Faculty Chapters

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  The Plasticity of Property: Legal Transitions Between Property Rights Regimes for Different Resources

  Richard A. Epstein

  My assignment in this chapter is to address the multiplicity of forms that emerge in the broad range of property rights, in order to explain how they function, both separately and in combination. In many cases, these property regimes emerge as hybrid arrangements from earlier, simpler forms. The purpose of this chapter is to describe the mechanisms that enable these newer forms of property rights to emerge, for better or worse. The tale is one of some difficulty because of the many different types of tangible resources that are subject to property ownership: land, air, water, minerals, animals, and more. The physical properties of different resources often call for different property arrangements, so the pattern of transformation may vary by resource. It is impossible to trace every transition, but I hope to provide a reasonably full set of examples of how the process works and to explain when these transitions should or should not require that compensation be supplied to losers of previously vested rights, and, if so, by whom. The entire study is an exercise in forced exchanges introduced by law, some of which are benevolent, and some not.

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  Compraventa en general y compraventa de mercaderías en particular

  Franco Ferrari

  Diccionario digital de Derecho Internacional Privado contains no less than 1522 pages in the Spanish language dedicated to analysis of crucial notions in private international law. Each notion is explained in length and accompanies with bibliographic references. This electronic publication is edited by Jorge Luis Collantes González and features contributions by many private international law authors.

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  Derecho uniforme

  Franco Ferrari

  Diccionario digital de Derecho Internacional Privado contains no less than 1522 pages in the Spanish language dedicated to analysis of crucial notions in private international law. Each notion is explained in length and accompanies with bibliographic references. This electronic publication is edited by Jorge Luis Collantes González and features contributions by many private international law authors.

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  Offer and Acceptance Inter Absentes

  Franco Ferrari

  The notion of ‘contract’ has been adopted by both the → Common Law and the Civil Law; nevertheless, the apparent prominence of a concept ‘in two legal systems should not mislead one into seeing similarity where there is significant difference’. The most obvious difference relates to the different ‘indicia of seriousness’, that is, the ‘general requirements to distinguish those promises which are legally significant from those which are not, to distinguish serious from unserious promises and thus to deter- mine which promises are actionable and which are not’. In Civil Law, at least in the so-called ‘romanistic’ area, this function is generally performed by the so-called causa or cause, that is, a generalized reasonable motive for making a contractual promise (→ Causa and Consideration). By contrast, in Common Law, consideration ‘stands, doctrinally speaking, at the very center of the [. . .] approach to contract law’ (von Mehren [1959]. Although these concepts perform basically the same functions (it has even been argued that they are the same), they do not correspond. The same holds true for the corresponding concepts of ‘contract’, which are in most, albeit not all, countries based upon one of these ‘indicia of seriousness’. However, this does not exclude the possible correspondence of other elements making a contract in the different legal systems, such as the consent of parties and its elements, offer and acceptance.

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  UNCITRAL Conventions and Private International Law: From Antagonism to Symbiosis

  Franco Ferrari

  This paper shows that a paradigm shift has taken place in respect of the way the relationship between uniform substantive law conventions emanating from the work of UNCITRAL and private international law is understood. The author demonstrates that uniform substantive law conventions in general, and those drafted under the auspices of UNCTITRAL, show that their drafter does not consider the relationship to be an antagonistic one, but rather one of symbiosis.

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  Applicable Law in Commercial Arbitration

