painstaking examination of the most relevant decisions taken by the Sanctions Board, providing the first-ever commentary on the World Bank’s case law.

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  The Many Stories of In re Gault

  Zawadi Baharanyi and Randy A. Hertz

  A book celebrating the fiftieth anniversary of In re Gault naturally begins with a description of the case itself. In re Gault reached the United States Supreme Court in the heyday of the Warren Court. In delinquency cases, as in criminal cases, the accused has the right to “confrontation and sworn testimony by witnesses available for cross-examination”. Harry Blackmun's blithe confidence in the wisdom and ideal behavior of juvenile court judges is particularly baffling given the facts of the cases that were before the Court in McKeiver v. Pennsylvania. The North Carolina case joined with McKeiver's in the United States Supreme Court, In re Barbara Burrus, was an even starker and graver example of judicial bias and impropriety. Victory in the Supreme Court came only after Jerry Gault spent more than two years at the Arizona Industrial School for Boys, a reformatory known as “desert Devil's Island”.

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  Design Protection

  Barton C. Beebe

  This chapter surveys the legal protection of industrial designs, understood as the protection of the appearance of articles of manufacture. It discusses the definition of “design” according to both the European Union (EU) and the United States (US). It examines the international instruments that form the foundation of industrial design law, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention, and the Berne Convention, among others. It then focuses on the various areas of intellectual property (IP) law that make up design law, including sui generis design protection law, patent law, copyright law, and trademark law among others, with particular attention on these aspects of design law as they feature in the US and the EU.

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  Reforming Lobbying

  Maggie Blackhawk

  Few would deny that the principle of equal participation in government is a cornerstone of American democracy. Even fewer would deny that American democracy has lost that cornerstone. Yet building political will toward reform that would ensure equal participation, while passing constitutional muster, has proved a chimera. Historically, two distinct, but complementary mechanisms aimed to facilitate equal participation in the lawmaking process: the mechanism of the vote and the mechanism of the petition. On the one hand, the electoral process provided the means by which a majority would select the membership of our lawmaking institutions. On the other, the petition process provided the means by which individuals and minorities could participate equally, publicly, and formally in the lawmaking process. Both of these mechanisms are in need of reform. However, while most reform proposals focus on campaign finance reform to protect the electoral process, very few proposals focus on how we regulate access to and participation in the lawmaking process. This chapter sketches a preliminary two-step reform proposal to ensure equal access to participation in the lawmaking process. As I will show, fundamental reform of our lobbying system would allow us, under our current free speech doctrine, to reform our campaign finance system fundamentally as well. Most relevant to this discussion, regulating and formalizing the way that we access lawmakers and the lawmaking process could allow us to reform campaign finance in innovative ways, including by severing the tie between our current lobbying system and our campaign finance system. Part I of this chapter charts the recent movement to reform campaign finance by reforming lobbying and identifies a critical flaw in these efforts. Part II then outlines a two-step reform proposal that avoids this earlier flaw. Step one proposes that we institutionalize a formal petition process that would largely displace our current lobbying system as the primary means by which the public would engage with Congress. Step two then proposes to regulate campaign finance activities that disrupt that formal petition process—similar to regulations upheld by the Court protecting legislative ethics provisions, legislative procedures, and the mechanics of the voting process. Finally, in Part III, I describe how the two-step reform proposal would pass constitutional muster under our current First Amendment doctrine.

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  International Organizations and the Technologies of Governance

  Hilary Charlesworth, Sally Engle Merry, B. S. Chimni, Javier Couso, Terence Halliday, Outi Korhonen, Vivian Lin, Eden Medina, Leslye Obiora, César Rodríguez-Garavito, Gregory Shaffer, Rene Urueña, and Ruth Okediji

