Faculty Chapters

Follow

• 

  John Locke

  Jeremy Waldron

  Political Thinkers is the most comprehensive introduction to Western political thought written by a team of internationally renowned scholars. The third edition provides students with a clear and engaging introduction to the canon of great theorists, from Socrates and the Sophists to contemporary thinkers such as Rawls and Arendt. Each chapter begins with a helpful chapter guide, a biographical sketch of the thinker, a list of their key texts, and their key ideas. Part introductions and a concluding chapter enable readers to understand the social and political contexts that inspired political thinkers to write. The third edition features two brand new chapters on Hannah Arendt, one of the most influential philosophers of the twentieth century, and Hugo Grotius, whose work on just war continues to inform international law today.

• 

  The Cosmopolitanisms of Citizenship

  Jeremy Waldron

  Recovering the cosmopolitanism of the medieval Catholic university, Jeremy Waldron offers an eloquent update of what Hollinger would call the “old” cosmopolitanism that is both particular and universal. For him, differences have been overvalued. Whatever their usefulness to a grade school teacher introducing children to the larger world, differences may not define how actual people around the world see themselves or experience the world. Monotheisms link very diverse societies. Scientific knowledge is universal: there is no Swedish physics or Namibian chemistry, just chemistry and physics. World trade has made many commodities universal. These are the real material basis for a cosmopolitanism that need not after all deny its founding universalism. The critics of Martha Nussbaum are wrong to think that cosmopolitanism requires a world state. Religion, science, and commerce are doing the job of grounding it and making it concrete.

• 

  Dialogical Epilogue

  Joseph H. H. Weiler

  Given the crises shattering the European Union since several years, from the financial crisis up to the refugee crisis and the vote on Brexit, Euro-scepticism and rejection are growing; a pending crisis of legitimacy compels us to analyse not only causes but also the potentials of enhancing legitimacy. This volume originates from contributions and discussions of two conferences held by the European Constitutional Law Network (ECLN). It reaches from foundational questions of democracy theory, an analysis of the causes of the crises and of the role of the judiciary in coping with the crisis, the protection of fundamental rights of the Union citizens and their better inclusion and participation through digitization, up to concrete reform proposals. A dialogical epilogue of Joseph Weiler with some of the authors strives to stimulate further discussion and reflection, as needed in the coming years if the EU is to overcome the crises and develop further as a democratic Union of citizens. With contributions by Giacinto della Cananea, Tom Eijsbouts, Federico Fabbrini, George Gerapetritis, Anna-Maria Konsta, George Karavokyris, Mattias Kumm, Jean-Victor Louis, Miguel Poiares Maduro, Antonis Manitakis, Ana Maria Guerra Martins, Lina Papadopoulou, Ingolf Pernice, Joseph H. H. Weiler and Jiri Zemánek.

• 

  Four Dogmas or Heresies in the Discussion of Secularism and Religion

  Joseph H. H. Weiler

  One person’s dogma is another’s heresy. So it is with any discourse of religion and even more so in the discourse of secularism and religion. So, I wish to strip any normative patina which attaches to these words. I use them simply because I want to address some of the most commonly and strongly held assumptions and positions underlying this discourse. This afterword does not set out to summarise the rich contributions to this volume nor to take direct issue with any particular one. And yet, there is no idea or proposition in this afterword which is not inspired by, or does not take issue with, at least one of these contributions and in this respect it may be seen as a veritable dialogical epilogue (even if monological in form) to the collection of essays. Blessedly, the volume does not speak with one voice and displays a rich variety not only of sensibilities but also of distinct framings, normative positions and analytical moves. It is a microcosm of the general debate which has come to the fore in our societies IN the recent one or two decades after a rather long lull when the issues seemed to be dormant. The reasons for this revival are clear enough, not least—in no order of importance—the advent of large scale immigration, the rise of the ‘identity’ issue in public sentiment, public discourse and politics and the prominent role which courts, national and transnational, have assumed in the debate. Both as cause and effect, religion has suddenly moved closer to the centre of political discourse and disputation in Europe—something relatively novel. I will proceed by addressing four interconnected themes underlying many of the discussions. Inevitably, some issues and propositions will run through all four heresies/dogmas.

