Faculty Chapters

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  The Turn to Justification: On the Structure and Domain of Human Rights Practice

  Mattias Kumm

  There are three puzzling structural features of global human rights adjudication that have fostered scepticism about its philosophical respectability. First, the scope of legally recognized human rights is not narrowly focused on things fundamental or basic to human existence, but extremely broad (call this the problem of rights inflation). Second, most rights may be limited by measures that meet the proportionality requirement, thereby appearing to undermine prominently made claims that rights are trumps or firewalls that have priority over competing policy concerns (call this the problem of casual override). And third, notwithstanding the claim that human rights are universal, the kind of things that can be found on lists in international, regional, or national human rights documents vary considerably between jurisdictions and instruments. And even when provisions are worded similarly, they are often interpreted differently in different states (call this the problem of variance). Yet, there is nothing pathological about a human rights practice that has such a structure. On the contrary, each of these structural features, I will argue, is connected to a distinctive moral point. Gaining a clearer understanding of each of these moral points and elucidating how they relate to one another is an important step towards the development of a more comprehensive theory of human rights. These three structural features work together to establish a practice, I will argue, that reflects a particular conception of law and politics: Politics is the practice of rights-based justice seeking among free and equals under conditions of reasonable disagreement. Law is the authoritative resolution of questions of justice by norms, which in terms of the procedures used to generate them and the outcomes produced are demonstrably justifiable to those addressed in terms that free and equals might reasonably accept. The structure of human rights adjudication is geared towards establishing whether or not a particular legal norm burdening an individual can be demonstrably justified to that individual under this standard. In this way human rights operationalize what Rainer Forst has called the right to justification, and is at the heart of a non-domination-oriented liberal conception of law and justice. If an account along these lines provides the best justification for the practice we have, we have not only gained a deeper moral appreciation of human rights practice such as it happens to be. We are also in a better position to interpret, and progressively develop that practice in a way to help it better realize its moral point. In many ways the following is something between the articulation of a research agenda and a fully developed argument. The descriptive part as it stands is too Eurocentric and even as such would require further substantiation. At important junctures an argument is merely gestured towards, rather than carefully elaborated, and alternative interpretations and critical arguments are given short thrift. If such a contribution is nonetheless of value, it is because it opens up a perspective on con- temporary human rights practice that is philosophically distinctive, potentially transformative, and deserving of further exploration.

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  An Economic Analysis of Effective Compliance Programs

  Geoffrey P. Miller

  Many regulatory systems demand that organizations implement compliance programs—either as a direct regulatory requirement, or as a cost-effective means for avoiding or mitigating penalties for violations. To receive regulatory credit, such programs must be “effective”—meaning, generally, that they must be reasonably designed and vigorously administered so as to deter and sanction violations of applicable norms. This chapter explores the economic meaning of “effective” compliance programs. I begin in Section 2 by discussing existing law on effective compliance programs, which takes the form of lists of various lengths and sorts. Section 3 undertakes a simple economic analysis of the concept of effective compliance; Section 4 examines some extensions of the basic analysis; and Section 5 concludes.

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  The Compliance Function: An Overview

  Geoffrey P. Miller

  This chapter discusses the compliance function, a form of internalized law enforcement employed by corporations and other complex organizations to ensure that employees and others associated with the firm do not violate applicable rules, regulations or norms. It first examines compliance within a general theory of enforcement. It considers the concept of internal control, the development of the compliance function and its distribution among control personnel, and compliance programs, policies, and contracts within an organization. It then analyzes the oversight obligations of the board of directors and the management team including the chief executive officer, the chief financial officer, the chief compliance officer, the chief legal officer, and the chief risk officer. It also outlines the elements of a robust compliance program and concludes by considering internal investigations, whistleblowers, criminal enforcement, compliance outside the firm, and business ethics beyond formal compliance.

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  Discrimination and Freedom

