Faculty Chapters

Follow

• 

  Beyond Enforcement: Assessing and Enhancing Judicial Impact

  César Rodríguez-Garavito

  At approximately 2 p.m. on October 20, 2016, Justice Jorge Iván Palacio, a judge of the Constitutional Court of Colombia, approached the podium to open a remarkable public hearing in a remarkable place. The hearing was a continuation of the monitoring process of one of the most important rulings of one of the most activist courts regarding economic and social rights (ESR). In handing down this decision in 2008, the court ordered structural injunctions and undertook the long process of monitoring compliance with its orders, in order to address the structural causes of failures in the healthcare system. The hearing took place in Quibdó, on the Pacific Coast the capital of the poorest province of Colombia whose hospital was falling to pieces, as we had confirmed in a visit with the court the same day. In spite of the evidence that demonstrated how much was left to be done to fulfill the right to health, the hearing also made clear to all of us in attendance the impact that eight years of court intervention had had. The decision and monitoring process set off legislative and administrative reforms that substantially improved health services, as the minister of health recognized in his presentation. In addition, it placed the issue of health crisis at the center of media and public policy debate, as analysts and special masters appointed by the court for the case highlighted in our presentations, and as the presence of cameras and important media outlets in the event demonstrated. Also, the court managed to create a dialogue between diverse social and professional sectors involved in the health system, from doctors to patients and human rights nongovernmental organizations (NGOs), who presented themselves before the court during the long day. Although the Colombian Constitutional Court (CCC) in general, and its ruling on the right to health in particular, embodies an especially visible and ambitious form of judicial activism on ESR, the court’s actions can be viewed as part of a broader trend evident in other countries of the Global South, toward the judicial enforcement of such rights in contexts of stark deprivation and inequality. A variety of constitutionalism that has developed largely in the Global South expands the concept of human rights and the role of courts in protecting them, so as to include ESR alongside civil rights as justiciable legal provisions. Although initially raising doubts among scholars and advocates, such “Southern constitutionalism” has gradually been transnationalized. As evident in the chapters in this volume, numerous governments, courts, and NGOs in both the North and the South have promoted legal instruments, doctrines, and strategies to make ESR justiciable. In a reverse legal transplant, the idea of enforceable ESR has been embraced by some of its former critics and incorporated into debates in US and European constitutional theory. Among the best-known examples of this trend is the jurisprudence of India’s Supreme Court, which has addressed structural social problems such as hunger and illiteracy and has been accompanied by the appointment of commissioners that monitor the judgments’ implementation. Similarly, the South African Constitutional Court has become a central institutional forum for promoting rights such as housing and health and for nudging the state to take actions against the economic and social legacy of apartheid. In Latin America, judicial activism on ESR has become increasingly prominent over the past two decades. In countries as different as Brazil and Costa Rica, courts have decisively shaped the provision of fundamental social services such as healthcare. In Argentina, some courts have undertaken structural cases and experimented with public mechanisms to monitor the implementation of activist judgments such as Verbitsky (on prison overcrowding) and Riachuelo (on environmental degradation). In Colombia, a particularly activist and innovative constitutional court has stretched the limits of the civil law tradition by aggregating, on its own initiative, thousands of individual constitutional complaints (tutelas) on ESR violations and handing down collective rulings with long-term, structural injunctive remedies to attend to them. By declaring such situations as “unconstitutional state of affairs,” the Colombian Court has launched multiyear participatory processes to monitor compliance with its rulings on the rights of, among others, prisoners in overcrowded detention facilities, patients seeking treatments and medicines from the dysfunctional healthcare system, and millions internally displaced persons. The literature on the justiciability of ESR has multiplied apace with the proliferation of activist rulings. Two angles of analysis have dominated this scholarship. First, some key contributions have concentrated on making a theoretical case for the justiciability of ESR, in light of the demands of democratic theory and the reality of social contexts marked by deep economic and political inequalities. Second, a number of works have entered into discussion from the perspective of human rights doctrine, in order to give greater precision to judicial standards for upholding ESR, and to boost their utilization by judicial organs and supervisory bodies at both the national and international level. These perspectives have advanced considerably in the conceptual elucidation and practical impetus of the justiciability of ESR. Nevertheless, their emphasis on the production phase of judgments has created a blind spot, both analytical and practical: the implementation stage of rulings. For this reason, there is a paucity of systematic studies on the fate of judicial decisions on ESR rights such as the above-mentioned ruling of the CCC on the healthcare system. Beyond the courtroom, what happens to the orders contained in these judgments? To what extent do public officials adopt the conduct required by courts to protect a given ESR? What impact do the rulings have on the state, civil society, social movements, and public opinion? Ultimately, do they contribute to the realization of ESC rights? A budding area of scholarship seeks to tackle these questions. Some contributions to this literature have offered domestic or comparative quantitative assessments of the effects of ESR rulings. Others have zoomed in on rulings on a specific right – notably the right to health – in order to offer detailed comparisons of effects across jurisdictions. Yet others have surveyed national and international courts’ practice or detailed case studies to extract analytical conclusions on the implementation and efficacy of ESR rulings.

• 

  Business and Human Rights: Beyond the End of Beginning

  César Rodríguez-Garavito

  The regulation of business in the global economy poses one of the main challenges for governance, as illustrated by the dynamic scholarly and policy debates about the UN Guiding Principles on Business and Human Rights and a possible international treaty on the matter. This book takes on the conceptual and legal underpinnings of global governance approaches to business and human rights, with an emphasis on the Guiding Principles (GPs) and attention to the current treaty process. Analyses of the GPs have tended to focus on their static dimension, such as the standards they include, rather than on their capacity to change, to push the development of new norms, and practices that might go beyond the initial content of the GPs and improve corporate compliance with human rights. This book engages both the static and dynamic dimensions of the GPs, and considers the issue through the eyes of scholars and practitioners from different parts of the world.