• 

  Quos Deus Vult Perdere, Prius Dementat—Brexit and Its Aftermath: Keynote Speech

  Joseph H. H. Weiler

  The original of the refrain in the title, in Sophocles’ Antigone—τὸ κακὸν δοκεῖν ποτ᾽ ἐσθλὸν τῷδ᾽ ἔμμεν' ὅτῳ φρένας θεὸς ἄγει πρὸς ἄταν (evil appears as good in the minds of those who gods lead to destruction)—is actually more subtle for it places at least some of the responsibility for our self-destructive behaviour in the hands of us, mortal humans. And what is madness in the affairs of State? Here I will borrow from Carlo Cipolla’s classic Basic Rules of Human Stupidity: A course of action is wise when it brings benefits to you as well as to others. It is malevolent but not irrational if it brings benefit to you and harm to others. It is plain and simply stupid when it causes harm to others as well as to yourself. Pick any of the three versions above and, I would submit, it applies to Brexit and its aftermath.

• 

  Secessionism and Its Discontents

  Joseph H. H. Weiler

  This is the first book to jointly scrutinise two existential issues for the EU: withdrawal of a member state (i.e. Brexit) and territorial secession (affecting Scotland, Catalonia and beyond). The book applies normative and empirical analyses, explores new approaches and discusses the deep theoretical problems unleashed by these processes. Featuring a superb constellation of legal and political science scholars, the book combines specific legal analysis and considers the political dynamics behind the processes. It provides extensive coverage and sophisticated analysis of the interpretation of Article 50 and the possible consequences it may have. The implications of withdrawal and secession on EU citizenship are discussed in depth and there is an overview of the evolving nature of the relationship between the regions and the EU. Finally, there is an engaging normative discussion on the deeper meaning of these two processes with respect to the objective of European integration.

• 

  The Transformation of Europe Revisited: The Things That Do Not Transform

  Joseph H. H. Weiler

  The Transformation of Europe, published in 1991 in the Yale Law Journal, was ten years in the making. Its infant version was in EUI Working Paper No 2 from 1981 titled ‘Supranationalism Revisited: Retrospective and Prospective—The European Communities after Thirty Years’. It went through various iterations such as ‘The Community System: The Dual Character of Supranationalism’, which appeared in the recently born Yearbook of European Law, later in Il Sistema Comunitario Europeo—Struttura Giuridica e Processo Politico (Il Mulino, 1985), and then, in its final and mature version in 1991 as Transformation, after which I had had enough and moved on to other themes. Given the immodest ambition of that project, to revisit Transformation is to revisit the European system and in a sense to revisit the transformation of my own thinking of that system. Transformation has had no shortage of critics—Daniela Caruso’s spectacular The Missing View of the Cathedral being a memorable early legal critique, and ending with Alec Stone Sweet and Dan Kelemen’s very generous critique in this volume. No one to circle the wagon, my own work subsequent to Transformation could be read as a slow dismantling of what was left of cathedral. Even on such foundational notions such as how to read Van Gend en Loos I have come to understand (and teach) things differently. But some things have remained untransformed in my own thinking and, I believe, in European integration. Transformation posited as its foundational explanatory key to understanding the success of the European construct, the equilibrium between legal structure (as a proxy for the institutional edifice of European integration) and legitimation rooted in national polities. When in subsequent work I proposed a normative theory of European integration (‘To Be a European Citizen’; ‘Constitutional Tolerance’), the robust ‘survival’ of the of the national demos in a system of multiple demoi, and legitimation in national polities and politics was posited not as a necessary evil, but as the defining element in the normative originality and nobility of European integration, and its distinguishing feature from all other federalisms in which the federal demos tends to dominate legally and oftentimes even to obliterate culturally and socially all others. I still believe that that woefully underspecified concept of ‘legitimacy’ is an indispensable element of any understanding of the European construct since it is the indispensable oxygen, the political reservoir to which we reach out in times of crisis for it is that which allows the adoption of policies which are not popular and go outside the normal cycles of democratic politics. The quest for understanding legitimacy in the context of European integration is thus another untransformed element in my intellectual wanderings. In my current work I have come to understand the tragic nature of the European construct. A satisfactory democratic legitimation will, I have come to think, necessarily come at the expense of the normative nobility of constitutional tolerance. Turning then (yet again) to legitimacy, European discourse employs two principal concepts: input (process) legitimacy and output (result) legitimacy. I wish to add a third, less explored, but in my view central legitimating feature of Europe—political messianism. I propose to explore, in turn, each of these forms of legitimacy in their European context, and in relation to each show why, in my view, they are exhausted, inoperable in the current circumstance. The current crisis overwhelms current thinking of European integration. A larger perspective may, thus, be of some utility. But even in the context of the current crisis, whereas Europe requires European solutions, if these are to be successfully adopted, they will require an employment of legitimacy resources to be found within national communities. To the extent that these national resources will be found to be depleted, the crisis we are facing will remain not only insoluble but existential.

