Faculty Chapters

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  Constructing an International Intellectual Property Acquis for the Agricultural Sciences

  Rochelle C. Dreyfuss

  The agricultural industries have increasingly come to rely on intellectual property law to protect investments in improved plants and breeding techniques. While these appropriation strategies (along with new self-help opportunities) enhance profits and increase incentives to invest, they can also endanger innovation, contribute to an unjust distribution of knowledge outputs, and lead to practices that undermine food security. At one time, every country could balance the costs and benefits of intellectual property on its own and craft law that met its individual interests. As global trade has increased, however, national flexibilities have diminished. Interstate competition means that every country must consider what its neighbours are doing. As important, intellectual property lawmaking has moved to the international level. Negotiations have been characterized by regime shifts and successively more strident demands for ever-stronger protection. Weaker countries, along with other proponents of a more open technological environment, have had a difficult time being heard. As Daniel Gervais has informally said, “intellectual property is on a grain elevator: it moves only in an upward direction.” Demonstrations in Doha, in Seattle, in Wellington—wherever international negotiators meet to discuss intellectual property issues—suggest that a new approach, one that is more attentive to broader social values, is necessary. After discussing the nature of the problems confronting the agricultural sector and the difficulties states encounter in solving these problems domestically, this chapter applies a framework I developed with Graeme Dinwoodie in our recent book, A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime. In the book, we argue that when intellectual property law is viewed holistically and over time, there are certain core principles that appear repeatedly. While many of these principles protect rights holders and state interests, there are also principles that protect public access and future generations of innovators. These are harder to find in international conventions. Negotiators know more about trade law than intellectual property law, and they are heavily influenced by the creative industries. The result is that these agreements may leave some room for public-regarding measures, but the details are left to member states. It is thus the job of scholars to identify these principles and explain their critical role in innovation policy to legislators, courts, negotiators, and international adjudicators. In the book, Professor Dinwoodie and I considered the appropriate balance in the context of the arts and sciences. This chapter takes a closer look at agricultural innovation.

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  Enforcing Intellectual Property Claims Globally When Rights Are Defined Territorially

  Rochelle C. Dreyfuss

  In recent years, intellectual property has overflowed the “Big Three” (core silos) of copyright, patent, and trademark law. The appearance of novel intellectual property rights at their “edge”' responds to many developments. The salience of knowledge goods in the modem economy has enhanced national interest in encouraging local creative production; competition at the international level, along with the emergence of global value chains, has increased emphasis on tracking information flows among nations; global protection for western science and art has led some countries to recognize the contributions of other cultures and knowledge systems. Most important, however, is the disruptive effect of the Internet. Worldwide connectivity makes many activities - such as data collection and computer hacking—more feasible; low cost distribution channels generate interest in the creativity of remote regions; and social media create both instant celebrity and profound invasions of privacy. It is no wonder, then, that there is growing interest in publicity and privacy rights, trade secrecy and database protection, and rights over traditional knowledge and geographical indications, or that there are calls to update tort and contract law and expand criminal liability. While scholars have spent considerable energy thinking about how national lawmakers should fashion or adapt substantive protective regimes to deal with changes in the creative landscape, it is equally important to consider another effect of the Internet. Connectivity does more than enable and draw attention to all sorts of novel intellectual efforts, it also allows both old and new activities to be accomplished in a very different way: all over the world instantaneously, simultaneously, and ubiquitously. If lawmakers do no more than create innovative intellectual property regimes, they may well perpetuate a problem that copyright, trademark, and patent law have long struggled with: the mismatch between the territoriality of intellectual property law and the global dimension of intellectual production, exploitation, and use. Marketa Trimble has called attention to one example of the problem, showing how devices such as VPNs, Sling and Tor can permit users to disguise their location and obtain access to remote signals, thereby undermining the interests of local right holders. Of course, right holders who learn of remote uses can sue in each country where their rights are violated. But the territoriality of intellectual property protection is problematic from the perspectives of both intellectual property owners and those accused of infringement. At a minimum, suing and defending in multiple territories is expensive. If the right holder is the weaker party, it may not be able to afford to sue everywhere. As a result, rewards and deterrence may be inadequate. Conversely, if the weaker party is the accused infringer, multiple suits can lead to improvident settlements—agreements that, in effect, mean less freedom to rely on the public domain. Even if the parties are well matched, there are difficulties. For example, the smartphone wars are raging around the globe. The parties to the dispute between Apple and Samsung are so well matched; they can both afford prolonged litigation in multiple jurisdictions. Eventually, such disputes resolve (as this one largely has). But before that happens, the lawyers earn millions. The principals, the many judicial systems that hear the cases, and the taxpayers and consumers who must absorb the cost do not make out nearly as well. The issues go beyond expense and wasted judicial resources. In some cases, the elements of these causes of action are divided among jurisdictions. For example, a celebrity image may be cultivated in one country, but exploited without authorization elsewhere; a trade secret might be taken in one state for use far away; or a distribution system may utilize infrastructure divided among several territories. In such cases, suit may be brought in all of the relevant locations, but it is possible that each court will leave it to one of the others impose liability. The result is an omitted case, insufficient liability, and inadequate deterrence. Alternatively, all the jurisdictions might find the accused infringer liable. As the Canadian Supreme Court noted in SOCAN v. Internet Providers, a case involving Internet transmissions through Canada, that did not necessarily start and end in Canada: “[The Internet] ‘raises the spectre of . . . copyright duties on a single telecommunication in both the State of transmission and the State of reception.’” As troubling, it is possible for courts to reach conflicting judgments. Apple and Samsung, for example, were not merely involved in multiple suits; they must grapple with essentially inconsistent outcomes. For example, Apple won in Germany and California, but lost in Japan, South Korea, and Britain. Inconsistency in “the real world” is a problem because the parties have to tailor what they do to the intellectual property law of wherever they are acting. Thus they may have to suffer the expense of manufacturing different products or engaging in different marketing strategies in each of the locations in which they operate. On the Internet, the situation is even worse. Consider, for example, the cases against eBay as to whether it was secondarily liable for sales of counterfeit merchandise occurring on its auction site. In the United States, eBay's monitoring of its site was held adequate enough for eBay to avoid direct or secondary liability; in Europe, a similar level of monitoring was found insufficient. If eBay obeys the European judgments, it will undermine U.S. interests in creating an efficient worldwide auction system; if it obeys the U.S. judgment, it will offend European interests in preserving the cachet and prestige of European trademarks. There are several ways to deal with the mismatch between the territoriality of intellectual property law and the global nature of creative production, exploitation, and use. Part I describes four approaches, each of which manipulates substantive law. All four achieve a degree of efficiency, but they do it at the expense of sovereign authority to craft intellectual property law that reflects domestic values and needs. Part II describes procedural mechanisms that avoid that problem. In particular, Part II focuses on efforts by the American Law Institute, the Max-Planck Institute, and two coalitions of Asian scholars and practitioners to develop an agreement on rules of private international law. The proponents of this approach recognize that it will not be easy to reach consensus on private international law. However, they see a procedural approach as normatively more appropriate (and possibly, easier to achieve) than altering the substance of the Big Three or the rights now emerging at their edges. I conclude with some thoughts on the issues lawmakers and scholars ought to consider if a procedural approach is to be adopted and other benefits this tactic might bring to the international intellectual property system.