• 

  Self-Executing Statutes in the Administrative State

  Adam M. Samaha

  Some statutes delegate authority to administrative agencies while others do not. Far less well known is that some statutes are self-executing while others are not. That is, some statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action. Maintaining a practical distinction between self-executing and non-self-executing statutes can be challenging, but the models are different and they coexist in our legal system today. Thus, some famous modern statutes create law to govern social life even if an agency fails to act or flunks judicial review (e.g., parts of the Controlled Substances Act of 1970 and the Dodd-Frank Act of 2010), while other equally famous statutes depend on successful agency action to create such law (e.g., parts of the Clean Air Act of 1970 and the Affordable Care Act of 2010). This chapter specifies trade-offs across modern self-executing and non-self-executing statutes, identifies forces that lessen but do not eliminate the differences, and finds that courts have not effectively opposed either model. These model choices are more political and policy based than judicial or constitutional. When combined with other dimensions of choice such as specificity, breadth, complexity, personnel appointments, material resources, and decision sequencing, we can better understand the basic elements of statutory design and, therefore, the architecture of our legal system. Keywords: legislative design choices, self-executing statutes, delegation to agencies.

• 

  Quantitative Methods in Advocacy-Oriented Human Rights Research

  Margaret L. Satterthwaite and Daniel Kacinski

  Applied human rights researchers have turned to quantitative methods in recent years to ‘move beyond anecdote’ and answer questions about the scope, intensity, characteristics, responsibility for and causes of human rights violations. Drawing on widely varying data, a range of methods with different capabilities have been employed for a spectrum of purposes. These methods not only vary in their approach and capacity, but they also relate to international human rights law in different ways. This chapter provides an overview of how quantitative methods are being used by researchers engaged in real-world human rights work. The methods can be split into two general categories: first, techniques focused on the collection of data, and second, methods that can be applied to transform and analyze that data. Both categories of tools provide unique promise for human rights research, but also carry perils that practitioners must be aware of. These tools, when applied in the proper settings and for appropriate uses, can give access to information that would otherwise be difficult, if not impossible, to obtain, and can identify patterns or practices that might otherwise be missed. Practitioners must be wary, however, of perils in application and fit: while applied human rights questions are similar in many ways to queries in social science, they differ in their ethical dimensions and immediacy.

• 

  The Importance of the Afterlife. Seriously.

  Samuel Scheffler

  I believe in life after death. No, I don’t think that I will live on as a conscious being after my earthly demise. I’m firmly convinced that death marks the unqualified and irreversible end of our lives. My belief in life after death is more mundane. What I believe is that other people will continue to live after I myself have died. You probably make the same assumption in your own case. Although we know that humanity won’t exist forever, most of us take it for granted that the human race will survive, at least for a while, after we ourselves are gone. Because we take this belief for granted, we don’t think much about its significance. Yet I think that this belief plays an extremely important role in our lives, quietly but critically shaping our values, commitments and sense of what is worth doing. Astonishing thought it may seem, there are ways in which the continuing existence of other people after our deaths—even that of complete strangers—matters more to us than does our own survival and that of our loved ones.

• 

  A Transatlantic Privacy Pact?: A Sceptical View

  Stephen J. Schulhofer

  Everywhere in the world, twentieth-century safeguards for privacy vis-à-vis the government were radically incomplete. But individuals nonetheless had many practical ways to shield private information. The digital revolution has upended this structure. Government access to personal information and its ability to extract revealing personal details from them are exponentially simplified. Although these developments largely work to the advantage of State surveillance, law enforcement has its own needs for clarification, at the same time that citizens need new means of refuge from state scrutiny. Prominent privacy and human-rights advocates urge that the answer to these problems lies in a multilateral agreement requiring states to adhere to uniform, privacy-sensitive standards, with no discrimination between their own nationals and those of other countries. An international movement of privacy activists is promoting a ‘Snowden Treaty’ to achieve a similar objective. As a substantive matter, it is surely right to consider the problem from the perspective of universal human rights. Yet as an institutional matter, the turn to an international agreement will sideline the courts, disempower legislative bodies and privacy advocates, defuse commercial pressure for strong privacy safeguards, and create a dynamic controlled almost exclusively by the executive and its national security establishment. I do not want the fox to design this henhouse. This essay explains why that would happen in a multilateral process and why its consequences for worldwide privacy are not attractive. On the contrary, national sovereignty should continue to frame the search for solutions. Part I describes privacy protection in the pre-digital world and explains how the digital era has eroded many practical safeguards. Part II summarises recent proposals for restoring a more privacy-protective environment by means of international agreements. The remainder of the paper argues that these well-intentioned proposals are unlikely to accomplish their objective. Although the ultimate concern is for privacy and democracy worldwide, Part III opens the analysis parochially, by arguing that a multilateral approach would be bad for Americans. Part IV argues that international agreements would be bad for privacy and democracy in the rest of the World as well, because American commitments to national security oversight can exert a stronger upward pull on global norms than can the terms of any foreseeable international agreement. Paradoxically, the jurisdictional competition that usually precipitates a ‘race to the bottom’ is more likely, in this context, to prompt a ‘race to the top’. This author takes no pride in supporting an approach that bears an uncomfortable resemblance to celebratory ‘American exceptionalism’. That concept has a well-deserved reputation for moral insensitivity and catastrophic consequences. In the setting of the global privacy dilemma, however, the normally powerful attractions of international co-operation and universal conceptions of human rights present distinct dangers. The effort to find international common ground in this area should not be encouraged but instead cautiously opposed.

• 

  The Economics of Tax Law

  Daniel N. Shaviro

  This chapter considers the question of how tax law can be designed with an eye to maximizing economic efficiency. From the standpoint of efficiency, no lump-sum tax is better than any other—by definition all succeed equally in avoiding the creation of deadweight loss. This leads directly to two main questions. First, why are lump-sum taxes, or instruments that come as close to them as possible, so absent, not just in actual practice but even in theoretical debate about tax policy? The answer turns on the importance of distributional issues. Second, how do considerations of efficiency operate once we have accepted, for distributional reasons, the need for tax instruments that have the unfortunate side effect of discouraging productive activity?