• 

  United in Fear—The Loss of Heimat and the Crises of Europe

  Joseph H. H. Weiler

  Given the crises shattering the European Union since several years, from the financial crisis up to the refugee crisis and the vote on Brexit, Euro-scepticism and rejection are growing; a pending crisis of legitimacy compels us to analyse not only causes but also the potentials of enhancing legitimacy. This volume originates from contributions and discussions of two conferences held by the European Constitutional Law Network (ECLN). It reaches from foundational questions of democracy theory, an analysis of the causes of the crises and of the role of the judiciary in coping with the crisis, the protection of fundamental rights of the Union citizens and their better inclusion and participation through digitization, up to concrete reform proposals. A dialogical epilogue of Joseph Weiler with some of the authors strives to stimulate further discussion and reflection, as needed in the coming years if the EU is to overcome the crises and develop further as a democratic Union of citizens. With contributions by Giacinto della Cananea, Tom Eijsbouts, Federico Fabbrini, George Gerapetritis, Anna-Maria Konsta, George Karavokyris, Mattias Kumm, Jean-Victor Louis, Miguel Poiares Maduro, Antonis Manitakis, Ana Maria Guerra Martins, Lina Papadopoulou, Ingolf Pernice, Joseph H. H. Weiler and Jiri Zemánek.

• 

  Ethical Duties to Climate Migrants

  Katrina M. Wyman

  This chapter surveys the philosophically oriented literature analyzing the duties of states to climate migrants. More specifically, it discusses the responses that have been given to three questions: (1) What is the ethical basis on which countries are obligated to assist climate migrants from other states? (2) What is the scope of the rights that climate migrants enjoy to resettle elsewhere, in particular is the right an individual or a collective right to resettle? And (3) how should obligations to climate migrants be allocated among countries? The chapter concludes by emphasizing that the existing literature is focused on the obligations owed to, and the rights enjoyed by, migrants from the small island states that are existentially threatened by climate change. The focus of the literature should be broadened to consider the responsibilities that states owe to migrants in other situations.

• 

  Proportionality

  Alison L. Young and Gráinne de Búrca

  When asked to choose a general principle which has most influenced the development of public law across Europe, it seems difficult—one might almost say manifestly disproportionate—to choose any principle other than proportionality. It is hard to deny the influence of proportionality, both as a general principle of EU law which pervades the case law of the European Court of Justice and as the means through which the European Court of Human Rights determines whether restrictions placed on Convention rights are ‘necessary in a democratic society’. As such, proportionality is a principle which is frequently applied by domestic courts, even within those legal systems that have not adopted a specific or general test of proportionality. And once courts have had experience of applying proportionality, it seems almost inevitable that the principle will expand its influence into domestic law. It seems also hard to conclude, in view of the extensive literature on the topic, that proportionality is anything other than a modern invention, an indication of the willingness of the judiciary to subject discretionary decisions of the administration to a more searching scrutiny. Proportionality, therefore, appears to be part of the recent move towards greater accountability, with more emphasis being placed on the enforcement of the rule of law by the judiciary in order to control actions of both the legislature and the executive. Proportionality is also seen by many as closely linked to the protection of human rights, both in terms of its role in decisions of the European Court of Human Rights and its influential role in German law. Hence if there is a tale to tell of the influence of proportionality, it seems to be one of its growing influence across Europe, leading to greater judicial scrutiny, more accountability and a stronger protection of human rights. We hope that this collection of essays goes some way to telling a more nuanced, if not a different story. Although it is hard to deny the influence of the European Union and the European Convention on Human Rights (ECHR), it is not necessarily true that proportionality has its origins in German jurisprudence, or that the growing influence of the principle is due solely to the role of the European Union and the ECHR. Nor is the influence of either the Strasbourg or the Luxembourg courts the same across the Member States of the European Union and the signatory states of the ECHR. And while it is clear that there is a connection between proportionality and human rights, it is not the case that proportionality is inevitably linked with human rights. When analysing different jurisdictions and the application of the proportionality test in the European Union we also see a role for proportionality in enforcing an aspect of distributive justice, ensuring in particular that administrative policies do not impose manifestly disproportionate burdens on particular individuals or groups. And whilst there may be, broadly speaking, a consensus surrounding what the test of proportionality comprises in the context of the ECHR, there is not necessarily a consensus surrounding the nature of the test of proportionality beyond this, particularly as concerns the connection between proportionality and the judicial control of rationality. Nor is the test of proportionality without its critics. If we learn anything from the fresh set of narratives contained in the chapters which follow, it is that the principle of proportionality is multifaceted and that a better understanding of its nature and practice may only be gleaned from separating out its different elements, assessing the extent to which different understandings of proportionality are suited to different subject matters, and examining how they are articulated and applied within different legal systems.