  Franco Ferrari and Friedrich Rosenfeld

  In international arbitration, arbitrators must often navigate a complex maze of norms from different legal systems. The arbitrators’ decision on which of these legal norms apply to the merits of the proceedings can have far-reaching consequences. Above all, this is because legal systems differ significantly in respect of what they consider to be just, fair, and appropriate solutions to specific legal problems. The diverging approaches towards economic hardship, the statute of limitations, or the enforceability of standard contract terms are just a few examples of the many areas of contract law in relation to which legal systems differ. Accordingly, an arbitral tribunal’s choice to apply the law of one country rather than that of a different country can be outcome-determinative. Selecting the law applicable to the merits is, however, not only important because laws reflect distinct values, which may influence the outcome of arbitration proceedings. Laws also differ in many other regards, including in terms of their accessibility, their level of detail and the existence of a well-developed body of case law. These disparities affect the parties’ ability to show norm-compliant behaviour and significantly impact the transaction costs of finding an appropriate solution once a dispute has arisen. How, then, shall an arbitral tribunal proceed to determine the law applicable to the merits? This chapter posits that the starting point for a tribunal’s analysis is an autonomous conflict provision set forth in the arbitration framework. Such autonomous conflict provisions are meta-norms because they do not offer an answer to a specific question of substantive law but guide the arbitral tribunal in determining the law applicable to the merits. As shown in greater detail below, the autonomous conflict provisions typically direct tribunals to respect the parties’ choice. Absent such choice, arbitral tribunals enjoy discretion in determining the applicable rules—a discretion that, in most cases, is exercised with due consideration of conflict rules that developed in private international law outside the arbitration framework. Irrespective of whether parties have made a choice of law or not, arbitral tribunals are called upon to respect the provisions of the contract and relevant trade usages; (overriding) mandatory norms impose further limitations upon their analysis.

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  Commercial Institutional Arbitration

  Franco Ferrari and Friedrich Rosenfeld

  The principles of independence and impartiality are fundamental to the proper administration of justice. This book examines how these principles are implemented in a variety of settings: in national courts of selected jurisdictions, international courts and international arbitration.

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  Limitations to Party Autonomy in International Arbitration

  Franco Ferrari and Friedrich Rosenfeld

  Arbitration is often referred to as ‘a creature of contract’ and, therefore, ‘an expression of party autonomy’. Some commentators even consider party autonomy to be the ‘backbone’ or ‘bedrock’ of international arbitration. This liberalist thinking is based on the premise that arbitration is a dyadic process between two rational parties that rests on the parties’ delegation of adjudicatory authority to an arbitral tribunal through an exercise in party autonomy. This party autonomy is not only the source of any arbitral tribunal’s adjudicatory authority; it also allows the parties to decide how that adjudicatory authority is to be exercised. In other words, party autonomy allows the parties to shape the arbitration in a way that best fits given facts and circumstances. And it is this autonomy ‘and the promise that parties to international arbitration are free to control their process’ that have contributed to the success of arbitration. Without party autonomy, it appears, arbitration would not be what it is and much of its appeal would be lost. However, closer scrutiny shows a different picture. Neither are the actors who may potentially be involved in arbitration proceedings by definition rational agents, nor is arbitration a process involving only the parties in dispute. Arbitration creates a web of relationships involving the parties, the arbitrators, arbitral institutions, and the public at large. While the interests of these different stakeholders overlap in some cases, they diverge in others, thus creating tensions that at times are solved by limiting party autonomy. The present paper develops a taxonomy of these limitations to party autonomy that reflects the diverging interests of the various stakeholders affected by the arbitral procedure. It is submitted that there are limitations to party autonomy in the interest of the parties themselves, the public at large, the arbitrators, as well as the arbitral institutions. By acknowledging these limitations, which may also be imposed in the interest of more than one stakeholder at the same time, the authors do not wish to downplay the merits of party autonomy or depart from the liberalist tradition. Quite to the contrary, the authors’ position is that a clear understanding of the limitations to party autonomy is necessary to protect arbitration against legitimacy challenges and uphold its role as the primary instrument for resolving business disputes. Ultimately, the limitations to party autonomy hence also ensure that arbitration can persist as a viable system of dispute resolution.

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  Deference in International Commercial Arbitration: Setting the Stage

  Franco Ferrari and Friedrich Jakob Rosenfeld

  In international arbitration, deference entails that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor. For example, a court exercising post-award review might refrain from reviewing a question of procedure de novo but instead defer to a prior determination made by the arbitral tribunal. In this book, prominent arbitration practitioners and academics offer the first systematic analysis of such deference in international arbitration. With abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution). The book makes an important contribution to tracing the boundaries of the multiple layers of control over arbitration proceedings. It takes a giant step towards establishing the right equilibrium between the different layers of authority and thus meeting a pivotal challenge for the viability of arbitration as a form of dispute resolution.

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  Rochelle Dreyfuss: Teacher, Builder, Scholar, Friend

  Harry First

  Undertaking the global project of improving intellectual property demands a critical and dynamic evaluation of its parameters and impacts. This innovative book considers what it means to improve intellectual property globally, exploring various aspects and perspectives of the international intellectual property debate and contemplating the possibilities for reform.