  Sophia Moreau

  There has been a longstanding debate in Anglo-American political philosophy about the relationship between freedom and equality. Isaiah Berlin argued that these two values are always potentially in conflict: full social and political equality can only be achieved by taking certain freedoms away from some people, and even though we may be justified in doing this, we must, according to Berlin, acknowledge the very real loss that this involves and not pretend that it can ever be fully compensated by a gain in equality. Many contemporary political philosophers have followed Berlin in assuming that freedom and equality are competing values, and they have offered us different accounts of the respective weight of these values in a theory of justice: libertarians emphasize the importance of protecting individuals’ liberties, whereas egalitarians emphasize the need to promote social and political equality. Other philosophers, however, have denied that the two values stand in tension at all. Peter Westen and Joseph Raz have urged that equality is really an “empty” value: people are treated as equals when they are given what they are entitled to. On this account, freedom is the primary value, and people are treated as equals as long as each of them is given as much freedom as they are entitled to. By contrast, Ronald Dworkin argued that it is equality, and not freedom, that is the “sovereign virtue”: far from being an empty value, the proper conception of equality will tell us which kinds of freedom we are entitled to, and why. But what about the relationship between freedom and discrimination? Legal and political philosophers are only beginning to think about this, since it is only over the past 15 to 20 years that philosophers have begun to think of discrimination as something worth theorizing about. Wrongful discrimination, broadly conceived, involves disadvantaging certain individuals because they possess, or are believed to possess, a certain kind of characteristic, in circumstances where this disadvantage is unfair. Sometimes this occurs intentionally or explicitly, and we call it “direct discrimination” or “disparate treatment”; sometimes it is a side-effect of a policy adopted for quite different and perhaps even beneficial reasons, and we call it “indirect discrimination” or “disparate impact.” We can helpfully think of both kinds of wrongful discrimination as one way in which the state, and sometimes also ordinary people, can fail to treat people as equals. So if we were to draw a Venn diagram, we would map out unfair discrimination as a smaller circle within the broader circle that represents inequality. So understood, discrimination is not an “empty” value, or equivalent to failing to give someone their due—for it is only certain kinds of traits that we think of as the basis for unfair discrimination. But many questions similar to those that philosophers have asked about equality and freedom arise in the case of discrimination and its relationship to freedom. It may seem, for instance, that the same tensions that Berlin noted between freedom and equality exist between freedom and discrimination. Certainly prohibitions on discrimination have effects on the freedom of contract of the discriminator: under such prohibitions, I am not free to exclude you or “people like you” from my bar because of your race; not free to deny you an apartment lease because of your religion; and not free to refuse to employ you because you are pregnant. One set of questions raised by discrimination and discrimination laws is whether these restrictions on freedom of contract are justified, and these questions have been explored by scholars such as Richard Epstein. However, it is a mistake to suppose that the only freedom at issue in such cases is the freedom of contract of the discriminator. For discrimination also has significant effects on the freedom of the discriminatee, and often also on the freedom of those who share the trait on the basis of which that person was disadvantaged. To take an easy example: Donald Trump’s proposal to ban Muslims who are not U.S. citizens from entering the United States would clearly affect the freedom of movement of Muslims who are non-U.S. citizens, as well as their freedom to take up a variety of opportunities in the U.S. And such a ban would also have effects on Muslims who are U.S. citizens, and whose own freedom of movement is not at issue. Because the ban expresses and encourages prejudice against Muslims and stereotyping of “them” as a group—a group, moreover, that the ban conceives of as un-American and apparently homogeneous – there would be many ways in which it would lessen the social and political freedoms of all Muslims within the United States. So insofar as we are concerned with people’s freedom in cases of discrimination, the real question is not how to balance the discriminator’s freedom against the disadvantaged group’s right to equal treatment, but how to balance different people’s freedoms against each other.

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  The Moral Seriousness of Indirect Discrimination

  Sophia Moreau

  Twenty years ago, Canadian equality rights activists Sheilagh Day and Gwen Brodsky criticised the widespread belief that there are deep moral differences between direct and indirect discrimination. Many people, they noted, assume ‘that direct discrimination is more loathsome, more morally repugnant’ than indirect discrimination ‘because the perpetrator intends to discriminate or has discriminated knowingly.’ By contrast, they suggested, indirect discrimination, even when justifiably prohibited by law, is commonly held to be ‘’innocent,’ unwitting, accidental, and consequently not morally repugnant.’ These assumptions about direct and indirect discrimination are still very much a part of our shared moral thought about discrimination; and they also linger within anti-discrimination law itself, purporting to justify certain features of these laws. The aim of this chapter is to question these assumptions about the relative moral seriousness of the two forms of discrimination. I shall argue that indirect discrimination is often just as morally problematic as direct discrimination, and its agents often just as culpable. But first, we need to look more closely at these assumptions. What is it, exactly, that we commonly assume? We tend to assume that agents involved in acts of wrongful direct discrimination are generally more culpable than those who discriminate indirectly, even in cases where we agree that the indirect discrimination can justifiably be prohibited by law, and even in cases where we agree that it is morally impermissible. This is a judgement about the culpability of the agent. We also assume that acts of direct discrimination are, when wrong, seriously problematic from a moral standpoint. By contrast, we are less certain about the moral status of acts and policies that indirectly discriminate. Even if we agree that a government is justified in legally prohibiting policies that are indirectly discriminatory, we may wonder whether the policies are all morally impermissible; and even when we view them as morally impermissible, we may feel that they are rarely as bad as most cases of wrongful direct discrimination. We would probably hesitate before ever calling any indirectly discriminatory policy ‘morally repugnant’. This second set of judgements is about the moral status of acts and policies. A set of parallel examples may help both to draw out these assumptions and to clarify the way in which the distinction between direct and indirect discrimination is commonly drawn. First, consider direct discrimination. In the UK, it is defined as an act or rule that treats one individual less favourably than another ‘because of’ a certain protected characteristic, such as race or sex or sexual orientation. The most common way to demonstrate that such treatment has taken place ‘because of’ a protected characteristic is to show that the agent intended to distinguish between this individual and others using this characteristic; but in cases where intent is difficult to prove or where the agent has something closer to an unconscious bias against members of this group, it suffices under UK law to show that the category of the individuals who are disadvantaged and the category of those who are correlatively advantaged ‘coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification’. In other words, direct discrimination seems to involve acts that—either consciously or unconsciously—aim at disadvantaging certain individuals because they possess or are presumed to possess a certain characteristic. It is natural therefore to assume that the agents of direct discrimination are culpable. Consider, for instance, a case of direct discrimination that arose recently in Canadian sports: the Quebec Soccer Federation’s explicit ban on turbans on the soccer field. In the wake of this ban, the Federation was accused of racism and insensitivity. Because the ban singled out a particular garment from a particular religion, in circumstances where there were no reasons to think that the garment in any way impeded the game, it is difficult to see how the Federation could have been motivated by anything but a combination of religious and racial prejudice. Their aim was to exclude Sikhs from the soccer field, simply because they disliked them. The Federation therefore seemed morally culpable, and the policy, morally repugnant.