• 

  The "Dost Test" in Child Pornography Law: "Trial by Rorschach Test"

  Amy M. Adler

  This Chapter considers a pivotal but deeply problematic aspect of the definition of “child pornography”: the six factor “Dost test.” Although never considered by the Supreme Court, the Dost test, developed by a California district court, has become a key feature of child pornography law, adopted by virtually all state and lower federal courts as part of the definition of child pornography. Despite the near universal adherence to Dost, however, I argue that deep and unrecognized problems plague the test. Through a close reading of decisions applying the Dost factors, I show that these cases reveal startling uncertainties at the core of the test. Ultimately, I show that these uncertainties pose severe and unrecognized free speech problems. In my view, many cases decided under Dost may be unconstitutional in light of Supreme Court precedent; the definition of child pornography has become divorced from the Court’s foundational rationale for why we may ban this material consistent with the First Amendment.

• 

  Beware: Boundary Crossings

  José E. Alvarez

  This essay addresses the tools by which international lawyers engage in interpretative “boundary crossings” across distinct international regimes, such as those involving trade, investment, and human rights. It distinguishes the traditional tools of treaty interpretation, such as those licensed by the Vienna Convention on the Law of Treaties (VCT), that encourage interactions between trade and international investment law (such as the VCT’s Art. 31(3)(c), from some more innovative interpretations now proposed by self-identified “public law” scholars. Drawing on examples of boundary crossings pursued recently by investor-state arbitrators and the International Law Commission, it warns against interpretative boundary crossings that go against the object and purpose, remedies or organizational structures of the underlying regimes. It argues that such interpretative linkages, however well-meaning, may not be as “progressive” as anticipated.

• 

  International Organizations and the Rule of Law: Challenges Ahead

  José E. Alvarez

  This essay revisits a few of the themes canvassed in the Xiamen General Course that I was honored to give in the summer of 2013. Inter-governmental organizations (IOS), defined here to include those entities that aspire to global and not only regional reach such as those of UN system, have changed how the international community makes, interprets, and enforces international law. As is well known, the world has “turned to institutions” at least in the course of the 20th century. Most recently, that turn includes increasing reliance, albeit not for in all regions or for all states, to forms of international adjudication, including 24 permanent international courts and other quasi-judicial adjudicators such as committees under human rights treaties. These international institutions have helped to change the sources of international obligation, the process by which international law is produced, the types of actors involved in such processes, the ways legal rules are enforced or implemented, as well as international law’s effectiveness. At the same time, those who established these institutions sought to use them to de-politicize international disputes and promote a turn to the rule of law at the international level. This essay connects these two developments, suggesting that the IO challenge to legal positivism relates to the daunting difficulties faced by those seeking to establish the “international rule of law.” It argues that, paradoxically, the ways that IOS have sought to make law highlight the looming challenges these IOS face with respect to realizing and subjecting themselves to the rule of law. If today we question, with good reason, whether the ‘international rule of law’ exists, one reason for doubts may be the ways that IOS engage in ‘law-making.’ Part 1 below describes the basic tenets of legal positivism and how institutionalized international legal processes deviate from those tenets–and common understandings of the sources of international legal obligation enumerated in the ICJ’s Statute. Part 2 describes the traditional elements of the rule of law, compares these to the legal products produced by IOS, and identifies the difficulties that IOS face in satisfying rule of law expectations that they themselves have generated. A brief conclusion addresses the resulting ‘rule of law’ challenges that IOS face.

• 

  The Proposed Independent Oversight Mechanism for the International Criminal Court

  José E. Alvarez

  Securing the accountability of one particular kind of international organization, namely international courts, raises unique issues, as is suggested by ongoing efforts to establish supervisory mechanisms within the International Criminal Court (ICC). The Independent Oversight Mechanism (IOM) for the ICC, as originally proposed, would have enabled a subsidiary of the Court’s political organ, namely the Assembly of States Parties, to have independent investigatory capacity over members of the staff of the Prosecutor of the ICC without the need for prior approval of the Prosecutor. This would have been inconsistent with the provisions of the Rome Statute granting the independence of the Office of the Prosecutor and would have been unwise. The proposed IOM contains other uncertainties or ambiguities that should be resolved. International lawyers need to devote attention to these institutional matters lest the independence of the Prosecutor, and of the Court itself, be undermined.