• 

  The More It Changes, the More It Stays the Same? Automatic Indexing and Current Policy

  Daniel N. Shaviro

  This chapter addresses issues associated with automatically indexing fiscal policies, such as those in the U.S. income tax and Social Security systems. Under indexing, a statistical measure—pertaining, for example, to inflation, wage levels, life expectancy, or income inequality—is used to determine changes to nominal legal rules that then take effect automatically. One possible reason for favoring automatic indexing is that it may keep the underlying policy, by some metric, the same as empirical circumstances change. While indexing often makes sense from the standpoint of a policymaker whose long-term preferences it would keep in place barring further legislative action, identifying the set of current policies that one might want to perpetuate (or change) can be surprisingly difficult. The chapter explores broader conceptual issues pertaining to policy continuity and competing objectives when legislation remains on the books indefinitely, with particular reference to examples drawn from the history of the U.S. income tax and Social Security. Keywords: automatic indexing, inflation indexing, long-term budget policy, timing of legal intervention, policy change, tax reform, Social Security reform

• 

  (American) Conflict of Laws Revolution

  Linda J. Silberman

  The term ‘conflict of laws revolution’ is a short-hand reference to describe the intellectual movement that ‘challenged and eventually demolished the foundations of the established American system of conflicts law’ (Symeon C Symeonides, The American Choice-of-Law Revolution: Past, Present, and Future (Martinus Nijhoff 2006)). As Professor Symeonides notes, however, the term ‘American conflicts law’ is itself a misnomer since there is no single American conflicts law. Conflict of laws is primarily the province of state law and thus each state has its own conflict-of-laws rules. Pursuant to Klaxon Co v Stentor Electric Mfg Co, 313 U.S. 487 (1941), federal courts exercising diversity of citizenship jurisdiction to hear state law claims must also apply the conflict-of-laws rules of the state in which the federal court sits. In a limited number of areas of federal concern, the federal courts are free to formulate an independent federal choice-of-law rule, but they nonetheless often adopt the methodology used by the forum state. Notwithstanding that multiple jurisdictions provide the source of choice-of-law rules in the USA, the approach to → choice of law in the USA for much of its history was relatively uniform, even if there were differences in the application of particular rules. However, during the 1960s, academic dissent from the philosophical premises of traditional choice-of-law theory and judicial decisions rejecting the prior system of choice-of-law rules inspired a variety of new approaches to choice of law. This transformation of choice-of-law theory and the resulting approaches to choice of law that developed became known in the USA as the ‘conflicts revolution’. The earliest formulation of US conflicts principles can be traced to Joseph Story’s (→ Story, Joseph) 19th-century treatise, Commentaries on the Conflict of Laws, Foreign and Domestic (CC Little and J Brown 1834). The 1934 First Restatement of Conflict of Laws (American Law Institute, restatement of the Law, First: Conflict of Laws, St. Paul 1934; → Restatement (First and Second) of Conflict of Laws) under the auspices of the American Law Institute and its reporter Joseph Beale built on Story’s foundation, although the theoretical conception underlying the restatement rested on a principle of vested rights of territorial application of law (→ Vested rights theory) rather than Story’s notions of → comity. That 1934 Restatement set forth an organized system of fixed, neutral and detailed choice-of-law rules based on a designated territorial contact. It offered jurisdiction-selected solutions for all types of cases, with only limited flexibility and with the objective of achieving uniformity, predictability and certainty. This traditional approach to choice of law had come under attack by a number of academic theorists throughout the 1920s and 1930s, but it was not until the 1960s that the ‘conflicts revolution’ unfolded. The first shots were fired in the significant writings of Professors Brainerd Currie (→ Currie, Brainerd) and David Cavers, and other important conflict-of-law scholars joined the cause: Professors William Baxter, Willis Reese, Robert Leflar, Arthur von Mehren and Russell Weintraub. The critics were united in their objections that fixed choice-of-law rules based on → territoriality were misconceived and could not resolve all cases; however, no single solution was offered in its place and the alternatives were varied. Both Currie and Cavers embraced ‘governmental interest analysis’ to resolve choice-of-law issues (→ Interest and policy analysis in private international law). That approach urged courts to determine whether the purpose underlying a domestic rule was furthered when foreign elements were involved. When only one state’s policy was furthered, the case was classified as a ‘false conflict’ and that state’s law was to be applied. When both states had policies that would be furthered on the particular facts, the case was designated a ‘true conflict’. Currie’s solution to the ‘true conflict’ was to apply forum law; Cavers offered certain ‘principles of preference’ to resolve such conflicts in order to achieve the same result regardless of the forum in which the case was brought. Leflar preferred a multi-factored test of which ‘interest analysis’ was a piece, but he urged application of the ‘better law’ to resolve the case (→ Better law approach). Arthur von Mehren and Russell Weintraub also accepted the distinction between ‘true’ and ‘false conflicts’ but in true conflict situations believed that a weighing of policies was the appropriate way to resolve a ‘true conflict’. William Baxter embraced ‘interest analysis’ as well, but offered a principle of ‘comparative impairment’ to resolve true conflicts. Under his approach, a court, in assessing each state’s interest, was to consider the impact on each of the respective states if its law were not used to decide the case. Courts in many states were also persuaded by the criticisms of the traditional approach to → choice of law and began to move away from application of the rigid territorially-based rules of the First Restatement. However, there was little agreement as to what approach should be adopted in its place. The American Law Institute undertook the task of producing a Second Restatement of Conflict of Laws that was begun in the 1950s, went through multiple drafts throughout the 1960s, and was eventually published in 1971 (American Law Institute, Restatement of the Law, Second: Conflict of Laws 2d, St. Paul 1971). Over the course of the next 50 years, a majority of, but not all, states followed the Restatement (Second). However, even those states that followed the Restatement (Second) differed as to whether its central concept—the state with the ‘most significant relationship’—looked to identify the state with the strongest ‘territorial’ connection or invited an analysis of competing interests as embraced in the approach of Professors Cavers and Currie. Other states adopted their own approaches to choice of law, some adopting one of the various brands of interest analysis, some looking to the state with the ‘most significant contacts’ and others retaining the traditional Restatement (First) system of hard and fast rules. The result was that no single choice-of-law regime emerged from the ‘conflicts revolution’. Rather, the effect of the choice-of-law revolution was by and large a rejection of the prior dominant regime of fixed rules but without a consensus of what should replace it. The ‘revolution’ occurred primarily in the fields of tort and contract, but its influence pervaded other areas of law as well, including wills and → trusts, inter vivos transfers of property, marriage and statutes of limitations. The ‘conflicts revolution’, like many revolutions, did not come without costs. For example, the ‘revolution’ has been described by Judge Richard Posner of the Court of Appeals for the Seventh Circuit as a ‘legal reform that miscarried’. The late Supreme Court Justice Antonin Scalia observed that the revolution had made the entire subject of conflict of laws ‘incomprehensible’.