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  The Normative Force of Law: Individuals and States

  Liam B. Murphy

  After distinguishing some other senses of the “normativity” of law, this chapter addresses its moral force. It is argued that all deontological accounts of a prima facie duty to obey the law, other than the argument from consent, fail for being unable to show that the moral value of law as an institutional order implies a duty to obey each and every legal rule. The argument from consent fails for familiar reasons. This leaves an instrumental account of the moral force of law as the only option. The upshot is that, for individuals, the moral force of law is variable, and often weak. The case is different for state officials, as subjects of either domestic or international law. Here the instrumental case for obedience is typically strong.

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  Freedom of Speech, Right to Privacy, and Human Rights

  David A. J. Richards

  Ronald Dworkin (1931-2013), an American legal philosopher, jurist, and scholar, was a stalwart advocate of human rights and dignity who developed a formidable scholarly combination of law and moral integrity. He propounded some of the most influential theories of law and morality in modern jurisprudence. This volume explores his thoughts on dignity where self-respect and authenticity play a key role. It also sheds light on contemporary judicial and moral conundrums, such as freedom of speech, freedom of religion, and the complex relationship between dignity, human will, and responsibility. The book, with contributions from eminent philosophers and thinkers from across the world, provides a detailed analysis of Dworkin's work on dignity. Each essay in the volume interprets his rich jurisprudential work, and motivates legal philosophers, practitioners, and judges to understand, practise, and disseminate Dworkin's jurisprudential thoughts.

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  Institutional Investors in Corporate Governance

  Edward B. Rock

  This chapter examines the role of institutional investors in corporate governance and whether regulation is likely to encourage them to become active stewards. It considers the lessons that can be learned from the US experience for the EU’s 2014 proposed amendments to the Shareholder Rights Directive. After reviewing how institutional investors fit within the historical evolution of finance, the chapter documents the growth in institutions equity holdings over time. It explains how institutional investors are governed and organize share voting before turning to two competing hypotheses to account for the relative passivity of institutional investors: the excessive regulation and the inadequate incentives hypotheses. In evaluating these hypotheses, it reviews the results of the SEC’s attempt to incentivize mutual funds to vote their shares. The chapter concludes by highlighting the role of hedge funds in catalyzing institutional shareholders, along with some of the risks associated with such highly incentivized actors.

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  A Human Right to a Healthy Environment? Moral, Legal, and Empirical Considerations

  César Rodríguez-Garavito

  Should there be a human right to a healthy environment? In this chapter, I aim to analytically and empirically unpack this question. Analytically, I draw on moral and legal theory in order to examine the premises of the question, reframe it, and offer an answer to it. Empirically, building on socio-legal studies of rights, I explore the potential benefits and costs of using “rights talk” in environmental debates in general, and of adopting the right to a healthy environment in an international legal instrument in particular. My argument is threefold. First, I posit that the terms of the question seem to assume a theory of human rights that views legal recognition as a constitutive component of rights. Implicit in the question of whether the time has come to consider a right to a healthy environment is the claim that the status of the latter as a right hinges on it being incorporated into a formal legal instrument. In line with Amartya Sen’s criticism of such a “legally parasitic” view of rights, I argue that a strong case can be made that the aspiration to live in a healthy environment already is a human right. Second, I contend that, even from a narrower, purely legal perspective, it can be said that a global right to a healthy environment is already in existence within customary international law. Third, I therefore argue that it is useful to reframe the question in the following terms: Should the right to a healthy environment be formally adopted in an international legal instrument? Thus restated, the question raises a host of issues regarding efficacy and impact that are common to efforts to turn moral and political claims into legal claims in general, and into international legal claims in particular. Based on an overview of these issues, I answer the question in the affirmative. This chapter is divided into three sections, each related to one of the arguments, followed by a conclusion. In the first section, I briefly discuss Sen’s objection to “legally parasitic” theories of rights in order to substantiate my claim that, understood as a moral right, a right to a healthy environment already exists. In the second section, I succinctly review the legal evidence and arguments in favor of the existence of such a right in customary international law. In the third section, I examine the trade-offs involved in the potential recognition of the right in an international legal instrument, whether a global treaty or an instrument of soft law. In the concluding section, I summarize the argument and wrap up my case for an international right to a healthy environment.