  By “international organizations,” we refer to organizations beyond a single state that engage in transnational or global governance. This chapter addresses five types of international organizations: intergovernmental organizations whose members are states; international non-state organizations that directly address transnational or global policy; international civil society organizations; international commercial organizations; and hybrid public–private international organizations. The chapter’s case studies focus particularly on intergovernmental organizations, but in interaction with other organizations as they address issues of human rights; refugees and migration; women’s rights; health; intellectual property; conflict, security, and terrorism; and climate change. In assessing international organizations, the chapter begins by examining the relationship of these organizations to global order and disorder. While robust empirical research is limited on norm-making and monitoring, it is clear that a handful of countries in the Global North dominate intergovernmental organizations. This chapter describes how international and global governance operates through varieties of governance technologies. These technologies vary in how fully they engage transnational, national, and local actors, state and non-state, in their design and implementation. Technologies of governance have been criticized because they have few mechanisms for tapping into creativity and tacit knowledge at local levels and they implicitly vest expertise and normative authority in the Global North and centers of geopolitics or finance. In so doing, they mute the voices of many domestic actors. Our case studies demonstrate both the promise and problems of international organizations in enhancing human flourishing. They reveal the complexities of the engagement between the Global North and Global South and local and global processes. For transnational governance to produce social progress it will need to resolve difficulties of coordination, funding, accountability, and adaptability of governance technologies.

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  Lead Plaintiffs and Their Lawyers: Mission Accomplished, or More to Be Done?

  Stephen J. Choi and A. C. Pritchard

  This chapter evaluates the effectiveness of the lead plaintiff provisions in the Private Securities Litigation Reform Act. The empirical record shows that, in substantial measure, the PSLRA’s lead plaintiff provision has succeeded. Institutional investors have emerged as an important force in securities class actions. However, the competition among lawyers to serve as lead counsel has not been driven exclusively by price and quality of representation. The larger institutional investors that have most frequently agreed to serve as lead plaintiffs in securities class actions have been government-sponsored pension funds. The political influence over these funds raises suspicion that at least some class action law firms are buying lead counsel status with campaign contributions. This chapter reviews the empirical record and suggests specific reforms that might promote additional transparency and competition on price, as well as additional requirements for lead plaintiffs to further enhance the screening role played by the PSLRA.

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  Securities Law and Its Enforcers

  Stephen J. Choi and A. C. Pritchard

  This chapter reviews the existing empirical literature relating to government enforcement of the securities laws, particularly by the Securities and Exchange Commission (SEC), including comparative work, assessment of the impact of enforcement, and analysis of enforcement patterns. It also identifies particularly promising areas for future research. Little work has been done to date exploring the incentives faced by attorneys who conduct investigations on behalf of the SEC and how those incentives shape enforcement decisions. This chapter offers preliminary evidence on the career paths of SEC lawyers and how those career choices might influence the enforcement actions brought by the SEC.

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  Foreword

  Jerome A. Cohen

  This book is destined to be important. As I write these words, experts on China, Sino-American relations and international politics are again engaging in another of their recurrent debates over the prospect that the People’s Republic of China (PRC) will in the foreseeable future use coercion to subdue Taiwan and reintegrate it into Mainland China. Despite immediate preoccupation with the threat of North Korean nuclear missiles and the possibilities of armed clashes in the South or East China Sea, many observers recognize that the gravest challenge to political stability in East Asia during the next decade may focus on the long-festering issue of the status of Taiwan. This is why Professor Frank Chiang of Fordham University School of Law, an able and experienced American legal scholar, originally from Taiwan, has devoted himself to giving us a fresh review and analysis of the history and the complexities of the international legal aspects of this crucial problem. Law may not turn out to be the decisive factor determining Taiwan’s future, but, because of its intimate connection with public opinion as well as elite perceptions, it will surely be an influential factor. “Lawfare”—legal warfare—will be mobilized by the contending parties in an effort to justify, and summon domestic and international support for, its actions. Each of the contenders, of course, will claim that international law is on its side.