• 

  Currie, Brainerd

  Linda J. Silberman

  Brainerd Currie (1912–1965) is credited as the originator of ‘governmental interest analysis’ (→ Interest and policy analysis in private international law) and is recognized as one of the leaders of the ‘conflicts revolution’ that transformed → choice-of-law thinking in the United States. Considered an intellectual giant, Currie, who died at 52, ignited a conflict-of-laws debate among jurists and scholars that continues long after his tragic death. His path-breaking articles, written from the 1950s to the early 1960s in leading American law reviews—including the Columbia Law Review, Duke Law Journal, Harvard Law Review, Stanford Law Review, University of Chicago Law Review and Yale Law Journal—appear together in a collection, Selected Essays on the Conflict of Laws (Duke University Press 1963)—one of the best known books in the USA on conflict of laws. In 1965, the legal honor society known as The Order of the Coif recognized Currie’s work by awarding Selected Essays on the Conflict of Laws with its first ever Triennial Coif Award for legal writing ‘that evidences creative talent of the highest order’.

• 

  Lis alibi pendens

  Linda J. Silberman

  Lis alibi pendens (meaning ‘dispute elsewhere pending’, and more commonly shortened to ‘lis pendens’) is a legal rule that allows a court to refuse to exercise jurisdiction when there is parallel litigation already pending in another forum. In some versions of the principle, notably in the EU (per the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1), the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) and the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) (→ Brussels I (Convention and Regulation))), lis pendens operates as a strict ‘first in time’ rule; in that version, once a forum is seized of an action, a court that is subsequently seized of a parallel case must stay its jurisdiction until the court first seized determines it has jurisdiction over the parties and cause of action, at which point the second court must dismiss the action. In cases not covered the Convention and Regulation, most civil law countries give the judge discretion to decline jurisdiction where the priority condition of lis pendens is met. The lis pendens rule can also encompass related cases rather than just the ‘same case’, and in such situations, courts are generally given discretion to stay or dismiss the action. Common law countries generally have not adopted a formal lis pendens rule but incorporate the fact of a prior pending action into their application of the related doctrine of → forum non conveniens.

• 

  USA

  Linda J. Silberman

  In the USA, the study of conflict of laws is divided into three general categories: (1) judicial jurisdiction; (2) → choice of law; and (3) recognition and enforcement of judgments. Judicial jurisdiction relates to the authority of a court to adjudicate a case with respect to a particular defendant or defendants, and in the USA, judicial jurisdiction has both a statutory basis (which may be either state or federal) and a constitutional dimension of limitations imposed by the US constitution. As a result, decisions of the US Supreme court have a defining role in the area of judicial jurisdiction. Choice of law involves principles that determine the application of a particular law in a case when the case is other than a purely intrastate case. Rules on choice of law are generally the province of state (and not federal) law, with each state in the USA free to adopt its own choice-of-law approach. These principles must comply with obligations and/or limitations found in the US constitution, but the Supreme Court has only intervened rarely to impose federal constitutional norms with respect to choice-of-law issues. In most states, the basic principles of choice of law are developed through case law, and those principles apply to both interstate and international cases. The two Restatements on Conflict of Laws—the First (American Law institute, Restatement of the Law, First: Conflict of Laws, St. Paul 1934) and the Second Restatement (American Law institute, Restatement of the Law, Second: Conflict of Laws 2d, St. Paul 1971) (→ Restatement (First and Second) of Conflict of Laws)—have had a substantial influence on the development of choice of law, but the Restatements themselves have no status as ‘law’ until they are adopted by a state, usually in a judicial decision. Two states—Oregon and Louisiana—have codified choice of law in some areas with statutory provisions. In a few limited areas involving federal law, federal choice-of-law principles may be the source of the applicable law. Also, when federal statutes are silent on their extraterritorial reach, courts must decide whether or not the statute applies to foreign events or transactions. The recognition and enforcement of judgments encompasses the recognition and enforcement of both sister-state and foreign country judgments, although the principles are different. The recognition/enforcement of sister-state judgments is based on the constitutional obligation imposed by the → Full Faith and Credit Clause (art iV) of the US Constitution and is therefore a national federal standard applied by both state and federal courts. Judgments of other nations do not come within the Full Faith and Credit Clause; the principles of the recognition and enforcement of foreign country judgments are dictated by the law of the state where recognition and/or enforcement is sought. Many states have adopted one of two versions of a Uniform Act on Foreign Money Judgments (UFMJRA 1962 (Uniform Foreign Money-Judgments Recognition Act (1962), 13(ii) Uniform Laws Annotated, West 2002) and the UFCMJRA 2005 (Uniform Foreign-Country Money Judgments Recognition Act (2005), 13(ii) Uniform Laws Annotated, Thomson Reuters 2016 (Supp)), which set forth grounds for the recognition and enforcement of foreign money judgments, although the Acts are occasionally adopted with variations, and the interpretation of the Act in each state is for its own courts. In non-Uniform Act states, recognition and enforcement is left to common law development. In some states a specific statute may be enacted for the judgments of a particular country. The one federal statute dealing with the recognition and enforcement of foreign country judgments is the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act, 28 United States Code Annotated SS 4101-4105, Thomson Reuters 2016 Pocket Part), which imposes certain restrictions with respect to the recognition and enforcement of foreign country defamation judgments. Custody and support judgments are the subject of specialized Uniform Acts (the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act, 9(IA) Uniform Laws Annotated, West 2009) and the UIFSA (Uniform Interstate Family Support Act, 9(IB) Uniform Laws Annotated, Thomson Reuters, 2016 Supp)) adopted in every state; they apply to both sister-state and foreign-country judgments. Federal legislation also covers child custody and child support judgments, but those statutes are limited to sister-state judgments.

• 

  Conclusion: Some Positive Thoughts about IP’s Negative Space

  Christopher J. Sprigman

  Behind the scenes of the many artists and innovators flourishing beyond the bounds of intellectual property laws Intellectual property law, or IP law, is based on certain assumptions about creative behavior. The case for regulation assumes that creators have a fundamental legal right to prevent copying, and without this right they will under-invest in new work. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity, and it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation. This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses—sensitive to their particular cultural, competitive, and technological circumstances—to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer, and thrive, in environments defined by self-regulation rather than legal rules. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.