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  Responding to the Populist Challenge: A New Playbook for the Human Rights Field

  César Rodríguez-Garavito and Krizna Gomez

  This book collects and analyzes a repertoire of responses by human rights organizations to the crackdown against civil society in the populist context. Written by scholars and advocates in challenging political settings from around the world, this book offers ideas and inspiration to their peers in the human rights community who are grappling with and resisting the erosion of democracy and rights. This collection takes two steps towards clearing the path for this civil society transformation. First, it clarifies the specific challenges to human rights raised by contemporary populist regimes and movements. What is the populist playbook against human rights? Second, it contributes to documenting and learning from a wealth of initiatives by human rights actors. What innovations are human rights actors introducing into their strategies and narratives to counter those of populist regimes? In short, what is the human rights playbook against populism? From meticulous documentation of abuses in Turkey to more grassroots forms of social networking in Hungary, from peace caravans in India to finding new ways of being useful under 21st century dictatorships in Venezuela, like war correspondents reporting from the trenches, our authors step forward to share their own continuing struggles to help their communities. Based on evidence from populist governments in India, Venezuela, Hungary, Turkey, Russia, the United States, and Ecuador—as well as crackdowns against civil society in South Africa, Egypt and other countries—this volume provides hope, solidarity, and reinvigoration for the human rights movement.

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  The Antitrust Economics Treatment of Standard Essential Patents: The EU vs. the US

  Daniel L. Rubinfeld

  This paper discusses antitrust economics issues underlying the EU and US treatment of the balance between the rights of the developers of standard essential patent technologies technology—the patentees—and the rights of the implementers of the patents that drive the standard-setting organization. Currently, the rights of patentees and implementers are seen very differently by the US enforcement agencies and by the EU Competition Directorate. Absent an unlikely convergence, enforcement efforts are likely to be in conflict. Moreover, the resolution of this conflict could lead to a race with an uncertain outcome—it could be a race to the bottom or a race to the top. Following a brief overview of the antitrust economics issues surrounding the treatment of standard essential patents (SEPs), the paper discusses the differing perspective of the EU and the US. It concludes with commentary as to where the current tension between the EU and the US is likely to lead.

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  Odious Debt, Adverse Creditors, and the Democratic Ideal

  Margot E. Salomon and Robert L. Howse

  In the context of transitions from authoritarianism to democracy, the odious debt doctrine has often been raised as a claim to adjust or sever sovereign debt obligations, based on the purported odiousness of the previous regime and the notion that the debt it incurred did not benefit, or was used to repress, the people. Ultimately, the normative force of the odious debt doctrine comes from the primacy of the democratic ideal: when the debt was contracted not only was this done by a non-representative government but the debt served the purpose of that government in denying the political freedom of the people. Using Greece as an example, the chapter demonstrates how odious debt applies to debt incurred not only by dictators but by democracies and how, in the latter circumstances, international creditors are implicated in ‘hostile’ acts against the demos. It concludes with suggestions on the remediation of odious debt.

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  Leaving No One Behind? Persistent Inequalities in the SDGs

  Margaret L. Satterthwaite and Inga T. Winkler

  With a rallying cry of ‘leave no one behind’, the Sustainable Development Agenda has moved inequalities centre stage. A number of the Sustainable Development Goals (SDGs) include a cross-cutting focus on inequalities and the advancement of some communities that have historically experienced discrimination. However, the litmus test for whether the SDGs will truly ‘leave no one behind’ is not the inclusion of such (aspirational) language, but whether this language will translate into implementation. In that regard, monitoring through indicators will play an important role. As metrics pegged to specific targets, indicators have the power to concentrate effort and attention. Moving beyond aggregate outcomes will require that the data related to these indicators be sufficiently disaggregated to demonstrate the existence, magnitude and interplay of multiple forms of inequalities. However, despite a mandate to produce disaggregated data, there has been little attention to disaggregation based on some of the most important axes of discrimination—especially race or ethnicity. Human rights call for focusing on those who are often pushed to the margins of society—through political, social and economic processes as well as by data collection and analysis itself.

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  Building the First Global Network University