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  Multijurisdictional Enforcement Games: The Case of Anti-Bribery Law

  Kevin E. Davis

  Economic analyses of law enforcement generally focus on situations in which law is enforced by a single public agency, in a single jurisdiction, which faithfully follows its announced enforcement strategy. This does not reflect the reality of enforcement aimed at corporate crime, which commonly involves multiple agencies, often based in different jurisdictions, and which adjust their enforcement strategy in response to prior misconduct. This chapter will discuss the analysis of multijurisdictional law enforcement, with particular reference to cases concerning foreign bribery. The premise is that this kind of interaction can be modelled as a dynamic multi-player game in which the players include both enforcement agencies and firms. In principle, this kind of analysis can be used to formulate testable hypotheses about outcomes of interactions between regulators and firms. Unfortunately, opportunities to evaluate these kinds of hypotheses empirically are limited because many aspects of the structure of the game are difficult to observe, and firms’ misconduct and regulators’ enforcement activities typically are only observable when they result in formal sanctions. The chapter concludes with a discussion of some of the challenges inherent in normative analysis of the outcomes of multi-jurisdictional law enforcement games.

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  How British was the Brexit Vote?

  Gráinne de Búrca

  Understandably, the Brexit debate moved quickly from an initial quest to identify causes of discontent and errors of policy and strategy to focus on the mechanics and the terms of exit as well as on the likely terms of future UK engagement with the EU. But an understanding of the causes of Brexit continues to be of central importance, both for intrinsic reasons as well as for the practical purpose of considering what kind of response, or reform, on the part of the EU—and just as importantly on the part of the UK—may be appropriate. An appreciation of the distinctive and local features of the vote as a reflection of the UK’s relationship with the EU, as well as the features that it seems to share with current developments across other democracies worldwide, is therefore worth seeking. Hence this contribution steps back again from the immediacy of the current issues to reflect on the extent to which the vote should be understood primarily as a British decision, caused by persistent concerns and long-standing sentiment within the UK body politic, as well as interrogating more closely the role played by the ‘populist wave’ sweeping much of the Western world. A dominant focus in the aftermath of the referendum has been on analysing and situating the Brexit vote as an integral part of a wider set of political developments across the globe, namely the rise in nationalist sentiment and illiberal authoritarianism, and the backlash against the perceived consequences of economic globalisation and migration, somewhat neglecting the distinctive relationship the UK has had with the EU. Much of the commentary has also emphasised the similarities between the impetus for the Brexit vote and the forces that propelled Donald Trump to electoral victory in the US. The two events have been grouped together as populist political events which expressed and reflected (i) a reaction against immigration, (ii) concern about economic insecurity, (iii) a rejection of internationalism and transnationalism, (iv) a return to inward-looking (economic) nationalism and (v) a rise in authoritarian and illiberal sentiment. This approach to understanding and explaining Brexit stresses the similarities between the issues that were salient during the Brexit campaign and which seem to have animated the vote to leave the EU and those that are fuelling political developments within other democracies, not only in the US election but also across much of Europe at present.

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  In Praise of an Incentive-Based Theory of Intellectual Property Protection

  Rochelle C. Dreyfuss

  “The Congress shall have the Power. . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .” With knowledge production becoming increasingly significant in the economy, more attention needs to be paid to the impact of intellectual property rights on human rights, culture, and development. As the above quotation from the United States Constitution suggests, intellectual property rights are traditionally justified as a mechanism for generating incentives to innovate. Inherent in this instrumental rationale for creating private rights to exclude is the idea that the ultimate goal is the public good: promoting progress for the benefit of society. The law, in short, has long been premised on balance, balance among generations of innovators and between creators and those who would benefit from the works they produce. Thus, so long as the creative industries can capture enough return to recoup costs and earn a significant profit, the United States has always considered itself free to promote other public goals, such as health, education, and free expression. But in a study of successive international intellectual property instruments, including the World Trade Organization’s (WTO) TRIPS Agreement (TRIPS), free trade agreements (FTAs), and bilateral investment treaties (BITs), Susy Frankel and I concluded that the linkage of intellectual property with trade—and even more so, with investment—is triggering a reconceptualization of this fundamental principle at the international level. The quantitative approach underlying the incentive theory, which asked how much exclusivity is necessary to promote innovation, has given way to a qualitative approach, which treats intellectual property as equivalent to a commodity or an investment asset and considers any impairment of value a taking, with its effect largely calculated from the perspective of the right holder. Intriguingly, at the same time that commodification (through trade agreements) and assetization (through investment treaties) were eclipsing the incentive-based approach within the international community, the legal academy was beginning to challenge the idea that intellectual property incentives are necessary at all. Pointing, as one example, to the flourishing fashion industry, where intellectual property rights are ineffective and copying is rampant, theorists such as Chris Sprigman and Kal Raustiala argue that in many sectors there are other dynamics that can spur creativity and protect private gains from innovation. To these commentators, intellectual property rights can often be unnecessary. Thus strengthening them is largely misguided. Given these opposing challenges to the incentive-based approach, the time appears ripe to reconsider it. In Section I of this chapter, I examine the evidence on intellectual production outside standard intellectual property regimes. While it is easy to agree that considerable creativity occurs in that realm, I conclude that exclusive intellectual property rights remain important in the modern economy. In Section II I suggest, however, that a return to incentive theory would protect public-regarding values without unduly sacrificing the benefits derived from linking intellectual property with trade and investment in international agreements.