• 

  A Presumption of Guilt: The Legacy of America's History of Racial Injustice

  Bryan A. Stevenson

  Late one night several years ago, I got out of my care on a dark midtown Atlanta street when a man standing fifteen feet away pointed a gun at me and threatened to “blow my head off.” I’d been parked outside my new apartment in a racially mixed but mostly white neighborhood which I didn’t consider a high-crime area. As the man repeated the threat, I suppressed my first instinct to run and fearfully raised my hands in helpless, terrifying submission to the barrel of a handgun. I tried to stay calm, begged the man not to shoot me, repeated over and over again, “It’s all right, it’s okay.” As a young criminal defense attorney, I knew that my survival required careful, strategic thinking, I had to stay calm. Id’ just returned home from my law office in a car filled with legal papers, but I knew the man holding the gun wasn’t targeting me because he thought I was a young professional. Since I was a young, bearded black man dressed casually in jeans, most people would not assume I was a lawyer with a Harvard Law School degree; I looked like most young black men in America. I had filled my head as a college philosophy major with the nonviolent teaching of King and Gandhi; I even thought of myself as “peace-loving.” But to the Atlanta police officer threatening to shoot me I looked like a criminal, someone dangerous and guilty. There was not legitimate reason for a police officer to point a gun at my head and threaten to shoot me in front of my apartment. I had been sitting in my beat-up Honda Civic for over fifteen minutes listening to music which could not be heard outside the vehicle. There was a delicious Sly and the Family Stone retrospective playing on a local radio station that had so engaged me I couldn’t turn the radio off. It had been a long day at work. A neighbor must have been alarmed by the sight of a black man sitting in his car and called the police. My getting out of my car to explain to the police officer that this was my home and mothering criminal was taking place is what prompted the officer to pull his weapon and start making threats. Having drawn his weapon, the officer and his partner justified their threat of lethal force by dramatizing their fears and suspicions about me. They threw me on the back of the vehicle, they searched my car illegally, and they kept me on the street for fifteen humiliating minutes while neighbors gathered to view the dangerous criminal in their midst. When no crime was discovered and nothing incriminating turned up after a computerized background check on me, I was told by the police officers to consider myself lucky. While this was said as a taunt and threat, they were right: I was lucky. People of color in the United States, particularly young black me, are burdened with a presumption of guilt and dangerousness. Some version of what happened to me has been experienced by millions of black people because of this racially biased presumption. In too many situations, black people are presumed to be offenders incapable of being victims themselves. As a consequence of this country’s historical failure to address effectively its legacy of racial inequality, this presumption of guilt and the racial narrative that created it have significantly shaped every institution in American society, especially our criminal justice system. The issue of racially motivated police violence or racial disparities in sentencing can’t be viewed simply as a consequence of bad police officers or racially biased judges. There are deep historical forces that have created the problems so clearly seen in America’s criminal justice system. There is a narrative of racial difference that contaminates the thinking of most Americans. We are burdened by our history of racial injustice in ways that shape the way we think, act, and enforce the law. Without understanding this narrative, confronting it truthfully and repairing the damage created by our history, we will never truly experience the equality and fairness we value so highly in our legal system. As in South Africa, Rwanda, and Germany, America desperately needs to commit itself to a process of truth and reparation. We need to own up to the way racial bias and legalized racial subordination have compromised our ability to implement justice. In the wake of decades of our avoiding or minimizing our history of racial injustice, communities from Ferguson to Charleston to Baltimore now bear witness to what we have wrought.

• 

  Have a Conversation, Not an Argument with the Court

  Bryan A. Stevenson

  Award-winning author Shane Read interviews thirteen of the greatest lawyers in the country who share the secrets from their most interesting cases. Everything is covered from depositions to trials to appeals. Learn new strategies that you can apply immediately in your practice. Unlike other textbooks, you will learn trial skills from actual litigation battles, not from unrealistic hypotheticals. Additional video and audio materials discussed in the book can be found at www.TurningPointsatTrial.com.

• 

  Introduction

  Bryan A. Stevenson

  This is a special Bicentennial Edition of Douglass's most famous book which has been published by his direct descendants through Frederick Douglass Family Initiatives (FDFI). It contains a never-before publicized pencil drawing of Douglass on the cover which was created by his grandson, Joseph Douglass. Joseph is the grandfather of Nettie Washington Douglass who serves as Chairwoman for FDFI. Inside this edition, Nettie narrates a family photograph section which illustrates her direct connection to both Douglass and another American icon, Booker T. Washington (she is Douglass's great-great granddaughter and Washington's great granddaughter). The Forward of this edition is written by Kenneth B. Morris, Jr., Nettie's eldest son, who describes in more detail his historical kinship to the Douglass and Washington legacies. Bryan Stevenson, author of the New York Times best-seller, Just Mercy, writes a brilliant Introduction to this Bicentennial Edition. In his piece, Stevenson connects the challenges faced by Douglass with the most problematic social injustices of our time such as mass incarceration, racial inequality, and police violence. Every ebook that is sold will help the Douglass family print and give away hardcover copies of this edition to young people as part of their One Million Abolitionists project. The Library of Congress named Narrative of the Life of Frederick Douglass one of the 88 Books That Shaped America. Published in 1845, his first autobiography became an instant bestseller putting his life in danger since he had escaped slavery just seven years earlier. The Narrative helped change the course of the U.S. Abolitionist Movement in the mid-nineteenth century and has been changing the lives of readers ever since.

• 

  Speak from the Heart to Persuade

  Bryan A. Stevenson

  Award-winning author Shane Read interviews thirteen of the greatest lawyers in the country who share the secrets from their most interesting cases. Everything is covered from depositions to trials to appeals. Learn new strategies that you can apply immediately in your practice. Unlike other textbooks, you will learn trial skills from actual litigation battles, not from unrealistic hypotheticals. Additional video and audio materials discussed in the book can be found at www.TurningPointsatTrial.com.