  John E. Sexton

  I am delighted to write in honour of Bert van der Zwaan, whose seminal book Higher Education in 2040 - A Global Approach has influenced an entire generation of leaders in higher education. This essay provides just one example of how New York University has embraced Rector van der Zwaan’s concepts of global higher education. In 2006, leadership teams in Abu Dhabi and New York University set ambitious goals as they conceptualized the partnership that created NYU Abu Dhabi. They hoped to attract academic leaders and students who were as outstanding as those at the world’s finest universities. A decade later, even those expectations would prove modest compared to what has happened. From the beginning, NYU Abu Dhabi was envisioned as a research university, with all that implies, into which a liberal arts college would be fully integrated. Beginning in 2007, three years before the first freshman would arrive, the team set out to recruit faculty members. Some would circulate periodically from among existing faculty at NYU New York. Others would be selected by the departments or units in New York specifically to be in Abu Dhabi most of the time. Together, they would develop the liberal arts curriculum of the new campus. That same year, some of NYU’s lead faculty began research projects in Abu Dhabi that operated jointly with work being conducted in New York. And faculty members began to call leading experts from around the globe to conferences in Abu Dhabi—several dozen each year—that spanned the disciplines. The initial team leader was one of New York’s leading deans, who moved to Abu Dhabi with her husband and young children. The successful president of one of America’s leading liberal arts colleges left that college to become the inaugural vice chancellor of NYU Abu Dhabi. A leader of a major initiative in genomics in New York moved with his family to Abu Dhabi, co-locating his lab, to be the campus provost, even as a new genomics building and faculty hiring initiative had begun in New York. And so on, from admissions to public safety to student life to technology, many of the very best faculty and staff joined the project with enthusiasm. Those who chose to join NYUAD had different motivations. Some of NYU’s leading faculty were drawn by the mission and the opportunity to build a curriculum, such as the innovative science curriculum that was unencumbered by the obstacles associated with reforming an existing structure. Others were attracted by research interests, as was the case with a Middle Eastern Studies professor whose hope, now realized, was to organize definitive translations of major Arabic language works, or the linguistic neuroscientist who was interested in the languages of the region. By September 2010, when the first undergraduates arrived, there was already a well-established culture of advanced academic research, while faculty teams committed to teaching and mentoring the incoming class had implemented the foundations of the new curriculum. Not surprisingly, the groundbreaking undergraduate opportunity in Abu Dhabi appealed to a high-talent group of students. The admissions team sought a cohort of students—literally from around the globe—who were ‘clearly admissible, on the traditional norms, to ANY college or university in the world’. But, from the start, the admissions team understood that finding students who met this traditional standard alone would not be enough. Each admitted student had to manifest a ‘cosmopolitan gene’ that revealed a commitment to creating a global community that relished diversity. The NYU Abu Dhabi admissions process occurs in two stages. The first stage is similar to the standard processes at most top schools: an assessment of a file of academic achievements and standardized tests. In this first stage, the team assesses the candidate on traditional criteria and makes a judgment call about the applicant’s commitment to ecumenical values. From this assessment, a set of ‘finalists’ (about five per cent of all applicants) is created; these finalists are then brought to Abu Dhabi for a two-day Candidates’ Weekend—the second stage—consisting of interviews, classes, written exercises, and other tests. After this latter assessment, where the staff evaluates not only intellectual talent but also the commitment to the values of the enterprise, a decision is made whether to offer admissions. About half of the students who come to the Candidates’ Weekend receive offers.

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  Daimler and Bristol-Meyers: What’s Next for Personal Judicial Jurisdiction in the United States?

  Linda J. Silberman

  After the Supreme Court’s 2014 decision in Daimler AG v. Bauman, which meant the end of the “doing business” jurisdiction in the United States, the nagging question left to address is: “What’s next for personal judicial jurisdiction in the United States?” In order to make sense of the future, some sense of the past is necessary, so a short summary is in order as to why Daimler and subsequently Bristol-Myers have ushered in a new era. Generally, the outer limit on the assertion of jurisdiction in the United States is a constitutional one imposed by the Due Process Clause of the Constitution. In Daimler, the Supreme Court reaffirmed what it had only hinted at in dicta a few years earlier in Goodyear Dunlop Tires Operations S.A. v. Brown: that for general or “all-purpose jurisdiction”—meaning a claim unrelated to the defendant’s forum activities—a corporation’s affiliations with a forum must be so continuous and systematic as to render it essentially “at home”; and that the paradigm situation of “at home” should be understood as the corporation’s place of incorporation or its principal place of business. That rule would seem uncontroversial to lawyers in Europe. However, from the 19th century on, in the United States, a corporation was subject to jurisdiction wherever it was incorporated or said to be “present” in the forum; and “presence” was satisfied when the corporation had a certain level of systematic and continuous activities in that forum and could be said to be “doing business” there. The Supreme Court appeared to adopt that standard in dicta in 1945 in the International Shoe case, but International Shoe itself involved only the issue of specific—or as it is known in Europe, special—jurisdiction. In two other cases that reached the Court over the next 65 years, the Court appeared to confirm the “systematic and continuous” activities standard. Then in the 2011 Goodyear decision, the Supreme Court reversed a lower North Carolina state court which had asserted jurisdiction over foreign tire manufacturers for an accident that took place in France based on the defendants’ sales of similar tires in North Carolina. The decision was unsurprising since it was clear under Supreme Court (as well as lower court) precedents that mere sales by a corporate defendant into a state would not constitutionally suffice for general jurisdiction even under the old “doing business” standard. However, the Supreme Court, in an opinion by Justice Ginsburg, went much further in dicta to say that a corporation’s affiliations with a forum must be “so continuous and systematic” to render it “at home”, adding that the paradigm for “home” was the place of incorporation and principal place of business of the corporation.” Post-Goodyear, scholars debated whether the “at home” language was merely superfluous and did not alter the current doctrine, or whether the Court had dramatically changed the prior “doing business” standard for general jurisdiction. The answer finally came in the Daimler case, where Justice Ginsburg in the opinion for the Court stated “we really meant what we said” in Goodyear. It was a surprising comment because the standard for general jurisdiction was not even the issue on which the Supreme Court had taken the case.