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  Intellectual Property Law: An Anatomical Overview

  Rochelle C. Dreyfuss and Justine Pila

  This chapter introduces the law of intellectual property (IP) and its treatment in the Handbook. It begins by considering the different ways and traditions of thinking about IP, the range of subject matter that IP rights protect, and the nature and scope of those rights themselves, including the variety of third-party exceptions to them. It then outlines the domestic, regional, and international laws that comprise the modern IP field, the diverse social and economic forces that motivate those laws, and the variety of actors and institutions involved in shaping them. Finally, it introduces the structure of the Handbook and summarizes each of its individual contributions. The result is an accessible overview of one of the most rich, complex, and important fields of law today, including its social and normative foundations, its emergence and development in different jurisdictions and regions, its substantive rules and principles, and its political economy.

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  The Challenging Power of Data Visualization for Human Rights Advocacy

  John Emerson, Margaret L. Satterthwaite, and Anshul Vikram Pandey

  In September 2007, The New York Times columnist Nicholas Kristof traveled with Bill Gates to Africa to look at the work the Bill & Melinda Gates Foundation was doing to fight AIDS. In an e-mail to a Times graphics editor, Kristof recalls: “while setting the trip up, it emerged that his initial interest in giving pots of money to fight disease had arisen after he and melinda read a two-part series of articles i did on third world disease in January 1997. until then, their plan had been to give money mainly to get countries wired and full of computers. bill and melinda recently reread those pieces, and said that it was the second piece in the series, about bad water and diarrhea killing millions of kids a year, that really got them thinking of public health. Great! I was really proud of this impact that my worldwide reporting and 3,500-word article had had. But then bill confessed that actually it wasn’t the article itself that had grabbed him so much—it was the graphic. It was just a two column, inside graphic, very simple, listing third world health problems and how many people they kill. but he remembered it after all those years and said that it was the single thing that got him redirected toward public health. No graphic in human history has saved so many lives in africa and asia.” Kristof’s anecdote illustrates the sometimes unexpected power of data visualization: Expressing quantitative information with visuals can lend urgency to messages and make stories more memorable. Data visualization is the “visual representation of ‘data,’ defined as information which has been abstracted in some schematic form.” The use of data visualization can strengthen human rights work when data is involved, and it does something for the promotion of human rights that other methods don’t do. Combining data and visuals allows advocates to harness the power of both statistics and narrative. Data visualization can facilitate understanding and ultimately motivate action. And within human rights research, it can help investigators and researchers draw a bigger picture from individual human rights abuses by allowing them to identify patterns that may suggest the existence of abusive policies, unlawful orders, negligence, or other forms of culpable action or inaction by decision-makers. As human rights researchers and advocates look for new ways to understand the dynamics behind human rights violations, get their messages across, and persuade target audiences, they are also expanding the epistemology of advocacy-oriented human rights research. By broadening their evidence base and using new methods, human rights advocates come to know different things—and to know the same things differently. The use of data visualization and other visual features for human rights communication and advocacy is a growing trend. A study by New York University’s Center for Human Rights and Global Justice reviewing all Human Rights Watch (HRW) and Amnesty International reports published in 2006, 2010, and 2014 revealed an increase in the use of photographs, satellite imagery, maps, charts, and graphs. In some cases, data visuals augment existing research and communications methodologies; in other cases, they represent alternative and even novel tools and analytical methods for human rights NGOs. While data visualization is a powerful tool for communication, the use of data and visualization holds exciting promise as a method of knowledge production. Human rights researchers and advocates are adding new methodologies to their toolbox, drawing on emerging technologies as well as established data analysis techniques to enhance and expand their research, communications, and advocacy. This chapter introduces ways data visualization can be used for human rights analysis, advocacy, and mobilization, and discusses some of the potential benefits and pitfalls of using data visualization in human rights work. After a brief historical review of data visualization for advocacy, we consider recent developments in the “datafication” of human rights, followed by an examination of some assumptions behind, and perils in, visualizing data for human rights advocacy. The goal of this chapter is to provide sufficient grounding for human rights researchers to engage with data visualization in a way that is as powerful, ethical, and rights-enhancing as possible.