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  Patents and Human Rights: The Paradox Re-examined

  Rochelle C. Dreyfuss

  The Special Rapporteur in the field of cultural rights has recently released two reports tackling the difficult task of reconciling the provision in the Universal Declaration of Human Rights recognising that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author” with the right “to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” The Copyright Report, which was issued first, maintains that the harder question is reconciling moral rights with public access interests because material interests can be satisfied in ways that do not require copyright protection. In contrast, moral rights pose a difficult question because authorial interests in the integrity of the work clash with society’s interest in commenting, parodying, and transforming the work to other needs.

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  The Economic Structure of Roman Property Law

  Richard A. Epstein

  The Roman law system of property rights was developed incrementally, in reliance on natural law, without any reliance on economic analysis developed in the twentieth century. Nonetheless, its doctrinal organisation conforms well to the prescriptions of that modern theory. Thus the Roman law draws the right lines between common and separate property, developing efficient rules of acquisition for the former. It also develops coherent rules for the outright transfer and division of assets by way of bailment, usufruct, license, mortgage, trust and servitudes before the onset of modern recordation systems. The Romans also articulated rules for just compensation to deal accessio, confusio and specificatio. The durability of their system across both time and space is a lasting tribute to the intuitive ingenuity of the great Roman lawyers.

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  The Fanny/Freddie Fiasco: Executive Outreach in the Regulation of Financial Markets

  Richard A. Epstein

  If there has been a unifying theme of Barack Obama’s presidency, it is the inexorable growth of the administrative state. Its expansion has followed a pattern: First, expand federal powers beyond their constitutional limits. Second, delegate those powers to agencies and away from elected politicians in Congress. Third, insulate civil servants from politics and accountability. Since its introduction in American life by Woodrow Wilson in the 20th Century, the administrative state’s has steadily undermined democratic self-government, reduced the sphere of individual liberty, and burdened the free market and economic growth. In Liberty’s Nemesis, Dean Reuter and John Yoo collect the brightest political minds in the country to expose this explosive, unchecked growth of power in government agencies ranging from health care to climate change, financial markets to immigration, and more. Many Americans have rightly shared the Founders’ fear of excessive lawmaking, but Liberty’s Nemesis is the first book to explain why the concentration of power in administrative agencies in particular is the greatest – and most overlooked – threat to our liberties today. If we fail to curb it, our constitutional republic might easily devolve into something akin to the statist governments of Europe. President Obama’s ongoing efforts to encourage just such a devolution, and the problems his administration faces as a consequence, present a critical opportunity to defend the original vision of the Constitution.

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  The Progressives’ Deadly Embrace of Cartels: A Close Look at Labor and Agricultural Markets, 1890-1940

  Richard A. Epstein

  This chapter traces the comparative logic of the traditional classical liberal and the Progressive approaches to problems of industry concentration, with special reference to agriculture and labor. Part 1 addresses the question of how the Old Court conservatives—the targets of the Progressive movement—addressed the unified treatment of industrial and labor combinations that acted in restraint of trade, and it defends their analytical approach. Part 2 switches focus to address the institutional challenges and resource misallocations that took place once the Clayton Act irretrievably split the regulation of business from the regulation of labor and agriculture. It covers the economic effects of cartel arrangements as well as evaluates why the electoral systems set up in labor and agricultural markets sparked political success of Progressive politicians. These politicians used those devices to consolidate political support, especially in the 1930s, by the active promotion, organization, and support of these cartel arrangements.