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  Copyright and Creative Incentives: What Do(n't) We Know?

  Christopher J. Sprigman

  The grounding justification for copyright law is that the grant of exclusive rights in artistic and literary works will incentivize authors to invest in new creativity. The economic theory undergirding this justification is straightforward. By preventing competition from copyists, copyright law helps to ensure that the rents (if any) generated by a particular act of artistic or literary creativity will flow to the creator, and not to a competitor. The improved prospect of gain will, it is believed, motivate additional creative effort. This is an entirely sensible story, but is it right? On that most foundational question, we have mostly surmise, and little empirical evidence. We have a small number of event studies designed to investigate copyright incentives. We also have a growing number of qualitative studies of copyright incentives in the branch of IP scholarship that some refer to as Intellectual Production Without Intellectual Property (“IP Without IP”) and others as the “Negative Space” scholarship. And we have a very small number of lab experiments investigating copyright incentives. Together, these scattered bits of empirical evidence suggest that the relationship between copyright and creativity is . . . complicated. There is evidence that copyright incentivizes some sorts of creativity sometimes—although that evidence is thin and contestable. Other evidence suggests that copyright incentives may, in some settings, do little or nothing to encourage creative output—but again, this evidence is far from definitive. The partial, hazy picture that has emerged so far calls to mind what Professor Fritz Machlup said about patents in a 1958 report to the United States Congress: “If we did not have a patent system, it would be irresponsible on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible on the basis of our present knowledge, to recommend abolishing it . . .” Some progress has been made since 1958 in understanding the effect of our patent laws on innovation and social welfare, although our understanding remains partial. The state of our knowledge regarding the net social benefits of copyright law is, by comparison, truly rudimentary. Copyright remains a legal regime driven by interest group lobbying and intuition, rather than evidence. This chapter highlights representative examples of the existing empirical scholarship on the relationship between copyright and creative incentives, and assesses how well the existing scholarship informs us regarding the supposed link between the two. The existing evidence is equivocal, and, most importantly, poorly developed relative to what would be necessary in order to provide better guidance for policymaking—a situation that should be profoundly frustrating for anyone who isn’t content to turn over copyright policymaking to a mix of interest group politics and nonutilitarian theories. The problem with relying on interest group politics should be obvious—the political economy of copyright has been, and remains, dominated by producer interests, and there is little reason to believe that producer-dominated policy making will reflect the public interest, or advance social (rather than merely producer) welfare. Reliance on deontic (nonutilitarian) justifications is just as unsatisfying. While the variety of Lockean labor-based arguments and Kantian or Hegelian “personality” theories that have been offered do succeed, at a general level, at explaining why we have some sort of copyright system rather than nothing at all, these nonutilitarian theories are not much use in explaining what the particular rules of the copyright system should be at a level relevant to lawmaking (the task that should matter to lawyers and lawmakers). Should the copyright term be longer or shorter? How close must copying be before we recognize it as “infringement”? Should copyright contain a “fair use” doctrine, and, if so, of what sort? What is the best distribution of rights as between first-stage creators and those who follow them and who use elements of pre-existing work in their own work? On all these questions, deontic theorists have little to say, not least because the moment deontic theories attempt to approach copyright policy questions at the level of particularity required to construct and justify an actual copyright system, they break down immediately into utilitarianism. In sum, it is difficult, given the parlous state of our knowledge about the effects of copyright rules on creative incentives, to offer helpful input to policymakers regarding the likely effect of many proposed changes to existing law. And in the absence of real evidence, policymakers are left at liberty to heed their biases and the blandishments of lobby groups. The balance of this chapter reviews some of the recent empirical scholarship investigating the link between copyright rules and creative incentives. We shall begin with a study that is perhaps the most supportive in the recent literature—albeit with substantial caveats—of the link between copyright and creativity. It is a historical study of Napoleonic-era Italy, and of the relationship between the introduction of copyright law and the output of Italian operas.

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  Foreword

  Bryan A. Stevenson

  In 1985, Anthony Ray Hinton was arrested and charged with two counts of capital murder in Alabama. Stunned, confused, and only twenty-nine years old, Hinton knew that it was a case of mistaken identity and believed that the truth would prove his innocence and ultimately set him free. But with no money and a different system of justice for a poor black man in the South, Hinton was sentenced to death by electrocution. He spent his first three years on Death Row at Holman State Prison in agonizing silence—full of despair and anger toward all those who had sent an innocent man to his death. But as Hinton realized and accepted his fate, he resolved not only to survive, but find a way to live on Death Row. For the next twenty-seven years he was a beacon—transforming not only his own spirit, but those of his fellow inmates, fifty-four of whom were executed mere feet from his cell. With the help of civil rights attorney and bestselling author of Just Mercy, Bryan Stevenson, Hinton won his release in 2015. With a foreword by Stevenson, The Sun Does Shine is an extraordinary testament to the power of hope sustained through the darkest times. Destined to be a classic memoir of wrongful imprisonment and freedom won, Hinton’s memoir tells his dramatic thirty-year journey and shows how you can take away a man’s freedom, but you can’t take away his imagination, humor, or joy.