• 

  Misunderstanding Cultures: Islam and the West

  Kwame Anthony Appiah

  This article aims to explain why the idea of the West is, for historical and philosophical reasons, an obstacle to dealing with the dangers posed by radical Islamists. Every proposed theory of the West has to account for the great internal cultural diversity both of European cultures and of those influenced by them around the world; and every serious historical account both of Europe and of Islam has to recognize the long-standing, substantial and ongoing interdependence of their intellectual and religious traditions. As a result, what is needed to face extremists, whether inside or outside Europe (and whether Christian, Muslim or neither), is not an opposition between Islam and the West, but an alliance of those of all faiths and none who can live with and tolerate cultural difference against those, wherever they live and whatever their religion, who cannot.

• 

  Respecting Gay People: Justice and the Interpretation of Scriptural Traditions

  Kwame Anthony Appiah

  Arguably the most transformative force in contemporary society is the commitment to justice through diversity. A prime example is the change justice through diversity has wrought on who enters, teaches and administers the university. It has changed the content of what is taught and the mission statements that define the purpose of higher education. What is rarely defined, however, is justice and how it is related to diversity. If justice is equality, are all differences equal? Are all differences in race, gender, sexual orientation, national origin, ethnicity, religion and culture equal? Should such differences be weighted differently and thus hierarchically? On what basis are those differences to be weighted and ranked to ensure equality? Justice Through Diversity brings together a Who's Who of contemporary scholars to explore these questions and others in an attempt to understand one of the central commitments in the modern world.

• 

  The 'Silver Spoon' Tax: How to Strengthen Wealth Transfer Taxation

  Lily Batchelder

  Wealth transfer taxes are a critical policy tool for mitigating economic inequality, including inequality of opportunity. They are also relatively efficient. This essay summarizes why and how wealth transfer taxes should be strengthened. Reform options that our next President should consider include increasing the wealth transfer tax rate, broadening the base, repealing stepped-up basis, addressing talking points against wealth transfer taxes with little or no factual basis, and converting the estate and gift taxes into a direct tax on the recipients of large inheritances.

• 

  The Holdup Game

  Richard R. W. Brooks

  Ronald H. Coase was one of the most innovative and provocative economists of the twentieth century. Besides his best known papers on ‘The Nature of the Firm’ and ‘The Problem of Social Cost’, he had a major role in the development of the field of law and economics, and made numerous influential contributions to topics including public utilities, regulation and the functioning of markets. In this comprehensive Companion, 31 leading economists, social scientists and legal scholars assess the impact of his work with particular reference to the research programs initiated, the influence on policymakers, and the challenge to conventional perspectives.

• 

  Conceptualizing Political Risk Insurance: Toward a Legal and Economic Analysis of the Multilateral Investment Guarantee Agency (MIGA)

  Efraim Chalamish and Robert L. Howse

  Over the last decade, there has been, especially among legal academics, an enormous expansion of scholarly attention to investor-state arbitration under bilateral investment treaties (BITs) and regional trade agreements. At the same time, very little research or analysis has been devoted to stabilization clauses but much less still to political risk insurance (PRI), another means of protecting the expectations or value of the original contractual bargain between the state and the investor against political or regulatory changes. While it is true that only a minority of investments, including through public contracts, are currently covered by political risk insurance, the political risk insurance market is growing rapidly. Even though there has been an explosion in the number of BITs, at least until recently major economic powers such as Brazil and China have shown little interest in investor-state arbitration under BITs as a means of investor protection despite their significant share in global inbound and outbound investments. Political risk insurance is expanding into new areas (such as coverage of default on sovereign debt obligations); the industry has survived well the financial and economic crisis. Several factors have led to exceptional demand for political risk insurance products, including political crises such as the Arab uprising in the Middle East, global risk perceptions following the global financial crisis of 2008, and the European sovereign debt crisis. As MIGA's 2011 Annual Report indicates, “Over the past five years, the rate of growth of political risk insurance has exceeded that of foreign direct investment, meaning that a higher percentage of foreign direct investment is now insured for political risk.” At the same time, recently there has been evidence of a crisis with respect to BITs and investor-state arbitration, sometimes considered as "the legitimacy crisis of investor-state arbitration", most dramatically reflected in Argentina’s refusal to honor its ICSID obligation to pay promptly final awards against it and also in the denunciation of the ICSID Convention by several countries, including Venezuela. While host states have sometimes maintained that interpretations of their obligations by arbitral tribunals have been unduly expansionist with respect to jurisdiction, and have read substantive norms in such a way as to create significant constraints on the legitimate exercise of political sovereignty, investors have been concerned by the inconsistency between different awards dealing with the same issues, as well as the apparently obscure or sparse reasoning in many awards, which leads to uncertainty about the extent and nature of the rights they enjoy under the system of BITs. Both host governments and foreign investors increasingly perceive the BITs' protection as expensive and unpredictable, and there is a need to explore alternative solutions. Several years ago, one of the few leading economists to address the question of protection of foreign direct investment, Joseph Stiglitz, suggested that achieving investor-state protection through the hand-tying of host states by treaty obligations was not generally economically efficient, and that third-party insurance ought to replace BITs as the predominant approach to investor protection. Stiglitz in fact may have underestimated the extent to which existing political risk insurance products cover in effect a similar set of political events as are addressed under the obligations in most BITs. Typically insurable risks include expropriation, restrictions on transfers and convertibility, war and civil disturbance, and breach of contract. MIGA expropriation claims, which will be discussed later in this article, tend to involve a direct mandate from the government as part of its policy unlike other institutions that may involve indirect expropriations as well. While denial of justice or lack of fair and equitable treatment are not generally insurable risks, the fact is that many of the underlying political events that have triggered BIT claims including under fair and equitable treatment provisions of BITs would arguably also trigger, under one or other of the provisions of a typical political risk insurance contract, a valid insurance claim by the investor. (Admittedly, this is an anecdotal impression; it would be a useful exercise to take a data base of BIT claims over the last decade and see to what extent the same claims would have been valid insurance claims under a typical PRI contract.)