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  Public Service Residency in Lieu of the Third Year of Law School

  Samuel Estreicher and Randal S. Milch

  President Obama's remarks on the utility of the third year of law school have rekindled public debate over the value of requiring students to finish three years of law school before they can take the bar examination and practice law. We are proposing a Public Service Residency Program as a practical alternative to the third year of law school. We believe that this Program, which can be flexibly implemented in accordance with local legal and political requirements, will produce new lawyers with greater experience and less debt, and thus with more to offer to prospective employers and greater freedom to take legal jobs of their choice and further the needs of the community. The Public Service Residency Program would be an option that students might select. It would not require law schools or the ABA to change their current requirements for a JD degree. The parameters of the proposal (which would require action by the State Supreme Court) are set out later, but the nuts and bolts are simple. After completing a core curriculum in the first two years of law school, participating students would, beginning in the summer after the second year, undertake a year's Public Service Residency with a participating law firm, corporate legal office, government agency, or nongovernmental organization. These sponsoring organizations would be responsible for providing the Residents with three things: supervised legal work on behalf of one or more clients involved in public service matters, compensation, and certification at the year's end of the Resident's satisfactory performance. There is no requirement that the sponsoring organization offer the Resident a permanent position at the end of the Residency.

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  Institutionalizing Pro Bono

  Samuel Estreicher and Jonathan Remy Nash

  Why do large law firms engage in pro bono matters? One answer is that legal services on pro bono matters provide a benefit to society. Often pro bono projects involve provision of critical services to individuals and groups who may otherwise lack access to competent legal representation. Where this is the case, lawyers are making an important societal contribution, and fulfilling an ethical obligation of their profession. Pro bono matters also provide an opportunity for young lawyers to deal with clients and issues they would be unlikely to encounter, and hence to develop skills not ordinarily called upon in the course of at least their junior years of billable work. Such engagements thus offer an attractive training opportunity for young lawyers that, from the firm's standpoint, poses no risk to its paying clients. Law firms also use the prospect of pro bono work as a means to recruit and retain young associates. Pro bono matters also may improve the public image of law firms that underwrite them. From the firm's vantage, the benefits to society in helping to address social needs are important but may be secondary to the instrumental benefits. If there is a positive relationship between commitment to pro bono activities and measures of firm performance, such a finding may encourage firms to expand their underwriting of pro bono work by their associates. On the other hand, if a positive relationship is lacking or has become attenuated over time, firms may reassess their commitment to pro bono activities or implement controls to better further instrumental objectives.

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  Seeing Blackness in Prison: Understanding Prison Diversity on Netflix’s Orange is the New Black

  Brittany Farr

  On July 11, 2013, Netflix premiered its fifth original series, Orange Is the New Black, a fictionalized comedic drama based on the memoir by Piper Kerman of the same name. The show follows Piper Chapman, a young, white upper-middle-class woman, after she is sentenced to fifteen months in prison for transporting money for her drug-dealing ex-girlfriend nearly ten years earlier. Orange Is the New Black was met with both popular and critical acclaim, and to date has been renewed for its fourth season. The show has made the lives of incarcerated women visible in an unprecedented way. At the time of this writing, the United States has the largest prison population in the world. The number of women in prison increased by 646 percent between 1980 and 2010, while the rate of women’s incarceration was almost one and a half times that of men’s. So perhaps it should not be surprising that one of the most critically acclaimed shows about women in recent years takes place in a federal women’s prison. Orange Is the New Black is breaking new representational ground with its diverse, female-led cast and scenes illustrating some of the harsh realities of prison life. In a televisual era where the driving economic logic is that diversity sells, these groundbreaking representations are not quite as revolutionary as they may initially seem. Although Orange is representing some of the most vulnerable women in the country, its comedic tone and narrative themes are simultaneously perpetuating some of the most persistent cultural myths about criminality and prison in order to do so. Focusing on the themes of blackness and visibility, I critically examine the continuities between the show’s subject matter (the mass incarceration of women), its political economy (as a Netflix original series), and its critical reception. The show’s creators were able to mitigate the risks of content creation, in part, by strategic appeals to diversity. The risks taken at the textual level actually work to temper the risks of Netflix’s early forays into content creation. The success of Orange Is the New Black proves a point made by Herman Gray and other media scholars: the recognition of difference within contemporary media is good business practice. It is one strategy, of many, used to create marketable representations and manage the riskiness of participating in an ever-less regulated sphere of capitalism. Orange Is the New Black is situated at the intersection of the prison and entertainment industries, and by interrogating the logic animating both industries, we can discern a coherency of affective investments across seemingly disparate spheres.

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  How International Should International Arbitration Be? A Plea in Favour of a Realistic Answer

  Franco Ferrari

  In the Essays in Honour of Michael Joachim Bonell major experts world-wide in international and comparative law celebrate one of the protagonists of the uniform law scene, a leading scholar on international contract law, promotor and one of the devisers of the UNIDROIT Principles of International Commercial Contracts, with articles treating subject-matters of topical interest.

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  Privatizing Public Rights: Common Law and State Action in the United States