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  Foreword

  Bryan A. Stevenson

  This exploration of the effects of lynching in the U.S. speaks powerfully to us in these times that have witnessed the creation of the Legacy Museum and the National Memorial for Peace and Justice. Nearly five thousand black Americans were lynched between 1890 and 1960, and the effects of this racial trauma continue to resound. Inspired by South Africa's Truth and Reconciliation Commission, and drawing on techniques of restorative justice, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, offers concrete ways for communities to heal. She also issues a clarion call for communities with histories of racial violence to be proactive in facing this legacy. This revised edition speaks powerfully to us in these times that have witnessed the creation of the Legacy Museum and the National Memorial for Peace and Justice in Montgomery, Alabama. The new foreword from Bryan Stevenson helps readers to better understand contemporary struggles and come to terms with the legacy of racial terror in the United States. In a new afterword, Ifill reflects on the recent strides made throughout the country to break the silence surrounding lynching and to recognize the victims of violence.

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  Users, Patents and Innovation Policy

  Katherine J. Strandburg

  Users are important innovators in many fields. Often, they do not need socially costly patent incentives to invent, disclose, and disseminate their inventions. A patent-free user innovation (UI) paradigm is likely to be successful and socially desirable when an invention’s value to users has a substantial non-competitive component. If a user innovator values an invention primarily for providing a competitive edge, the patent-free UI paradigm is not viable. Most such inventions have little social value. Some, however, such as improved manufacturing processes, produce significant collateral value for non-users and should be encouraged. Patents may be important for these UIs. Socially beneficial policy interventions to buttress the patent-free UI paradigm might include tools and infrastructure to support user communities and changes to patent doctrine, such as accounting for UI in assessing nonobviousness, patentable subject matter exemptions, particularly for many types of processes, and user exemptions from infringement liability.

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  Deep Morality and the Laws of War

  Jeremy Waldron

  It is important to reflect on the way we evaluate the laws and customs of armed conflict and the responsibilities we take on when we criticize and propose possible changes to them. These laws are not robust, and there is a danger that criticism may undermine their force while not providing effective alternatives. Moreover, in the area of armed conflict, it is easy to underestimate the pressures that a satisfactory set of norms has to respond to and easy to exaggerate the “merely” conventional character of such norms. Laws of war must be administrable in circumstances of fear, confusion, and violence and must include elements of technicality difficult to understand in philosophical terms. One of the most influential of recent laws of war revisionists, Jeff McMahan, acknowledges that his deep moral critique of existing norms of armed conflict does not necessarily yield a set of prescriptions for legal reform. This chapter extends McMahan’s and counsels the utmost caution in these critiques and re-examinations.

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  Human Rights: A Critique of the Raz/Rawls Approach

  Jeremy Waldron

  This chapter examines and criticizes the suggestion that we should interpret the “human” in “human rights” as (i) referring to the appropriate sort of action when certain rights are violated rather than (ii) the (human) universality of certain rights. It considers first a crude version of (i)—the view that human rights are rights in response to whose violation we are prepared to countenance humanitarian intervention; then it considers more cautious and sophisticated versions of (i). It is argued that all versions of (i) distract us with side issues in our thinking about human rights, and sell short both the individualism of rights and the continuity that there is supposed to be between human rights and rights in national law. The chapter does not deny that there are difficulties with views of type (ii). But it denies that the positing of views of type (i) gives us reason to abandon the enterprise of trying to sort these difficulties out.

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  Essai Typologique: Eternal Clauses—Human and Divine—A Reflection on Deuteronomy XIII: 1–6, Matthew 28 and Galatians I

  Joseph H. H. Weiler

  In the aftermath of the global financial crisis, the world has witnessed increasing manifestations of eroding trust in the international trade regime, including Brexit and the Trump administration's unilateral trade policies. Restoring trust in the international trading system is essential to prevent the rise of economic nationalism and beggar-thy-neighbour policies, which as history has shown are a threat to global welfare and peace. As a scholar, counsellor of the WTO Appellate Body Secretariat, and, between 2009 and 2017, a member of the WTO Appellate Body, Peter Van den Bossche has addressed the challenges faced by the international trade regime and has tirelessly promoted trust in the multilateral governance model. This Liber Amicorum honours his contribution to the development of a 'trustworthy' rules-based multilateral trading system, which has left a lasting legacy. In this timely book, leading experts and friends of Peter Van den Bossche, including his mentors, colleagues and PhD candidates, come together to pay tribute to his work by exploring, from a legal perspective, what can be done to restore trust in trade, focusing on: (1) ensuring a robust institutional framework that promotes rule of law over power politics, (2) safeguarding the integrity and effectiveness of trade dispute settlement, and (3) ensuring that substantive international trade rules appropriately balance trade and non-trade interests.