• 

  "Supreme" Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damaška

  Oscar G. Chase

  It is with great pleasure that I dedicate this article to Professor Mirjan Damaška, whose path-breaking comparative law scholarship has informed and inspired all scholars who work in the field. From a personal point of view, I was just beginning my writing on comparative procedure when I was fortunate to discover his great book, The Faces of Justice and State Authority. Not only did I learn a great deal about the various procedural models in use throughout the world, but as important, found in it a model that situated procedural scholarship in the broad contexts of governance and national cultures. The article I contribute to this volume reflects the influence that continues today. I must also add my admiration for his powerful prose. In my view, Professor Damaška is the Vladimir Nabokov of comparative law. Like that great writer of fiction, Mirjan was educated in an Eastern European country and learned English as a second (or was it his third or fourth) language and yet developed a style of writing that is in itself masterful and creative, full of imaginative and powerful analogies, similes, and alliterations that clarify and strengthen his argument even as they delight the reader. Mirjan, please give us more of these delights. . . . “Law,” to quote Clifford Geertz' intriguing aphorism, “is but part of a distinctive manner of imagining the real.” I have puzzled over this quote and the indeed much else in Geertz' classic essay, Local Knowledge, Fact and Law in Comparative Perspective for a good number of years, much to my intellectual provocation and profit. Koan-like, Geertz' assertion disturbs us with its pithy oxymoronic phrase: The “real,” is axiomatically not “imagined.” The “imaginary” is only “real” in the spheres of poetry, novels, and video games. And what has “law” got to do with it? But like a Zen master, Geertz uses the koan form “as an aid to meditation and a means of gaining intuitive knowledge.” In this spirit I will focus primarily on those most public of courts, the “supreme” courts, and will explore their role in the collective project of imagining and maintaining a socially adopted reality. I argue that in common with all courts they help to shape and validate our notions of time, space, and human relations and, being “supreme,” have a distinctive capacity to do so. They of course do not do so alone. They are but “part” of the imagination of the real—one of the constructions through which we represent reality to ourselves and others; one strand in the self-spun web of meaning (to again borrow from Geertz) in which we are suspended. Nor is this the only thing they do. In setting my own tack I do not mean to deny the essential instrumental functions these courts provide in their respective jurisdictions. I do hope to shed some light from another angle. I will not bottom my argument on the social and cultural effects of the judicial holdings. I therefore eschew claims like “Roe v. Wade led to promiscuous sexuality,” for however true (or not) that statement might be, my different goal is to describe how the establishment and practices of an institution called the Supreme Court helps to create and maintain the “real” by which we all live. Before turning to the specifics of my inquiry, I discuss in Part I the interpretive background that informs this enterprise and its relation to supreme courts. In Part II I show how the Geertzean approach illuminates the usually unacknowledged role of supreme courts in constructing and maintaining social understandings of time and space. Part III argues that the institution of supreme courts is instrumental to the project of modern community's successful imagination of itself as “just” and “civilized.”

• 

  Customary International Law: How Do Courts Do It?