  Helen Hershkoff

  The chapters in this volume reflect a diversity of approaches to the question of the “boundaries of rights” and the positive obligations of state and private actors. As stated, the question appears to rest on two assumptions: that a legal system recognizes legally grounded obligations to provide goods and services—education, housing, and the like—and that these obligations extend to nongovernmental actors as well as to the state. Both of these assumptions run counter to conventional understandings of United States (US) constitutional doctrine. First, the US Supreme Court has consistently interpreted the federal Constitution as affording no right to government-provided assistance of the sort included in many national constitutions adopted after World War II. Second, constitutional rights in the US (other than the right not to be enslaved by another individual) by their terms seem to extend vertically only against “state action” and not horizontally against private action. Although political analysts see sovereignty as dispersed between private and public actors—and so fragmented, diffuse, outsourced, and hybrid—the US Supreme Court persists in maintaining an “essential dichotomy” between the wrongdoing of government and that of nongovernmental actors, locating the latter outside the boundary of federal-constitutional enforcement. The state-action divide is pervasive throughout federal constitutional law and applies not only to individuals deciding whether to invite someone for dinner, but also to “Alpha Institutions”—Bayless Manning’s provocative term—carrying out government-authorized programs that affect individuals even in intimate matters such as health care. 8 From the US perspective, it thus seems odd to talk about the boundary of a positive constitutional obligation that does not exist within a legal system that does not recognize constitutional rights outside a narrow sphere of public activity. Nevertheless, locating the boundaries of rights, especially positive constitutional rights, holds theoretical and practical significance for US law. The boundary question is particularly important when the government contracts with private companies for the planning, production, and delivery of social goods – a practice known as privatization or outsourcing. In a familiar argument, the public sector enlists privatization because it promises benefits such as efficiency and innovation that are said to be stifled by regulation. On the other hand, privatization also creates opportunities for rent seeking that, unchecked, allow private companies to misuse public power in ways that threaten to dilute service quality, subvert individual rights, and undermine constitutional norms. Even if outsourcing involves goods and services that are not of constitutional dimension, their distribution nevertheless raises questions about procedural regularity and fair treatment that are encompassed within the public-law requirements of due process and equal protection. By placing the activity of government contractors outside the sphere of “state actions,” privatization effectively eliminates constitutional constraints in settings where administrative or common-law remedies may be insufficient to ensure respect for democratic norms. I approach the boundary question as a matter of US constitutional law, asking whether constitutional norms can play a role in regulating privatization without transforming all private action into state action. I do so from the perspective of subsidiarity and proportionality, two concepts said to be somewhat alien to US legal discourse, and, instead, are associated with judicial practices within the European Union and its relation to member states. By subsidiarity I mean the principle that collective activities should be undertaken, when feasible, through mediating structures that often are located at the local level, with the aim of nourishing democratic politics and preventing “an overcentralization of power.” The principle as used here embraces not only local deference but also a “positive dimension” intended to ensure “that the body assigned a particular function be able to carry it out effectively.” By proportionality I adopt the definition associated with Robert Alexy of rights conceptualized as “optimization” principles, requiring “the realization of something to the greatest extent possible, given countervailing concerns.” Alexy’s definition pitches proportionality at a high level of abstraction, but for present purposes, it has the advantage of subsuming the different versions of proportionality analysis applied by judicial systems around the world, including the specific form of review practiced by the European Court of Human Rights.

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  Preemption Doctrine in the Roberts Court: Constitutional Dual Federalism by Another Name?

  Roderick M. Hills Jr.

  This chapter in Business and the Roberts Court examines the Court’s preemption decisions. These decisions do not consistently favor business interests and seem to follow a traditional script of dual federalism. When the Court enforces federal statutes having the purpose of breaking down regulatory barriers to freedom of contract, it plays a historically familiar and judicially congenial role of protecting a national market from state burdens on commerce. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime. This categorization, more than any reductionist label, best explains the Roberts Court’s preemption decisions to date.

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  What’s Wrong with Democratic Theory?

  Stephen Holmes

  Flexibility needs to be distinguished from arbitrariness. For government to remain flexible without becoming arbitrary, according to James Madison, the Constitution must permit and encourage discretionary political pushback rather than laying down strict legal prohibitions or restraints. To explore this theme, I propose to look at seventeenth- and eighteenth-century theories about democracy and the separation of powers. My working premise is that classical liberals advocated the separation of powers as a remedy to a number of perceived pathologies in republican government. But exactly what pathologies did they have in mind? Diagnosis dictates remedy. Therefore, by taking the remedy proposed by liberal constitutionalists as our starting point, we can walk back the cat and reconstruct, from their proposed cure (the separation of powers), the disorders they considered most likely to afflict representative democracy, or what they called “a government wholly elective” (Federalist Papers, #66). I will be taking most of my examples from the Framers of the American Constitution and the seventeenth- and eighteenth-century writers on whom they drew. Either by force of habit or in a rhetorical attempt to mollify Anti-Federalist forces, the authors of the Federalist Papers continued to cite Montesquieu's claim: “Lorsque, dans la même personne ou dans le même corps de magistrature, la puissance législative est réunie à la puissance exécutrice, il n'y a point de liberté; parce qu'on peut craindre que le même monarque ou le même sénat ne fasse des lois tyranniques pour les executer tyranniquement”. As a result, commentators regularly assume that the primary purpose of the separation of powers was to prevent the tyrannical oppression and violation of private rights that Montesquieu, and those who invoked him to oppose the Framers' centralizing plan, feared most. This is highly unlikely, however, because the principal threat to which the Framers were responding in 1787 was not tyranny but the contrary, namely, “an unequivocal experience of the inefficacy of the subsisting federal government” under the Articles of Confederation. Specifically, the new Constitution was designed to allow the fragile American republics, recently broken away from British control, to pool their efforts and coordinate their collective defence, not to mention their joint seizure of western lands, in a dangerously hostile international environment. The driving impulse behind the proposed Constitution, including its scheme for separating powers, was to create a more, not a less powerful central government. In more recent times, it should be said, the seventeenth- and eighteenth-century doctrine of the separation of powers has been criticized unsparingly from a variety of perspectives. Adam Przeworski, for instance, has written that the rise of political majorities, able to dominate the legislative and executive branches simultaneously, has made the doctrine “anachronistic” to the point that it “just makes no sense”. American progressives, by contrast, have attacked the separation of powers for the contrary reason, not because it is unworkable but because, “with its elaborate barriers to the exercise of effective governmental power”, it works too well, introducing so many veto points into the system that political paralysis and therefore status-quo or anti-reform biases are inevitable. Such criticisms were never raised at the time of the American Founding. Instead, Madison argued, paraphrasing Montesquieu, that “ambition must be made to counteract ambition''. But the main emphasis throughout the Federalist Papers is not on the way the separation of powers promises to limit, obstruct, check, arrest, impede, shackle, hinder, or brake potentially cruel and repressive power. Indeed, Alexander Hamilton repeatedly urged his readers never to “forget how much good may be prevented, and how much ill may be produced, by the power of hindering that which is necessary from being done”. The Framers' relatively attenuated concern for hindering tyranny, which seemed to them a remote threat at the time, helps explain why the Anti-Federalists opposed the Constitution they drafted and accused it of containing (what else?) the seeds of tyranny. But if the American Framers did not intend the separation of powers primarily as a barrier against the threat of tyranny and the violation of private liberty, what was its purpose from their perspective? They advocated the separation of powers as an obstacle against a different form of arbitrary rule, namely, the abuse of public office for personal advantage which, while leaving personal liberties largely undisturbed, would fatally erode public liberty and thereby destroy republican government at its root. More specifically, they designed the separation of powers to discourage and obstruct favouritism, self-dealing, rent-seeking, concealment of incompetence, corruption, and collusion among elected officials against the public interest. Such betrayals of the public trust by elected officials may be so hard to eradicate precisely because they are not monstrously tyrannical. They entail no shocking violation of private rights and thus give rise only to weak and erratic movements for reform. To preserve republican government, therefore, elections must be supplemented by the separation of powers. Hamilton nicely summarizes the threat that the Framers had in mind when he asserts that “cabal, intrigue, and corruption” are the “most deadly adversaries of republican government”. These, more than tyranny, were the fatal adversaries that the separation of powers was originally designed to defeat or at least to keep at bay. The inescapable vulnerability of republican government to such potentially fatal disorders is what led classical liberals to agree with Montesquieu that “all would be lost”, even in a wholly elective government, if the entire range of governmental powers was controlled by a compact group of individuals. Whatever critics say about the separation of powers itself, no one could possibly contend that this grim diagnosis itself no longer makes sense today or that subsequent advances in democratic constitutionalism have made the classical liberal alarm at “cabal, intrigue, and corruption” of merely antiquarian concern.