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  The Crumbling of European Democracy

  Joseph H. H. Weiler

  Is the world facing a serious threat to the protection of constitutional democracy? There is a genuine debate about the meaning of the various political events that have, for many scholars and observers, generated a feeling of deep foreboding about our collective futures all over the world. Do these events represent simply the normal ebb and flow of political possibilities, or do they instead portend a more permanent move away from constitutional democracy that had been thought triumphant after the demise of the Soviet Union in 1989? Constitutional Democracy in Crisis? addresses these questions head-on: Are the forces weakening constitutional democracy around the world general or nation-specific? Why have some major democracies seemingly not experienced these problems? How can we as scholars and citizens think clearly about the ideas of “constitutional crisis” or “constitutional degeneration”? What are the impacts of forces such as globalization, immigration, income inequality, populism, nationalism, religious sectarianism? Bringing together leading scholars to engage critically with the crises facing constitutional democracies in the 21st century, these essays diagnose the causes of the present afflictions in regimes, regions, and across the globe, believing at this stage that diagnosis is of central importance—as Abraham Lincoln said in his “House Divided” speech, “If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.”

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  The Novelty of TNC Regulation

  Katrina M. Wyman

  In The Upstarts, business journalist Brad Stone chronicles the development of Uber, from Garrett Camp’s 2008 vision of an on-demand car service, to Uber’s impact in the United States as of the end of 2016. Along the way, Stone recounts some of the formative battles Uber and Lyft fought with city and state legislators and regulators. Some of them saw the benefits of Uber and Lyft’s innovations, but also insisted on protecting public safety. Others were overly wedded to the status quo, perhaps because of longstanding ties to the traditional taxi industry. Although it is not Stone’s main focus, the rise of Uber and Lyft is a story of legislative and regulatory innovation, as well as entrepreneurial chutzpah. In the past five years, but especially since 2015, pushed by Uber and Lyft, a new framework has been developed in most parts of the United States to legalize and regulate these upstarts. There are important differences between this new framework and the approach historically used to regulate the taxi industry. While local governments historically were the main regulators of taxis, state governments have elaborated the regulatory framework governing transportation network companies (TNCs) in many parts of the United States. As of the end of June 2017, 48 states have passed legislation facilitating the operations of TNCs, although local governments regulate the TNCs in some of their biggest urban markets, such as New York City, Washington, D.C., and Chicago. Perhaps more important than the change in who is regulating is that jurisdictions are applying a much “lighter” regulatory framework to TNCs than the framework that governs the traditional taxi industry—even though both taxis and TNC vehicles compete in the same market for “point-to-point transportation.” This chapter assesses the novelty of the regulatory regime that has been crafted for TNCs in the United States. I make three main points. First, I offer some historical context for analyzing the TNC regulatory regime in the United States. Decades before the creation of the TNCs, economists had critiqued traditional taxi regulation as antiquated and overly burdensome for the taxi industry. The old regulatory framework was ripe for change long before the TNCs arrived on the scene—and indeed their emergence was partly due to the sclerotic effect of taxi regulations on the taxi industry. Second, I address the content of the regulatory regimes adopted by state and local governments for TNCs. Governments generally have adopted regulatory regimes that are broadly similar in their outlines in that they focus on public safety regulation, and omit the regulation of entry and fare levels that was central to the antiquated taxi regulatory regime. This focus on safety regulation is generally consistent with the longstanding recommendations of economists for the regulation of dispatched taxis, of which TNCs are the modern instantiation. My third point concerns the limits of the regulatory innovation to date. The framework for regulating TNCs reflects the influence of the TNCs, just as the old taxi regulatory regime bore the imprint of the taxi industry. This raises the prospect that TNC regulation, like taxi regulation before it, could be sub-optimal from a broader societal perspective. It also could become a means to entrench the existing TNCs and enable them to complicate the entry of new businesses to the point-to-point transportation market.

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  The Regulation of Transportation Network Companies in the United States

  Katrina M. Wyman

  The “Uber phenomena” is the perfect case for a comparative law study: a global phenomenon, impacting almost every country, causing massive disruption of local monopolies and raising many of the same legal questions worldwide. In most countries, taxi companies have long enjoyed monopolies amidst strictly regulated markets. Uber’s emergence, combined with the development of a new economic model based on innovative technological tools, has profoundly impacted the industry. It all happened very fast. Uber launched operations in 2009 in the United States and, within a few years, has changed the face of the taxi industry throughout the world. The purpose of this book is to explain how various legal systems reacted and adapted to the disruption caused by the emergence of this new economic model. It is a book about economic regulation, it focuses on how the law regulates—more or less strictly—the actions of economic entities. This book is the collective work of an amazing teams of authors—all academics in law or lawyers—from around the world and representing twenty-two countries, namely Argentina, Australia, Belgium, Brazil, Canada, China, Colombia, Denmark, Finland, France, Germany, Greece, Italy, Japan, Lithuania, Poland, Portugal, the Netherlands, Spain, Switzerland, the United Kingdom and the United States.