  Stephen J. Choi and Mitu Gulati

  Around 2003, there was a surge in interest among international debt scholars in the question of what evidence courts look to in determining customary international law (CIL). The new post-Saddam Iraqi government had inherited an economy saddled with roughly $140 billion in Saddam-era debt. Since portions of that debt had almost certainly been incurred to fund things such as weapons to put down insurrections and palaces for the dictator, it is unsurprising that the post-Saddam Iraqi government bridled at the prospect of having to pay it. A key legal question, therefore, was whether international law excused a new government from paying some or all of the debts of a prior regime that had been, to use the technical term, “odious.” Or, did the international law governing governmental succession to debts contain an exception for odious debts? There are two primary sources of international law, treaties and customary law. On the treaty front, the drafters of one international treaty, the 1983 Vienna Convention on the Succession of States, had discussed the inclusion of an odious debts exception to the general rules of state and governmental succession. But the idea failed to garner support beyond a handful of states. The next question, therefore, was whether an odious debt exception existed as a matter of custom. The treatises on international debt and state succession were clear on the rule: governments had to pay the debts of their predecessor governments regardless of matters such as political differences. Many of the treatises, however, were from a half-century or more prior and the norms of international law had changed dramatically during that post–World War II period. Scholars, therefore, took on the question of whether it could be argued that, over time, a customary exception of odious debts had evolved. Even a rudimentary sense of history told these scholars that there had been occasions when governments had refused to pay debts of prior regimes. In the early 1900s, the communist governments in Russia and China had famously refused to pay the debts of the prior monarchies. In the United States in the 1800s, a number of post-Reconstruction southern governments had explicitly repudiated the debts of their predecessors on the grounds that those prior regimes had been illegitimate.

• 

  Introduction of Professor Herbert Ma and the Arc of Taiwan’s Progress

  Jerome A. Cohen

  Professor Herbert Ma has always been the person to call on for Americans in Taiwan seeking to learn about China’s legal systems. His informal and low-key manner and his knowledge and zest for the study of comparative law and jurisprudence are widely admired. Herbert is unusually good at listening as well as speaking and is tolerant of various views. He is a wise person and is appreciated for his calm and open-minded perspective. When Taiwan was still in its authoritarian years in the 1960s and 1970s, Herbert played a prominent role on the NTU law faculty, trying in his patient way to inject democratic ideals into the gradually evolving local legal system through teaching comparative law and legal philosophy to the very able students who were destined to staff Taiwan’s legislature, courts, prosecutors’ offices, judicial bureaus, law firms, and law schools and to participate in its remarkable constitutional and legal transformation. Through his teaching, scholarship, and government service, Herbert has proved to be a very positive influence in the development of democracy, the rule of law, and human rights in post-World War II Taiwan.

• 

  A Brief History of the Origins of the International Tax Program

  Noël B. Cunningham

  On the 20th Anniversary of the International Tax Program (ITP), it seems fitting to revisit the Program's inception, and to tip our hats to its founder, Paul McDaniel. Paul, who passed away in 2010, was a remarkable man. Before he came to NYU over twenty years ago, he had already had a distinguished career in government, academia and practice. In 1967, he joined an elite group of young tax lawyers1 in the Office of Tax Policy assembled by Stanley Surrey, “the greatest tax scholar of his generation.” In 1970, he joined the faculty of Boston College Law School where he remained until he joined the Boston firm of Hill and Barlow in 1987. With the advent of the ITP, Paul was to launch yet another stage of his career. In the fall of 1991, I was Director of the Tax Program, and Paul asked to have lunch with me to discuss an idea. It was at this lunch that Paul first proposed what would become the International Tax Program. At lunch, Paul told me that he was considering returning to the academy. He was not interested, however, in simply returning to the classroom; he wanted to create a new LL.M program designed for non-U.S. tax lawyers to study U.S. Taxation. Paul thought there was a huge need and demand for such a program and thought that NYU was the perfect home for it because of its stellar reputation in taxation. Paul suggested that if NYU were interested, he would join our faculty and run the program. He asserted that it could be designed to be financially self-sufficient and would give the current LL.M. Program a global dimension. I was thrilled by the prospect for two reasons. First, Paul already had an excellent reputation as a legal academic and I thought he would be a great addition to our faculty. Second, I thought his concept of an international tax program was brilliant. For me, one of the most attractive characteristics of NYU's Tax Program is that it attracts students from all 50 states; it is truly a national program. Paul was suggesting that we establish a program that would attract students from all over the world. If he were able to pull it off, NYU's program would “go global,” positioning it—tax-wise, at least—at the center of our increasingly interconnected world. When I initially presented Paul's vision to John Sexton, the Law School's new dean, I had three challenges: first, to convince him that the ITP was an excellent idea, second that Paul was the right person to design and direct it, and third to commit resources to ensure a robust launch. Without the Dean's backing, the new program would be DOA, i.e., dead on arrival. Luckily, John was immediately intrigued. That the program might not generate additional revenue for the Law School was fine, so long as it paid for itself and was designed to be of the highest quality. What I did not know at the time is how well the establishment of this Program would fit with the Dean's vision (not yet announced) of creating the first “global law school.” It was not until 1995 that NYU launched its Hauser Global Law School Program.