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  Schmitt, Schmitteanism and Contemporary International Legal Theory

  Robert L. Howse

  This chapter provides an overview of the concepts and arguments of Carl Schmitt (1888–1985)—Hitler’s chief legal official and an international law apologist for Nazi aggression—that have gained the most purchase in contemporary international legal discourse, primarily international legal theory. The chapter critically engages with a select group of scholars who have deployed Schmitt in contemporary international legal theory. These are: Martti Koskenniemi, Eric Posner and Adrian Vermeule, Paul Kahn, and Nehal Bhuta. Lastly, the chapter concludes with some observations about what the use of Schmitt in contemporary international legal theory may tell one about the state of the discipline, its fault lines, and anxieties.

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  The Globalization Debate—A Mid-Decade Perspective

  Robert L. Howse

  For some time now, this author has argued that there is no longer a meaningful or important debate in favour of or against globalization, because the anti-globalizers have themselves gone global. In various sites of global law and policy-making, including those at the interstices of the global and the local (as will be explained below), these anti-globalizers have actually identified processes and institutions in which, unlike in the ‘state’ in many instances, they can air their criticisms of policies and express their values as global values. Despite the continuing rhetoric and polemics regarding the promotion of globalization, there is no longer an anti-globalization ‘side’ in the debate to coherently represent the position that the territorial nation state is and should remain the locus of control over economic activity, and should retain a monopoly on legitimate governance. Today, the protesters who march against ‘globalization’ are not marching in support of the ‘state’. Instead, they are (mostly) advocating for a set of values and causes that transcend state boundaries and that require global action. At the beginning of this century, Anthony Giddens anticipated that the debate would re-focus as a debate about globalization, rather than on whether globalization should take place. In an interview in the year 2000, he suggested that the second globalization debate would be “about what globalization is, what its consequences are, and what kind of framework we can develop for the world to accommodate it. It’s plainly had a lot of positive developments in producing a more interdependent world. We have to learn to harness those things, and we have to shift away from the kinds of political positions that were dominant for the last few years, and we have to produce a politics which allows us to create an inclusive society locally, nationally, and globally, and to harness these processes for the betterment of human beings.”

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  Toward a Framework for Sovereign Debt Restructuring: What Can Public International Law Contribute?

  Robert L. Howse

  Chapter 14: analyzes some of the possible elements of an international law approach to a multilateral framework for sovereign debt restructuring. The chapter draws extensively from the deliberations and publications of the UNCTAD Working Group. He proposes the creation of a “counter-framework” using soft-law instruments of a kind generated by various UN processes and institutions, including the International Law Commission (ILC), UNCITRAL, and UNCTAD. The “counter-framework” would offer different norms, fora, legal mechanisms, expertise and analyses to those that dominate the existing informal framework (IMF, Paris Club, US Treasury, financial industry associations, private law firms, creditors’ groups, etc.). It would offer alternatives for borrower-lender relationships and the restructuring of debt, alternatives which if the analysis of this chapter (and the other chapters of this book) is correct, would benefit both sovereign debtors and creditors. This proposal might be of particular interest to states that could be sources of new finance and do not want to keep with the existing informal framework (like perhaps China).