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  Antitrust and the Rebound of Power: Reimagining Antitrust Cosmopolitanism

  Eleanor M. Fox

  Giuliano Amato’s Antitrust and the Bounds of Power has not only weathered well; it frames the dilemma of the crisis of democracy that we face today. Private power is global and has not been significantly contained by either the forces of competition or antitrust law. Public power has been unmoored from the checks and balances of the institutions of governance and is flourishing without pushback from robust winds of competition. Professor Amato is exactly right that there are bounds beyond which private power must not go lest it trample on our freedoms and autonomy, and there are bounds beyond which public power must not go lest it trample on our freedoms and autonomy. And very unfortunately, both have exceeded their bounds. Professor Amato wrote his book in the late 1990s. This was before Big Tech/Big Data, before the new wave of populism and autocratic governments, before the demise of the competition agenda in the World Trade Organization (WTO) and the later crippling of the WTO, before the creation of the International Competition Network (ICN), before the COVID-19 pandemic, and before the rise in the US of the Neo-Brandeisian school to counter neoliberalism. He wrote elegantly of the growing capture of antitrust law by big business and laissez-faire philosophy, the increasing over-technicalisation of antitrust analysis, and the threat that this technocratic form of antitrust built (as it often is) on assumptions that markets work well, will replace a vision of markets backed by antitrust that yield a fair distribution of gains. He wrote of the need for a global competition framework to contain firms bigger than governments, and of the symbiosis of antitrust and democracy. This chapter will fill out the history since 1997. It will explain the undermining of the project for a world competition framework, the formation of the ICN as a roots-up alternative, the growth of Big Tech and its abuses, the increasing technicalisation of the antitrust law wrapped in a label of neutrality, the constant shrinking of US antitrust through Supreme Court doctrine, the increasing disconnect between the public’s conception of how antitrust should contain power and the reality, and the suspense at the moment of this writing as to whether the US Congress will revamp US antitrust to recognise new forms of power and abuses that need to be caught if we are to legitimate the market system. The chapter ends with a suggestion for approaching the problem of power and markets, and for an examination of how to reimagine the path towards antitrust coherence in the world.

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  Mergers, Antitrust and the China Card

  Eleanor M. Fox

  The fear of Chinese economic hegemony looms large in the Western world. Merger partners and other antitrust litigants take advantage of the frenzy and assert a defense: “We have to do it to compete with China.” This chapter tells three stories in which the private actors invoked the China defense. In the two U.S. cases, the private actors won. In the one EU case—Siemens/Alstom, the European Commission won the battle, but will it win the war? For competition authorities and policymakers, the moral of the stories is: Be on the lookout for the China card. It may be a diversion from the real fact that the companies are consolidating significant market power. It may be, further, that antitrust retreat in the name of the Chinese dragon will not help a bit in the quest for global competitiveness.

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  The Federal Circuit’s Reach as a Specialized Court Beyond Patent Law

  Jeanne C. Fromer

  In Professor Rochelle Dreyfuss's seminal article on the Federal Circuit as a specialized court, she evaluates the successes, failures, promise, and peril of this court, both through a lens of substantive patent law and a lens of civil procedure. One of her many important insights is about how the Federal Circuit should consider handling legal issues beyond patent law that arise in patent cases. She has seen the importance of this issue since the outset of the court, yet the court’s thinking here has barely evolved or matured. Given the ongoing developments in the Federal Circuit on innovation and competition issues beyond patent law—including in copyright, preemption, and antitrust—it is high time for the court to heed her recommendations for more thoughtful development of these areas of law.

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  The Role of Creativity in Granting and Limiting Trademark Rights

  Jeanne C. Fromer

  This chapter explores the role of creativity in trademark law’s grant and limitation of rights. Trademark law—unlike patent and copyright law, its intellectual property cousins—is not structured to reward creators for producing particular content. That is unsurprising because trademark law and theory is significantly different than that of patent and copyright. As the U.S. Supreme Court has remarked, trademark law was “not designed to protect originality or creativity,” while patent and copyright law were. Nonetheless, there are critical ways in which trademark law, like patent and copyright law, seeks to encourage creative activity, even without directly rewarding marks’ creators. At the same time, trademark law discourages certain types of activity thought to lack creativity, which are deemed to be less deserving of protection. This underappreciated current of incentive to be creative in certain ways courses through trademark law in ways that complement trademark law’s basic purposes. At the same time, however, trademark law has a particular vision of creativity that might or might not align with society’s. In addition, the law’s drive to reward creativity has also paradoxically helped justify its expansion in certain ways unmoored from core trademark theory.