• 

  Self-Representation, Civil Gideon, and Community Mobilization in Immigration Cases

  Alina Das

  Immigration issues are American issues. One out of every eight people living in America is an immigrant, whose status or lack thereof may place them at risk of deportation. One out of every five children is the child of an immigrant, and over 16 million people in America live in families with at least one undocumented immigrant. And the threat of deportation is significant. Immigration law is complex and lawful immigrant status—whether as a visa holder, refugee/asylee, lawful permanent resident, or individual with some other form of authorization to remain in the country—is difficult to obtain and keep. Authorization may expire and even forms of “permanent” status are subject to revocation because of past criminal conduct and other civil immigration violations. Under the various grounds of “removal” (the legal term for deportation), nearly 400,000 individuals are deported each year. The immigration system is largely a system of self-representation. Forty-one percent of noncitizens end up representing themselves in removal proceedings. The number is much higher for the detained immigrant population, where over 80% are pro se. Categorized as a “civil” legal process, removal proceedings do not provide a right to counsel. Instead, individuals in removal proceedings must rely on the limited resources of nonprofit legal service providers or pay for private representation. Although causation is unclear, those without legal representation are ten times more likely to be deported than those with counsel. Moreover, those with counsel may not receive effective representation, given the wide variation in quality among those who represent immigrants in removal proceedings.

• 

  Private Preference, Public Process: U.S. Discovery in Aid of Foreign and International Arbitration

  Kevin E. Davis, Helen Hershkoff, and Nathan Yaffe

  Should U.S.-style discovery be a feature of private arbitration? Traditionally, the answer has been a clear “no.” Avoiding U.S. discovery was understood to be one of the main reasons for choosing arbitration over litigation and, indeed, for avoiding the U.S. court system. In a remarkable turn, however, parties to both investor-state and commercial arbitrations taking place outside the United States have begun to request discovery. Even more remarkably, they have begun to call on U.S. federal courts for assistance in obtaining such discovery under a federal statute entitled “Assistance to foreign and international tribunals and to litigants before such tribunals,” codified at 28 U.S.C § 1782. The U.S. courts have diverged in their responses to these requests, mostly because the applicable statutory provision is ambiguous and the only U.S. Supreme Court decision to interpret it did not squarely consider its relevance in the context of commercial arbitration. Section 1782, permits, but does not require, U.S. federal courts to provide discovery assistance to “foreign or international tribunals.” It is unclear whether private arbitral tribunals with foreign or international characteristics fall within the scope of this term, and, if they do, how U.S. federal courts ought to exercise their discretion in granting or denying requests. We believe that cases involving requests to U.S. courts for discovery under 28 U.S.C. § 1782 raise a policy question of first-order importance in the law of civil procedure: to what extent can private parties, invoking the authority of a private agreement, control the resources of the publicly sponsored courts? In other words, to what extent can private parties contract for procedure available only in a public court when they already have contracted for a non-public dispute resolution process that is characterized by an absence of such procedure? Two of the authors have examined a variant on this topic, but that earlier work focused exclusively on parties to litigation who try to opt out of the ordinary rules of civil procedure while remaining within the public court system for the resolution of their dispute. Now we consider parties to private foreign or international arbitration who try to opt into the public courts and the ordinary rules of civil procedure for the purpose of obtaining information while remaining in the arbitral system. Each of these scenarios raises the same general policy concerns about contracting for procedure, but the application to foreign or international arbitration forces us to consider at least two new issues. One of those issues is whether the U.S. courts should take the same approach to requests for discovery in connection with foreign or international arbitration as they do in connection with domestic arbitration. In other words, should contracting for procedure be equally acceptable whether it is in aid of domestic, foreign, or international arbitral proceedings? Another issue is whether requests for discovery for use in private arbitration merit the same response as requests connected to proceedings before public bodies such as foreign courts, or tribunals authorized by treaties? Or to put it another way, is placing U.S. judicial resources at the disposal of participants in private proceedings abroad any different from putting them at the disposal of participants in non-U.S. public proceedings?