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  Declaration of Independence

  Daniel J. Hulsebosch

  When the Continental Congress established a committee to draft the Declaration of Independence on June 11, 1776, the thirteen colonies had already been coordinating armed resistance against the British military for more than a year. Royal government had been under siege for almost two years. The Declaration, therefore, did not initiate the American Revolution. Instead, it marked a transformation in the revolutionaries’ collective self-conception of their armed enterprise. What began as resistance had quickly transformed into rebellion and then became a civil war. By the summer of 1776, the revolutionaries viewed their enterprise as a war for national independence. They wanted others, at home and abroad, to see it as they did, too. The Revolution, they claimed, was no longer a domestic rebellion between king and colonies. There could be no honorable reconciliation of the provinces back into the British Empire. It was now an international war. The drafters stated their international ambitions clearly in the Declaration's first sentence. “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,” they began, “and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Thomas Jefferson (1743–1826), the principal drafter of the Declaration, emphasized in this opening sentence that the conflict was existential, involving the fundamental question of political allegiance and collective independence as international states. No longer a haphazard sequence of intraimperial conflicts, the Revolution was now imagined as an epochal series of “human events” that justified the American people's claim to assume their “equal station” as one of “the powers of the earth.” The thirteen colonies proclaimed themselves to be independent states—international states in what they saw as a preexisting European system of states.

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  Global Administrative Law and Deliberative Democracy

  Benedict Kingsbury, Megan Donaldson, and Rodrigo Vallejo

  This chapter attempts to bring ‘global administrative law’ (GAL) and democracy into conversation. It addresses two separate observations: first, that democracy currently lacks the tools to respond to the globalization and diffusion of political authority; and secondly, that GAL is not presently democratic—it has no room for democratic concerns in its emerging norms. As such, the chapter aims to give an overview of GAL and some of its contributions to international legal theory; explore the way in which GAL’s focus on innumerable capillary-level sites of power may open promising terrain for the instantiation of democracy beyond the state; consider how work on GAL can be enhanced by engaging with, and drawing ideas from, work on deliberative democracy; and note the rising impact and future potential of democratic striving in the practice of institutional entrepreneurship and GAL lawyering.

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  Contracts of Genesis

  Geoffrey P. Miller

  Among the many fascinating texts in the Hebrew Bible are a number of stories that describe the making, performance, and breach of contracts and contract-like arrangements. These include Abraham’s purchase from Ephron the Hittite of a burial ground for his wife Sarah, Esau’s sale of his birthright to Jacob for a mess of pottage, the performance by Abraham’s servant of a contract of agency to procure a wife for Isaac, Jacob’s employment agreement with his father-in-law Laban, Jacob’s sons’ negotiation and breach of a peace treaty with the Shechemites, Jacob’s fraudulent procurement of Isaac’s blessing, and Jephthah’s vow to perform a sacrifice in exchange for a military victory. Most of these stories are found in the book of Genesis. All or nearly all date from the earliest strata of texts in the Hebrew Bible, the “J” source. These stories are among the fundamental documents of Western culture. They have been studied, analyzed, and interpreted for three thousand years. To the best of my knowledge, however, they have never been considered from the standpoint of legal-economic theory. This article attempts such an analysis. Drawing on archaeological, anthropological, and textual scholarship, I situate these stories within the historical context in which they appear to have developed. This was the period recounted in the book of Judges: a time when “there was no king in Israel,” no geographically extended authority claiming a monopoly in the use of coercive force, no standing army, no capital city, no formal courts, and no archive or authoritative system of written records; in short, there existed no one of the institutions that even in ancient times inevitably attended the establishment and organization of a nation-state. Social conditions such as these presented enormous difficulties for the organization of society in any but the simplest form. The problems can be understood and analyzed from the standpoint of legal-economic theory. Among the fundamental tenets of law and economics is the proposition that human welfare is greatly enhanced if property rights are clearly defined and effectively and readily transferable. These is no reason to suppose that this proposition held any less true in ancient times than today. Social conditions in ancient times, especially those prevailing in the hill country of Canaan at the time of the Judges, however, presented special problems when compared to current conditions. The definition and transfer of rights is difficult enough today, even with all the benefits of an established central authority and a technologically advanced society. These functions were far more difficult in the stateless and technologically impoverished (by our standards) society of the period of the Judges. In the absence of a state wielding a monopoly of force, the enforcement of executory contracts was inevitably problematic. Once one party had performed, the other party might well be tempted to take the benefit of the performance and then renege on his own promises. Further, in the absence of an authoritative system of written records, the contractual obligations themselves were subject to great uncertainty. Most contracts were oral and, accordingly, subject to the vagaries of memory and the possibility of fraud. Disputes over contractual meaning were likely even among parties acting in good faith. And good faith was by no means assured, especially when the contracting parties were not tied by bonds of clan or cult. The possibility of disputes would have deterred the contractual process at the outset since the parties could not be sure of obtaining the benefit of their bargains. Even more