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  The Punishment-Welfare Relationship: History, Sociology, and Politics

  David W. Garland

  The relationship between 'punishment' and 'welfare'—or more precisely, between a jurisdiction's penal practices and its welfare state institutions-is by now a well-established topic of theory and research in historical, sociological, and comparative studies of punishment. In recent years that relationship—and in particular the balance between penal and welfare approaches—has also become a focal point for social movements working to transform criminal justice, and more generally for activists seeking to shift power and resources away from police and prisons towards social service and public health approaches to crime control. This chapter will discuss the punishment-welfare relationship as a matter of history, sociology, and comparative social policy, and will conclude with a note on current politics, summarizing what we know, identifying promising lines of research, and commenting on key areas of contention. As a theoretical matter, I will argue that future research ought to view penal and welfare policies in relation to the underlying social problems these policies purportedly address and also in relation to the larger social and economic structures that shape these social problems and the policies that deal with them. By way of political commentary, I point to some of the considerations that should be borne in mind by activists pressing for a wholesale shift from penal to welfare modes of crime-control. I begin by discussing the relationship between punishment and welfare as it features in current research and the scholarly literature. I then turn to the question of how penal and welfare policies relate to the social problems they purport to address and to the political and socio-economic structures within which they operate. Finally, I consider the ways in which these issues are implicated in recent demands to defund the police, abolish prisons, and re-imagine public safety.

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  Comparative Law Study on Civil Liability for Artificial Intelligence

  Mark A. Geistfeld, Ernst Karner, and Bernhard A. Koch

  This study was commissioned to the authors by the Directorate-General for Justice and Consumers of the European Commission in spring 2020 and completed in November of that same year. The task given was to provide an overview of existing tort law regimes within the EU that would apply to liability for artificial intelligence (AI) at present, while leaving aside the national implementations of the Product Liability Directive. Instead of a comprehensive presentation of the laws of all Member States, only key aspects at the example of selected jurisdictions should be highlighted. Three use cases were agreed upon as examples. Furthermore, having regard to the pre-eminent position of the US in the field of AI technologies, information on the legal regimes in the US on AI was added, again limited to key aspects and selected states. The latter task was tackled by Mark Geistfeld in the second part of this study, whereas the first part on the comparison of tort laws in Europe was drafted by Ernst Karner and Bernhard A Koch.

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  The Coca-Cola Bottle: A Fragile Vessel for Building a Brand