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  Meeting the Fundamental Objections to Classical Liberalism

  Richard A. Epstein

  There is little doubt that populist movements have gained great strength in recent years. The standard explanation for the British decision to leave the European Union in June 2016 and for the United States to elect Donald Trump as its president in November of that same year both converge on one point: the massive dissatisfaction that many ordinary people have had with the progressive elites that have governed both Great Britain and the United States. The key sources of that unrest have been the sluggish performance of the economy stretching back for many years; the ever-growing size of their government bureaucracies; and the annoying sense that progressive and socialist elites act as if they are morally superior to the rest of the population, which they treat in both words and deeds, with ill-concealed disrespect, or in Hillary Clinton’s two most important words uttered in the 2016 election campaign, as “the deplorables.”

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  Smart Consequentialism: Kantian Moral Theory and the (Qualified) Defense of Capitalism

  Richard A. Epstein

  The purpose of this chapter is to offer a defense of what is broadly understood to be a capitalist economy, which for these purposes is well enough defined as “an economic and political system in which a country’s trade and industry are controlled by private owners for profit, rather than by the state.” The grounds of this defense shall be overtly consequentialist, but with this twist: I shall insist that, even though many writers purport to find ways to evaluate these systems in deontological terms, these so-called backward justifications ultimately resolve themselves into consequentialist arguments. The simple starting point for all analysis is that market capitalism cannot survive if force and fraud are allowed free sway, and that they must be controlled to make long-term investment possible. No standard deontological theory—especially Kantian theory—can justify this simple proposition in an acceptable way; rather, deontology can only succeed if it is reinterpreted, against the wishes of Kant, its leading expositor, in an explicitly consequentialist fashion. The stakes here are enormous: if notions of obligation are con-strued too narrowly, all sorts of dangerous behaviors can go without sanction. If they are construed too broadly, all sorts of legitimate competitive behaviors can be destroyed by a set of restrictive practices, in both domestic and foreign markets. The efforts to intuit the right institutional arrangements by deontic strategies, most notably by those in the Kantian tradition (which need not and do not embrace all elements of Kant’s thought), often lead to just these conceptual breakdowns.

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  The Basic Structure of Intellectual Property Law

  Richard A. Epstein

  This chapter puts forward a comprehensive framework for evaluating property regimes for both physical and intellectual property resources. It starts with an account of the trade-off between common and private property regimes, noting that the former is appropriate, as a first approximation for resources that facilitate communication and transportation, where holdout problems dominate externality constraints. But where high levels of investment are needed, and coordination problems are low, private property, as bounded by laws of trespass, nuisance and infringement now tend to dominate. There are no rules of acquisition for an open-access regime. But for private property in all its forms, the common and civil law rules of occupation avoid virtually all the complications that stem from Locke’s erroneous labor theory of acquisition. The chapter then explores the rules governing duration, exclusion, remedies, and alienation in multiple private property interests, including the major forms of intellectual property.