problematic, disputes over contract terms were likely to lead to violence and even blood feuds in the absence of an established state claiming a monopoly of coercive force. In my view, many of the stories in the J source served the important social function of embodying and culturally transmitting rules of customary law that responded to the problems of contract and quasi-contract formation and enforcement in a society without an established state. Indeed, the social importance of this function largely explains why these particular stories survived and passed through the oral tradition to be collected by the authors of the J source and incorporated into the great national epic of the newly formed state of Israel. These stories, of course, do not resemble “law” of the type with which we are familiar today. Unlike other, explicitly legal texts in the Hebrew Bible, these texts do not expressly set forth binding prohibitions or injunctions. Nor do they record the decisions of a tribunal with the authority to adjudicate disputes. They instead appear to be tales about important events in the livers of the Patriarch and other heroes of the Israelite people. There is a good explanation, however, for why principles of customary law would be embodied in narratives of this type. In a society without an authoritative system of written record, there was an enormous premium of ease of memorization. Vibrant, lively stories such as the tales of the Patriarchs were easy to remember and could be carried in the culture without the intercession of any cohort of specialized functionaries such as scribes or, in later times, lawyers. Rules of customary law could be easily passed along in the culture by being tagged to stories such as these. The stories, moreover, tended to be self-authenticating because the protagonists were charismatically endowed tribal ancestors whose actions conveyed patriarchal authority. As we will see, the rules of customary law that can be drawn from these stories are, in general, not ones in use today. Indeed, many of these rules appear harsh and even unjust. The Jacob-Esau story, for example, seems to carry the message that a contract for sale is valid and enforceable even if made under conditions of extreme inequality of bargaining power. The moral ambiguities of these and other stories in the J source pose a challenge to theological interpretation: why did these divinely inspired Patriarch occasionally behave so badly? Seen as embodiments of customary law, however, and placed in the social setting in which they arose, these texts can be explained in a relatively straightforward fashion. The dangers of disputes over meaning in a society without a state or an authoritative system of written records created an urgent need for bright-line rules in the interpretation of contractual and quasi-contractual behavior. Many of the stories I discuss in this article – including the Jacob-Esau tradition – convey exactly such bright-line rules. Occasional unfairness in application was a cost that the society had to bear in order to avoid the even greater costs of uncertainty in interpretation. Moreover, in light of the social conditions of the times, it is rather easy to explain why the stories that were preserved in the oral tradition and incorporated into the J source often seem so morally problematic. The premium on memorization imposed by the absence of an authoritative system of written records implies that the stories that survived in the tradition would convey information as efficiently as possible. Far more information is conveyed by the hard case than by the easy case since the easy case leaves the hard cases open whereas the hard case disposes of the easy ones a fortiori. Many of the stories in the J source about contracts and quasi contracts are hard cases – indeed, sometimes as hard a case as could be imagined, as in the case of the Jacob-Esau tradition, where a birthright is exchanged for some lentil stew, or the vow of Jephthah in which the hero is required to sacrifice his own child. As hard cases, they conveyed information in the culture with impressive efficiency. The stories that do not contain hard cases can be explained on other ground. The story of Abraham’s purchase of a tomb at Machpelah, for example, repeatedly stresses the fairness and goodwill exercised by all parties to the contract; as discussed below, this story constitutes the oral recordation of a deed to real property; the easiness of the case protects title to the property of warding off potential claims of fraud by the seller or his descendants. Many, perhaps most, of the interpretation put forward in this article are, to the best of my knowledge, new to biblical scholarship. This apparent originality necessarily gives me pause, for these texts are among the core documents of Western culture. If these interpretations are valid, would they not have been advanced before by some of the great thinkers who have devoted their livers to reading and pondering these texts? I have delayed publishing this article for several years out of concern that my ideas may be wrongheaded or howlingly misguided and have sought the advice of eminent biblical scholars. Yet, as I have continued to study and analyze these and other biblical texts, I remain convinced that the interpretations are plausible and even persuasive. The originality of many of the interpretations stems, I think, from the fact that I am applying a relatively new discipline of legal-economic analysis to texts that have usually been interpreted from other perspectives. I wish to stress one other point at the outset. In viewing these biblical texts from this secular perspective, I in no way intend to denigrate the great spiritual meaning and the astounding literary beauty that they also contain. My own initial interest in these texts was from a spiritual rather than a secular and analytic standpoint. I believe, however, that texts as profound as these can contain many meanings, spiritual as well as secular, and that the secular meaning do not detract from their spiritual message. In this article, I attempt to offer one possible secular meaning as a addition to the many-textured meaning already recognized within these magnificent stories. This article is structured as follows. Section I describes some of the findings of biblical textual criticism that dates most of the texts discussed in this article from the earliest period of the Hebrew Bible’s compilation. This section then outlines some of what is known about the social conditions in which theses texts appear to have developed, derived both from the Bible itself and from archaeological investigation. Section II proceeds to the analysis of particular texts. Section III summarized the findings.