  Jacob E. Gersen and C. Scott Hemphill

  The Coca-Cola bottle is among the most famous product packaging in the world. Consumers everywhere instantly recognize the distinctive curvy bottle and understand what it represents. It has been celebrated as a design classic and featured prominently by artists ranging from Norman Rockwell to Andy Warhol. The bottle is not only a cultural icon but also a triumph of branding, its goodwill built up over time by the Coca-Cola Company’s heavy investments in advertising and other forms of marketing. Central to this success has been a multipronged strategy to secure legal protection for the fruits of these investments. For more than a century, the bottle has been a pillar of that strategy, alongside Coca-Cola’s secret formula and the Coca-Cola name itself. Today, the bottle is arguably the world’s most famous example of “trade dress,” a form of federal trademark law that protects product packaging that serves as a designator of source. No one doubts the existence of so-called secondary meaning, that consumer association between the bottle and the Company as a product source. When Supreme Court Justices ranging from Stephen Breyer to Antonin Scalia have written about trade dress, the bottle has served as a primary point of reference. Despite the bottle’s importance, the story of how it reached this exalted position is surprisingly neglected. This chapter is an effort to fill that gap. We seek to recover the early history of the bottle with a view to understanding the interplay of law and marketing that enabled its present success. We draw upon a variety of sources, including the prosecution history of relevant patents, the proceedings of an early infringement suit, and the numerous settlements of litigation initiated by the Company against other soda producers. The latter were collected in a Company-sponsored publication called Opinions, Orders, Injunctions, and Decrees Relating to Unfair Competition and Infringement of Trade-Mark. Opinions and Orders eventually grew to three volumes and was styled to resemble an authoritative bound compilation of case law such as the Federal Reporter. As we explain, intellectual property protection in the early years was fragile and contingent. The story begins in 1914, when the Company’s top lawyer spearheaded the effort to develop a new bottle. We examine the two main forms of legal protection available to the Company during this period. Design patents could protect the new bottle as a novel ornamental design. If successful, the Company would have exclusive rights to the design. Unfair competition law, a precursor to modern protection of trade dress, could protect the bottle as an identifier of source. If successful, rivals would be prohibited from using a confusingly similar bottle to “pass off” their colas as the real thing. Design patent law offered only short-term protection, given that a design patent expired fourteen years from issuance. Unfair competition law offered long-term, effectively permanent protection once secondary meaning was established. The Coca-Cola Company was not the first to employ these legal tools. Others had used design patents to protect packaging or had asserted unfair competition claims against rivals. The Company’s efforts stood out, however, in their aggressiveness and sophistication. For example, it obtained not one but three design patents, which purported to protect the bottle from imitators for about thirty-six years. It avidly sued rivals and published the results in Opinions and Orders. A quotation from Justice Oliver Wendell Holmes adorned the spine as a kind of warning to rivals. Writing for a unanimous Supreme Court, Justice Holmes had declared that the Coca-Cola name “means a single thing coming from a single source, and well known to the community.” By thus establishing that the name had achieved secondary meaning, the quotation simultaneously celebrated the cultural importance of Coca-Cola and handed the Company an important legal victory. By contrast, the Company’s early efforts to protect the bottle were haunted by problems and risks. Its problems began with the first design patent, which covered a prototype that was significantly altered en route to production. That difference left the Company vulnerable because the scope of the patent would not necessarily stretch to cover an alleged infringer that adopted the same shape as the production bottle. Worse, the Company revealed its weak position in an ill-advised patent suit against another soft drink maker. The court in that case construed the patent narrowly, providing a road map for avoidance by others.

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  Mishnah and Halakhah

  Moshe Halbertal

  A comparison of the legal traditions we have from the days of the Second Temple and the halakhah in the Mishnah points to the extraordinary legal innovations that were produced in the academies of the rabbis. However, studying the details of these specific innovations obscures, at times, a greater, more fundamental and highly significant transformation: the very creation and emergence of halakhah itself. Although the Mishnah reveals a wide expanse of legal innovations, from the laws of Shabbat to the rules of capital punishment, it bears witness to something more foundational: the shift from Mitzvah (commandment) to halakhah. This transformation signifies one of the most essential characteristics of the Mishnah. If we wish to understand what the Mishnah is, it is essential to gain clarity on what halakhah is. Second Temple literature—the Apocrypha, Qumran Scrolls, the writings of Philo and Josephus—is full to the brim with different legal traditions, yet lacks anything akin to halakhah. For example, in an echo of the biblical commandment, the obligation to fulfill a vow appears in this literature several times. However, nothing even slightly resembling the complex mishnaic tractate of Nedarim (vows), with its eleven detailed chapters, appears in Second Temple literature. Even more so, the extensive interpretive elaboration of the rules entailing the taking of a vow, stretching on for dozens of pages in both the Bavli and Yerushalmi, would not have been possible based on the thin interpretive material of pre-rabbinic literature. The essence of the emergence of halakhah is the establishment of a dense field of highly specific instructions that are meticulously calibrated in great detail. The Mishnah represents, therefore, not only a shift in the content of halakhah, but rather the very emergence of halakhah. To make clearer the distinction between commandments and halakhah, and to gain a better grip on what is meant by halakhah, let us imagine the legal realm as a topographic map. In a topographic map the density and dispersal of the different elevation lines differ from one area to the next; a mountainous terrain will have a much higher density of elevation lines, which will appear from a distance as an indistinguishable blob, while a plain will be apparent through the sparseness of lines. Laying out the law in the form of a map will make apparent that the density of rules is not uniform; there are areas in which we have few rules, and areas that are saturated with rules. To define a certain normative space as halakhah, and not just as a commandment, a certain threshold of rule density must be reached. The map of biblical law will show that the only spheres that may be named halakhic are those associated with the Temple, and this is not mere coincidence; it aids us in defining the nature of the sacred place. The sacred is the space that is saturated with instructions, in which accessibility, movement, and actions are not immediate. In this highly regulated space, actions are mediated through specific and precise norms. The Temple is like a minefield in which one must walk carefully; the price of any mistake is very high, and the norms of traversing such a place must be very clear and precise. It is therefore not surprising that the densest legal context in the Torah is the chapter which deals with the entry of the high priest into the inner sanctum of the Temple, and the rituals of atonement and purification that took place on Yom Kippur. In creating legal realms rich with rules in vastly diverse fields, the rabbis initiate a major expansion of the domain of halakhah beyond the initial sacred space of the Temple. For example, the chapter in the Mishnah in the tractate of Sukkah, which deals with the four plant species that are taken on the holiday of Sukkot and defines, in far greater detail than the Torah, what exactly these plants are and what constitutes their proper state, amounts to a sanctification of these plants.