• 

  The American Injustice System

  Bryan A. Stevenson

  From the creator of the bestselling Day in the Life series comes an extraordinary illustrated book showing how much progress has been made in America over the last 100 years against hatred, bigotry, racism, and injustice—and how much more work remains to be done. The Good Fight vividly depicts the human face of America's sporadically violent, often triumphant, always risky struggle to fulfill the promise of freedom and equality for all. Fought in the streets, the courthouse, and the corridors of Congress, it is a story that has become America's own morality play, illustrated here through more than 180 memorable photographs, nearly 60 embedded videos, over a dozen compelling essays plus examples of music and lyrics that rallied America's resistance to injustice. For those who wish to eradicate bigotry and intolerance in America, The Good Fight is a call to action. It shows us how much we as a nation have accomplished; it also reminds us of the fragility of our success and how quickly this hard-fought progress can slip away if we do not remain vigilant. In addition, The Good Fight features a smartphone app (THE GOOD FIGHT VIEWER) that enables readers to point their smartphones or tablets at over 60 photos to immediately stream online video clips, including TED Talks, that vividly bring each story to life. This timely book captures the struggles—and the successes—experienced by women, African Americans, Native Americans, Jews, Muslims, the LGBTQ community, Latinos, Asian Americans, and the disabled. Along with the eloquent images and graphics, The Good Fight includes short guest essays from individuals representing each group.

• 

  State Regulatory Capacity and Administrative Law and Governance Under Globalization

  Richard B. Stewart

  This essay addresses global regulatory cooperation, its governance, its power dynamics, and the role of administrative law in the context of two important new initiatives: the Trans Pacific Partnership (TPP) between the United States, Japan, and eight other developed and developing Pacific Rim countries; and the proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union. While Congress has granted Trade Promotion Authority (TPA) to President Obama for both agreements, their ultimate political viability is far from assured. These two “megaregional” regimes seek to achieve trade, investment, and commercial regulatory and related objectives through a single regional institution covering a major proportion of global economic activity. The TPP agreement has been signed by representatives of the parties but requires domestic approvals. Negotiations on TTIP are ongoing. While their ultimate fate is uncertain, they represent major innovations in an era of major changes in the global economic and geopolitical landscape and weakening multilateralism. These megaregional initiatives represent the latest chapter in the globalization of regulation, a topic neglected in American administrative law courses, casebooks, and texts. Jerry Mashaw has written a book on another hidden world of American administration and law—that of the nineteenth century. This essay seeks to help correct a similar neglect by examining the global character of the administrative constitution in the twenty-first. Much of Jerry’s work has addressed state capacity to deliver regulatory protections and economic security to citizens, as well as the contributions of managerial and decision-analytic approaches that constitute part of the internal law of administrative governance, as contrasted with exogenous requirements such as trial-type hearings, notice and comment rulemaking, and judicial review. Internally generated norms and methods of governance are especially important in the global administrative space, where regulatory bodies operate outside the system of domestic legislatures and courts and global equivalents to those institutions are lacking. As Mashaw observes, “[g]lobal administrative law almost necessarily imagines that there is a normative core of responsible and responsive administrative practice that can be identified and implemented without necessarily making administrative institutions accountable either to elected representatives or to courts having broad jurisdiction to review their decisions,” since, at “the global level, these political and legal constraints hardly exist.” This essay discusses how the developing body of global administrative law responds to the challenges of regulatory globalization in the specific context of TTIP and TPP, including the contributions of US innovations in internal administrative governance, such as regulatory impact analysis (RIA) and quantitative risk assessment. States seek continually to renew and strengthen their regulatory capacities in order to secure economic prosperity and protect their citizens against harm and insecurity. Under conditions of global integration, they cannot achieve these goals unilaterally. They must engage with other jurisdictions in order to promote global trade and investment and address transnational market failures. In order to enhance their ability to secure prosperity and protection for their citizens, states must surrender greater or lesser control over regulatory programs to other states through international trade and regulatory organizations, intergovernmental regulatory networks, or various bilateral arrangements. These global regulatory arrangements manifest in new form the iron law of regulatory agency: political principals can enhance their power and performance only by devolving more and more authority, regulatory technology, and discretion to agents. The history of administrative law represents a series of innovations to manage the progressively more serious agency costs that result. Global regulatory programs escalate agency costs and multiply the challenges for administrative law in keeping pace in ensuring accountable and responsive regulatory decisions. This challenge is complicated by the circumstance that regulatory authority is a species of power not only vis-`a-vis the regulated but also against competing regulatory jurisdictions. The globalization of regulation accordingly generates geopolitical rivalry. States that dominate regulatory governance of the global economy can use it to advance their economic, ideological, and strategic interests. International regulatory cooperation inevitably inherently involves rivalry and potential conflict. The current arrangements for global regulatory governance also pose serious equity issues. By and large, less powerful states must dance to the tunes of the more powerful. The kaleidoscopic array of global regulatory programs exhibits a systemic imbalance between prosperity and protection, serving the interests of well-organized economic actors and disregarding environmental, health, and social harms, as well as adverse distributional consequences generated by economic globalization. TTIP and TPP must be analyzed and evaluated through these positive and normative frameworks. Their primary aim is to liberalize trade and promote investment through a broad suite of measures: decreasing tariffs (to zero in the case of TPP); reducing very significant nontariff barriers created by domestic regulatory differences and impediments to trade in goods and services; liberalizing domestic regulation and administration, including by promoting transparency and anti-corruption; addressing structural barriers, including those created by government procurement policies, state-owned enterprises, and, potentially, state industrial policies; promoting development of global supply chains and e-commerce; coordinating competition law programs; and enhancing protection for investment and intellectual property. TTIP and TPP also contain measures to prevent erosion of environmental and labor standards as a result of enhanced economic integration. Equally important, TTIP and TPP provide innovative institutional arrangements for ongoing regulatory cooperation among the parties with a hub-and-spoke design comprising a central supervisory and coordinating body and task forces composed of domestic regulators in specific sectors. In their scope, ambition, and design, TTIP and TPP go significantly beyond previous regional trade-regulatory cooperation models such as NAFTA, Mercosur, and recent bilateral Free Trade Agreements (FTAs) initiated by the United States or the European Union; they accordingly justify the label “megaregional.” TTIP represents an effort by the European Union and the United States to compensate for their loss of preeminence in the World Trade Organization (WTO) and other multilateral trade and regulatory bodies by leveraging their combined market power to promote neoliberal economic regulatory policies against the challenge of China and other emerging economies. The aim is not only to stimulate transatlantic economic growth but also to generate regulatory standards and methods that achieve global currency, potentially marginalizing existing multilateral regulatory bodies in the process. Through TPP, the United States, in partnership with Japan and a group of OECD countries and fast-growing developing countries, seeks to stimulate the participants’ economic growth, promote its international economic policy agenda in the Asia-Pacific region, and counter the growing regional power of China, with the potential for using TPP as the foundation for an encompassing Pacific Free Trade Agreement that could include China. Both TTP and TTIP have attracted significant criticism and opposition in the European Union, the United States, and some other TPP countries as industry-dominated ventures that will afford unjustified protections to intellectual property rights in foreign investment; harm labor, consumers, health, and the environment; and undermine the authority of domestic political and legal institutions. This essay first addresses the economic, geopolitical, and regulatory protective drivers of regulatory globalization. It then examines the various institutional forms that international regulatory cooperation has taken, including the new generation of megaregional regimes, represented by TTIP and TPP. Next, it considers some of the structural consequences of regulatory globalization, including the imbalance between the promotional and protective functions of regulation, increases in agency costs, and the resulting challenges for administrative governance and law. It then considers these challenges in the specific context of TTIP and TPP, including their internal governance, their relation with domestic administrations and administrative law, and their consequences for nonparty countries. It discusses how megaregional regimes pose novel challenges for domestic systems of administrative law by further shifting regulatory decision making to global institutions and creating potentially significant agency costs. It examines how familiar, as well as new, administrative law techniques can be deployed to promote greater accountability and responsiveness by global regulatory decision makers in TTIP, TPP, and other global regulatory regimes. The discussion considers the importance of the internal law of administration, including US innovations, such as regulatory impact analysis and quantitative risk assessment, and how they can play an important and constructive role in the mega regionals. A conclusion follows.