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  The Kingdom of God in Samuel

  Geoffrey P. Miller

  This paper discusses certain texts in the Hebrew Bible that address the idea of theocracy, the political system in which authority is exercised by God’s representative on earth. The treatment of this topic in the Hebrew Bible is subtle and nuanced, recognizing virtues in theocratic rule but concluding, overall, that it does not deliver sustainable and effective governance in the real world.

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  Equality Rights and Stereotypes

  Sophia Moreau

  This chapter critically assesses the idea that what makes discrimination wrong or unfair is the presence of tacit stereotypes or generalizations about the traits that members of a certain group are alleged to have by virtue of their membership in that group. This conception of discrimination as a form of stereotyping may seem to explain why we need to give special constitutional protection to equality rights. The author argues, however, that it is the harmful effects that particular stereotypes (involving traits such as race, sex, and religion) have on members of these groups that are central to whether a law is unfairly discriminatory. She suggests that we need to think further about whether equality rights are best understood as protecting us against just one of these effects, or a combination of them.

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  Digital Copyright Exhaustion and Personal Property

  Aaron Perzanowski and Jason M. Schultz

  Typically, copyright law is understood as a set of rules that governs intangible expression. But for consumers, copyright law governs the otherwise autonomous and intimate realm of our personal possessions. As invasive as it might seem, copyright law can tell us where we can play our records, to whom we can display our paintings, and whether we can resell our books. And as more and more of our possessions are digital, it can also tell us what devices we can use them on, where we can access them, and with whom we can share them. In this way copyright law serves as both a bridge and a barrier between intellectual and personal property, attempting to balance the competing interests of both regimes. For more than a century, copyright law mediated the tension between these two interests through the principle of exhaustion: the rights holder’s power to prevent distributing, using, or sometimes even reproducing a work yields to the personal property interests of consumers once they lawfully acquired a copy of a work. As a result, exhaustion enables libraries to lend their books, museums to display their paintings, and consumers to fill up their bookshelves, borrow DVDs, and back up their software. Rather than an idiosyncratic carve out, exhaustion is an inherent part of copyright law’s balance between the rights of creators and the rights of the public. It is a fundamental component of almost every intellectual property system, one that recognizes that the rights of consumers are not at odds with the goals of the copyright system, but at its core. Meaningful consumer rights to use and transfer personal property are essential to the ultimate goals of the copyright system, public access to, and enjoyment of, new creative works. Exhaustion also helps preserve copyright’s legitimacy and lawful markets for copyrighted works by encouraging consumers to pay supra-competitive prices in exchange for the right to use, alienate, and under certain conditions, modify their copy. Nonetheless, exhaustion has become controversial as of late, with many commentators and copyright owners arguing that it is nothing more than a legacy loophole or market inefficiency that allows consumers to make unauthorized uses of intellectual property rightly controlled by the copyright owner. And in recent years, rights holders have taken aggressive steps to undermine exhaustion and weaken consumer property interests in an effort to shift the property balance in their favor. They have argued that exhaustion does not apply to goods imported into the United States or to copies manufactured abroad; they have developed technologies to block the resale and use of pre-owned media; they have used spurious complaints to remove legitimate used items from secondary markets like eBay. These efforts have met with mixed success. But two legal and technological trends have proven much more effective in curtailing exhaustion and threatening consumer interests. The first is a set of copyright holder efforts that seek to redefine the notion of ownership by characterizing certain consumer transactions as licenses even when they “buy” the work. Second, technology has shifted consumer purchases in copyright markets away from tangible copies. Rather than picking up books and records from store shelves, we stream, download, and store content in the Cloud. These shifts have created something of a crisis for the exhaustion doctrine. In an economy premised on tangible goods, exhaustion is a concept so deeply engrained that it often goes unnoticed. But in the digital marketplace we increasingly occupy, exhaustion risks being dismissed as an anachronism, a concept that simply cannot be ported into the economy of bits. According to copyright holders, you do not own the digital media you purchase online. According to the Ninth Circuit, you do not own the plastic disc on which your software programs are encoded. And according to General Motors and John Deere, you do not own the software embedded in your car or your tractor. In short, the very notion of personal property is under attack. This chapter, building on our earlier work, attempts to find a way forward for the exhaustion doctrine. We suggest that the equilibrium between personal and intellectual property enabled by exhaustion depends on assumptions about the copyright marketplace that are quickly becoming outdated. And we argue that consumer rights must be preserved, but in a manner that recognizes the differences between digital and analog distribution.

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  The Emergency-Room Law School Clinic

  Joy Radice and Randy A. Hertz

  Assessments of the nature and efficacy of legal education often compare the field unfavorably to medical education. It is typically said that our society wouldn't allow a new physician to treat patients without having gone through adequate clinical fieldwork instruction in addition to classroom learning, and yet we allow new lawyers to represent clients in profoundly consequential matters without having previously engaged in actual practice under expert supervision. With the very recent changes in the accreditation standards for law schools that come into effect next year, all law students will now have to take six credits of “skills instruction,” but even this new rule will not require student practice during law school since it can be entirely satisfied with simulation courses. Looking to medical education for guidance, we will explore whether the emergency room of a teaching hospital can serve as a model for a “full immersion” law school clinic that would teach law students the complete array of cognitive and practical skills that are essential for effective lawyering. This chapter proposes an emergency-room clinic that would parallel emergency-room rotations for third-year medical students. As in medical school, law students would take classroom courses to ground them in substantive knowledge and professional values before they enter the emergency room. Once in the emergency-room clinic, law students would conduct intake, employ diagnostic skills, and pursue remedies under expert supervision and training, just as medical students do. In addition to serving educational goals, this clinic is a model for how law schools can respond directly to the civil access to justice crisis documented elsewhere in this book by representing low- and moderate-income individuals.

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  The President as Intelligence Overseer

  Samuel J. Rascoff

  Intelligence oversight typically describes a set of processes and institutions designed to deter and detect illegality and abuse. This chapter focuses on another sense of intelligence oversight, distinguished by its concern with promoting effective intelligence collection while seeking to minimize a wide range of costs, including diplomatic blowback, economic harm to American firms, and intrusiveness that threatens privacy rights. It argues that the institution that has begun to furnish this more holistic sort of oversight, and that enjoys conspicuous advantages over preexisting bodies in doing so, is the president, aided by his staff (especially the NSC). This chapter offers a descriptive account of the rise of presidential intelligence (emphasizing the roles of technology firms and American allies), a qualified normative defense of its value (in addition to, rather than instead of, existing oversight bodies), and a set of prescriptions for how to design institutions to realize its full potential.

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  Racial Covenants and Housing Segregation, Yesterday and Today

  Carol M. Rose and Richard R. W. Brooks

  This chapter explores the role of privately created racially restrictive covenants in American housing segregation. Racial covenants were common in residential deeds in the early twentieth century, purporting to prevent future owners from selling their homes to “non-Caucasians.” These covenants were treated increasingly leniently in the courts for the first forty years of the century. That pattern changed abruptly with the 1948 decision Shelley v. Kraemer, which rendered racially restrictive covenants unenforceable in the courts. Despite Shelley, however, racial covenants continued to be written into new deeds until the practice was made illegal through the Fair Housing Act of 1968. Even thereafter, however, racial covenants continued to appear in real estate records. Today, overt racial restrictions are widely ignored, but they are still very difficult to eradicate from the old records. This chapter gives some possible answers regarding their persistence, including the “sticky” characteristics of Anglo-American property law, as well as the response of real estate and finance professionals to what they have considered to be market demand.