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  United States

  Helen Hershkoff and Judith Resnik

  This report responds to the call for information from the United States about what the conveners have termed the ‘contractualisation of civil litigation.’ The language of contract evokes images of disputants making autonomous choices to devise and agree to bespoke procedures and customised rules that are adapted to their situations. In our view, use of the term ‘contractualisation’ should be reserved for instances when parties of relatively equal status enter into negotiations and, in exchange for valuable consideration, agree to be bound by terms that replace or complement public rules of civil process. Such negotiated, specific contract terms could come into being before a dispute exists, after it has arisen, or once a lawsuit or other dispute-resolution proceeding is pending. This form of contractualised procedure is predicated on parties not only with commensurate bargaining power but also with the ability to make informed assessments of litigation prospects and of the remedies sought, and with the capacity to structure or adopt an alternative dispute-resolution mechanism or instead to come to an agreed-upon end of the dispute. When private parties comply with these obligations, courts play no role. If breaches of agreements occur, one party may decide to seek enforcement in court. At that point, issues emerge about whether judges should accede to the agreement or impose some constraints. Because such real contracts crafting alternative procedures are a small subset of the contemporary developments in U.S. Law, questions of their enforcement are not the focus of this report. Of course, civil litigation is a mélange of public and private decisions. Whenever non-governmental entities file in court, they make ‘private’ decisions to seek public remedies. Indeed, an important feature of U.S. law is the creation of incentives for ‘private enforcement’ of public laws involving such fields as antitrust, securities regulation, consumer relations, employment, and civil rights. We concentrate on a host of procedural provisions that sometimes are termed ‘contractual’ but for which the word ‘contract’ is generally inapt. In a variety of arenas involving parties of unequal status (such as employers and employees and merchants and consumers), a more powerful party imposes procedural terms that alter the forms and modes of dispute resolution in civil litigation or completely block access to courts. The effort to do so is not novel and in decades past, U.S. judges often considered bargaining asymmetries and, at times, declined to enforce mandates imposed by a more powerful party on the other side. In recent decades, and often invoking the idea of a contract, the U.S. Supreme Court has shifted towards enforcing such arrangements. The unilateral mandates that have obtained court enforcement result in interactions better understood as ‘cramdowns’ rather than ‘contracts.’

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  Disciplining State Capitalism Under International Economic Law: Non-Discrimination vs. Competitive Neutrality