• 

  Derogatory to Professional Character? The Evolution of Physician Anti-Patenting Norms

  Katherine J. Strandburg

  Physicians have a long history of opposing medical patenting. When the American Medical Association was formed in 1847, one of its first acts was to adopt a Code of Ethics stating that it was “derogatory to professional character” for physicians to hold patents “for any surgical instrument or medicine.” Opposition to patents on drugs and medical devices subsided in the early twentieth century and the ethical strictures against drug and device patents were removed. Indeed, physicians now are co-inventors on a sizeable fraction of important medical device patents. While the ethical bans on physician patenting of drugs and devices are a thing of the past, the norm against patenting medical procedures has remained surprisingly robust. As I have described in more detail elsewhere, in the 1990s, a physician movement against medical procedure patents led to the enactment of a statutory provision exempting healthcare workers from infringement remedies for such patents. More recently, medical associations weighed in against the patentability of diagnostic methods in Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc. and Mayo Collaborative Servs. v. Prometheus Labs., Inc. Why is it acceptable for physicians to patent drugs and devices, but not medical procedures? This chapter hypothesizes that the evolution of physician ethical norms about patenting in the United States can be best understood through the lens of user innovation. Studies have shown that “user innovators,” whose motivation for invention comes primarily from their use of a technology, often form reputation-based communities in which the norm is to share one’s inventions and patenting is frowned upon. There are a number of plausible reasons for this choice. First, user innovators benefit from a sharing norm because they can use the inventions shared by other community members. Second, by sharing their inventions with the community, user innovators obtain feedback and suggestions for improvement. Third, sharing a valued innovation with a user community boosts a user innovator’s reputation within the community and sometimes even among the broader public. Depending upon the particular community, a reputational boost may lead to non-pecuniary or monetary rewards (or both). Patents may be both costly and dangerous to the viability of a user innovator community with a reputation-based sharing norm. They may introduce transaction costs and deadweight loss without an offsetting increase in innovation or tempt community members to defect from the sharing regime in favor of an exclusivity-based monetary reward. During the mid-nineteenth century, physicians were the primary innovators of drugs, devices, and procedures for use in treating their patients. Like other groups of user innovators, they formed a reputation-based community with a norm of sharing their innovations. The norm and its enforcement are illustrated by the famous dispute over the patenting of ether anesthesia. During the twentieth century, pharmaceutical companies and medical device manufacturers became major contributors to drug and device innovation. The anti-patenting norm was not enforceable against these companies, who wanted to sell, rather than use, their inventions and were not interested in the physician community’s reputational rewards. The demise of the ethical ban on drug and device patents was a natural response to these developments. The robustness of the ethical norm against patenting medical and diagnostic procedures is also understandable from a user innovation perspective. Medical procedure innovation remains primarily the province of physician user innovators who can both benefit from and enforce a sharing norm.

• 

  The Consortium of Eosinophilic Gastrointestinal Disease Researchers (CEGIR): An Emerging Knowledge Commons

  Katherine J. Strandburg and Stefan Bechtold

  This chapter reports our study of the Consortium of Eosinophilic Gastrointestinal Disease Researchers (CEGIR), which is part of the NIH Rare Diseases Clinical Research Network (RDCRN). CEGIR addresses eosinophilic gastrointestinal diseases (EGIDs), the most common and well studied of which is eosinophilic esophagitis (EoE). Strandburg, Frischmann, and Cui (2014) previously studied the Urea Cycle Disorder Consortium (UCDC), while the North American Mitochondrial Disease Consortium (NAMDC) is the subject of the previous chapter in this book. While there are many similarities between the goals of these consortia and their general structures, there are also significant differences in the underlying challenges they face and the approaches they take to those challenges. These studies also provide snapshots at different stages of consortium development: The UCDC, funded in 2003, was among the first RDCRN consortia and was well into data collection at the time of our study. NAMDC began operations in 2011 and is engaged in constructing its pool of research subjects, patient data, and biospecimens. CEGIR was funded in 2014 and had been in operation for less than a year at the time of this study.