  Robert L. Howse

  The increasing presence of state enterprises in global markets has given rise to an extensive debate about the appropriate approach to state capitalism under international economic law. One aspect of the discussion is the application of subsidies rules in the World Trade Organization (WTO) to the state sector; a concern largely triggered by a controversial decision of the then WTO Appellate Body that state-owned Chinese banks do not necessarily qualify as public actors to whom subsidies disciplines apply. This ruling has been greatly criticised and was qualified by the Appellate Body itself in later case law. In related scholarship, I have addressed its defects in some depth and proposed that state ownership and/or control should create a strong presumption that an enterprise is a ‘public body’ to which the subsidies rules ought to apply. Beyond the question of state enterprises there is also the broader issue of the adequacy of subsidies rules to address appropriately contemporary industrial policy (especially in the case of China), which also involves government influence on the (ostensibly) private sector. Setting the specialised WTO rules on subsidies aside, there is a more foundational divide between the traditional approach of international economic law to state enterprises, which focuses on the application of non-discrimination and related anti-protectionist norms to such entities, and an increasingly heard demand that IEL regimes incorporate a concept of ‘competitive neutrality’, which would in some way require states to establish a level playing field between state and private capitalism. In a recent paper on WTO reform the European Commission asserts the importance of SOEs is not yet matched with sufficient disciplines to capture any market-distorting behaviour. New international SOE rules should focus on the behaviour of SOEs in their commercial activities, in line with the disciplines already agreed in several free trade and investment agreements. Apart from industrial subsidies and SOE disciplines, there is a need to reflect on what other elements could be part of new WTO rules aiming at ensuring the principle of ‘competitive neutrality’ and ‘promoting a level playing field’. The present chapter aims to defend the traditional approach and to raise a number of problems with both the concept of competitive neutrality and its possible application in legal rules and norms in trade and investment.

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  Global Constitutionalism and the Rule of Law

  Mattias Kumm

  This chapter sets out a set of distinctions concerning the rule of law, differentiating it from the rule by law and the rule of persons. It then goes on to connect the rule of law with legitimate authority, in particular the authority of law. It then goes on to explore how the rule of law can function at the global level, particularly how it relates to practices of global constitutionalism. It concludes by addressing a series of challenges that can be raised in relation to this idea.

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  Un-European Identity Claims: On the Relationship between Constituent Power, Constitutional Identity and its Implications for Interpreting Article 4(2) TEU

  Mattias Kumm

  The idea of constitutional identity has many meanings and has been used in a variety of ways. In Europe, the understanding of the term is of practical significance in particular because Article 4(2) of the Treaty on European Union (TEU), which requires EU law to respect national identities ‘inherent in their fundamental structures, political and constitutional’. Whereas Member States are generally under a duty to apply EU law even when it is in tension with national constitutional commitments, this provision has been interpreted to authorise Member States not to apply EU law, insofar they can successfully claim that the application of EU law would be incompatible with their national constitutional identity. In the following, I will refer to ‘national identity inherent in their fundamental structures, political and constitutional’ simply as ‘constitutional identity’. In the context of Article 4(2) TEU, questions relating to constitutional identity thus become questions about the domain over which Member States can claim to be exempt from the duty to apply EU law. What is clear and uncontroversial is that national identities inherent in Member States’ fundamental structures, political and constitutional, are not already in play anytime a national constitutional provision, as interpreted by a national apex court, is in tension with the requirements of EU law. Article 4(2) TEU does not mean that the primacy of EU law applies only to national sub-constitutional norms and that constitutional norms generally prevail over EU law. Only a qualified set of norms and understandings that connects to Member States’ political and constitutional ‘fundamental structure’ allows Member States to claim exemption from the application of EU law incompatible with them. The question is what that means: what kind of norms can make up the constitutional identity of a Member State and thus provide the grounds for exempting that state from applying EU law when it is in conflict with them? There is by now a rich literature describing the various positions of Member States, Constitutional Courts and scholars in the European Member States in doctrinal terms. What I will be trying to do here is provide a general, theoretically informed framework for thinking about questions of constitutional identity as they are relevant for engaging Article 4(2) TEU. I will begin by analysing the basic structure of a widely influential conception of constitutional identity associated with Carl Schmitt (section I), before contrasting it with a competing conception, which I call the Constitutionalist conception, and which, I will argue, is more persuasive (section II). Even though within either conception, there is space for basic principles for liberal constitutional democracy on the one hand, as well as more particular national commitments on the other, the way they operate in constitutional discourse and the way they are identified and circumscribed differs fundamentally. I then argue that the European Union commits the Member States to national identities, including constitutional identities, not in conflict with Constitutionalist principles, presumed to be shared in Europe and grounding all public authority exercised there (section III). Identities at odds with fundamental constitutionalist principles are not to be respected, whereas national constitutional identities compatible with them are generally unlikely to be in conflict with EU law but may exceptionally qualify as a ground not to apply otherwise valid EU law. In other words, any legally persuasive jurisprudence of particularism is circumscribed by common European constitutionalist commitments. Un-European identity claims by the Member States are claims that are in conflict with European constitutionalist principles—violating European constitutionalist identity—and can make no claim to be respected.

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  Faces of Gender Inequality

  Sophia Moreau

  Inequalities based on gender are morally troubling for a number of different reasons. Consider violence against women. It is morally concerning at least partly because it places many women’s lives and health in danger. We can acknowledge this as a harm without making any comparison between women and men. But violence against women is concerning also because of the ways in which it results from, and also perpetuates, the disempowerment and silencing of women, a disempowerment and silencing that many men do not experience. So violence against women is also a problem of discrimination. And it is made possible by the persistence of gender stereotypes that work, either tacitly or explicitly, to rationalize the power relations that render women vulnerable while leaving men in a position where they can often dominate with impunity. Interestingly, even the discriminatory aspect of violence against women seems to have multiple component parts, which cannot easily be reduced to a single harm. Such violence subordinates women to men—that is, it is caused by, and in turn perpetuates, a social order in which women systematically have less power and authority than men and attract less deference than men, and in which women’s needs are often marginalized or rendered invisible. Violence against women also denies many women the freedom to shape their lives in a manner of their own choosing. And when it occurs within the family, it leaves women without access to a good that is a necessary condition for functioning as an equal in their society: namely, a home that is a place of respite, a place where one can gather one’s strength, a place where one is secure and respected. It is not obvious that these different harms—social subordination, a lack of certain important freedoms, and a denial of access to a basic good—are reducible to some single type of harm or single type of disvalue. I have argued elsewhere that they form different parts of a pluralist theory of what makes discrimination wrong. In this chapter, my aim is to sketch out this general, pluralist theory of wrongful discrimination and then explore how it might be used to advocate for women in cases of gender-based discrimination. In Section 1, I outline my theory of wrongful discrimination and explain both the sense in which it is pluralist and the sense in which it nevertheless appeals to a single, unifying ideal of inequality of status. In Section 2, I consider a number of practices that involve gender-based discrimination and use the general pluralist theory of wrongful discrimination laid out in Section 1 to help shed light on what is wrongful in these cases of gender-based discrimination. In Section 3, I present several important implications of my pluralist theory, which I think enable it to be particularly sensitive to instances of gender-based discrimination that can be left invisible on other approaches. Finally, in Section 4, I relate my theory to two of the other theories presented in this volume, explaining how it can be used together with the prioritarian approach outlined by Shreya Atrey and together with the four-dimensional approach to substantive equality laid out by Sandra Fredman, in order to help identify and combat gender-based discrimination.

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  Virtuously Discriminating: John Gardner’s Contributions to Discrimination Theory

  Sophia Moreau

  This chapter focuses on Gardner’s most original contributions to the growing field of discrimination theory. Gardner defended a number of quite radical views about discrimination—for instance, that indirect discrimination is just another form of direct discrimination, and that discrimination is wrong because we prohibit it (a malum prohibitum) rather than wrong in itself (a malum in se). In this chapter, I explain his views and discuss the possibilities he has opened for future philosophical inquiry and productive legal reform. I argue that it is particularly important that we take seriously his suggestion that the divide between direct and indirect discrimination is not very wide. I then critique some features of his views. I argue that although direct and indirect discrimination are wrong for similar reasons, we should not treat indirect discrimination as just another form of direct discrimination on a different ground. I also argue that it is a mistake to think that discrimination is a malum prohibitum, and that in order to see why it is genuinely a malum in se, we need to move beyond Gardner’s concept of disadvantage and focus on the particular way of disadvantaging people that makes discrimination wrongful, which in my view involves subordination.

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  Article 213 of the American Law Institute’s Model Penal Code

  Erin E. Murphy

  Erin Murphy explains the revision of sexual assault law in the American Law Institute’s Model Penal Code, finalized in 2022 after ten years of controversial debates. The chapter begins with an overview of contemporary laws in US jurisdictions, which show substantial diversity. She describes the revision process within the American Law Institute, in which she participated as Associate Reporter along with Stephen Schulhofer as Reporter, and outlines key provisions and distinguishing features of the revised code. Murphy also identifies and explains four innovative provisions, three addressed to vulnerable victims and one to a new defence of permission to use force. The chapter also explores five areas of controversy that arose during the drafting process: the definition of the covered sexual acts, the definition of consent, the applicable mental state, and provisions addressed to sleeping and intoxicated persons.