• 

  The North American Mitochondrial Disease Consortium: A Developing Knowledge Commons

  Katherine J. Strandburg and Brett M. Frischmann

  Rare diseases number between 5000 and 8000. Each affects fewer than 200,000 individuals, but in the aggregate, they affect millions. As summarized in a National Academies Report, Rare Diseases and Orphan Products: Accelerating Research and Development: “Because the number of people affected with any particular rare disease is relatively small and the number of rare diseases is so large, a host of challenges complicates the development of safe and effective drugs, biologics, and medical devices to prevent, diagnose, treat, or cure these conditions. These challenges include difficulties in attracting public and private funding for research and development, recruiting sufficient numbers of research participants for clinical studies, appropriately using clinical research designs for small populations, and securing adequate expertise at the government agencies that review rare diseases research applications or authorize the marketing of products for rare conditions.” Information sharing, collaboration, and community building among researchers, doctors, and patients are critical to rare disease research. The Rare Disease Clinical Research Network (RDCRN) is an NIH program aimed at developing infrastructure and methodologies for rare disease clinical research by creating a network of research consortia. Each RDCRN consortium (RDCRC) involves researchers, other health care professionals, and patients at a group of geographically dispersed clinical sites. Medical knowledge is a nonrivalrous resource, which can be used to treat any number of patients without diminishing its value to others. RDCRCs nonetheless face resource governance challenges, including (1) managing rivalrous inputs, such as research funding and researcher time; (2) managing rivalrous incentives and rewards, such as authorship credit; (3) overcoming incentives to hoard scarce access to patients and their data; (4) reducing the transaction costs of cooperation between widely dispersed researchers; and (5) managing interactions with outsiders, such as pharmaceutical companies. All scientific research confronts tensions between the need to apportion scarce, rivalrous resources and the value of sharing nonrivalrous research results and certain infrastructural data and tools broadly. Mechanisms for managing this tension include public funding, reputation-based systems of peer review and publication, and scientific community norms. In clinical research, additional tensions between the value of the research and potential risks to research subjects are addressed by informed consent regulation, professional ethics prioritizing duty to patients, and institutional review boards (IRBs). These form part of the backdrop for the RDCRN and its associated consortia. We previously studied the Urea Cycle Disorder Consortium (UCDC). Here we focus on the North American Mitochondrial Disease Consortium (NAMDC). The next chapter in this book studies the Consortium for Eosinophilic Gastrointestinal Disease Research (CEGIR). While there are many similarities between these consortia, which face common rare disease research problems and are structured by the RDCRN, there are also significant differences in the underlying challenges the groups face and the approaches they take to those challenges. The UCDC is much better established than the NAMDC and emerged from a history of greater previous cooperation. CEGIR is very new, but, like the UCDC, emerged from a close-knit group of researchers. Mitochondrial disorders are complex, varied, and difficult to diagnose, much less treat. The diseases studied by UCDC and CEGIR are comparatively well understood, with relatively well-accepted diagnostic criteria and targets for treatments. The consortia also have leaders with different styles and personalities and different governance structures.

• 

  The Knowledge Commons Framework

  Katherine J. Strandburg, Brett M. Frischmann, and Michael J. Madison

  This chapter sets out the knowledge commons framework that forms the foundation for the case study chapters that follow. The framework is inspired by and builds in part on the Institutional Analysis and Development (IAD) approach pioneered by Elinor Ostrom and her collaborators for studying commons arrangements in the natural environment. The version of the framework set out in this chapter closely tracks the version published as chap. 1 of Governing Knowledge Commons, and in an earlier paper, with some important updates and revisions added to reflect lessons learned in the course of conducting the case studies published in that book. By reproducing and further refining the framework here, we hope to inspire future researchers to adopt, extend, and continue to refine it. The systematic approach to case study design and analysis provided by the knowledge commons framework aims to structure individual case studies in a useful and productive way and to make it possible eventually to produce generalizable results. Comparing and aggregating case studies performed according to the knowledge commons framework should enable an inventory of the structural similarities and differences between commons in different industries, disciplines, and knowledge domains and shed light on the underlying contextual reasons for the differences. This structured inquiry provides a basis for developing theories to explain the emergence, form, and stability of the observed variety of knowledge commons and, eventually, for designing models to explicate and inform institutional design. In addition, an improved understanding of knowledge commons should facilitate a more complete perspective on intellectual property (IP) law and policy and its interactions with other legal and social mechanisms for governing creativity and innovation.

• 

  International Competition Convergence Pathways, Challenges, and Prospects for Success

  Randy Tritell, Terry Calvani, Eleanor M. Fox, Andreas Mundt, and John Temple Lang

  This volume contains the proceedings and papers of the Forty-Third Annual Fordham Competition Law Institute, including the second annual economics workshop and a unique focus on the future of antitrust in Asia. About the Proceedings: Every October the Fordham Competition Law Institute brings together leading figures from governmental organizations, leading international law firms and corporations and academia to examine and analyze the most important issues in international antitrust and trade policy of the United States, the EU and the world. This work is the most definitive and comprehensive annual analysis of international antitrust law and policy available anywhere. The chapters are revised and updated before publication, where necessary. As a result, the reader receives up-to-date practical tips and important analyses of difficult policy issues. The annual volumes are an indispensable guide through the sea of international antitrust law. The Fordham Competition Law Proceedings are acknowledged as the most definitive US/EU annual analyses of antitrust/competition law published. Each annual edition sets out to explore and analyze the areas of antitrust/competition law that have had the most impact in that year. Recent “hot topics” include antitrust enforcement in Asia, Latin America: competition enforcement in the areas of telecommunications, media and information technology. All of the chapters raise questions of policy or discuss new developments and assess their significance and impact on antitrust and trade policy.

• 

  Lessons from Chinese Growth: Rethinking the Role of Property Rights in Development

  Frank K. Upham

  This chapter addresses two questions that arise from China’s more than thirty years of economic growth without a robust property rights regime. First, should social scientists rethink the conventional wisdom about the economic role of property rights? Second, if so, can China’s experience with property law serve as a model for other developing countries? In other words, does it make sense to think in terms of a “Beijing Consensus” on the role of property rights in development that would replace the Washington Consensus, which dominated development economics from the 1980s to the turn of the century? To cut to the chase, my answers are yes and not really. The chapter proceeds as follows. Part I reviews the current conventional wisdom on property and development. Part II summarizes the evolution of China’s formal property law over the high-growth period. Part III compares the actuality of law’s role in China with the role that conventional wisdom would predict with particular attention to three areas. The first area is the interaction between what I call bureaucratic order and formal law; the second area is the nature of informal property rights in investment, one in the township and village enterprises of the early reform period and the other in foreign direct investment in contemporary China; the third area is the creation and sustainability of informal and illegal land markets in Chinese cities. Part IV discusses whether the deviations from social science theory found in Part III represent simply a variation on expected general patterns or are so different in nature that they demand a fundamental rethinking of the doctrine. Part IV concludes provisionally that China presents a fundamental challenge to the status quo of development theory, at least as that theory has been put into practice by the vast majority of first world law reform practitioners. Part V addresses the fundamental question surrounding this publication: should social scientists use the data of Chinese economic growth to create a “Beijing Consensus”?