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  Rethinking the French Liberal Moment: Some Thoughts on the Heterogeneous Origins of Lefort and Gauchet's Social Philosophy

  Noah Rosenblum

  Recent scholarship has taken an interest in the renaissance of French liberal thought in the second half of the twentieth century. This “French liberal revival” has swept up scholars and commentators alike, and is often thought to include the important French philosophers Claude Lefort and Marcel Gauchet. But, as work in intellectual history has shown, the term sits uneasily on at least these two. On close examination, we see that some of their mature thought is only ambiguously committed to liberal goals and rests on complex philosophical premises that are incompatible with some traditional liberal arguments. Tracing aspects of their social thought back to its roots reveals how deeply opposed to liberalism some of their premises were and helps us see how they carried illiberal ideas forward into new contexts. This forces us to take a new perspective on at least this piece of the twentieth century’s French liberal moment, revising accepted stories of its origins and meaning. Recognizing the heterogeneous sources of their argument leads us to appreciate Lefort and Gauchet’s creative work of reconstruction and resist the urge to canalize their powerful social philosophy.

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  Improving Antitrust Sanctions

  Daniel L. Rubinfeld

  Our current systems of private and public enforcement can be improved if more attention is given toward increasing individual incentives. Public enforcement can benefit from appropriate targeted prison sentences, while private enforcement would benefit from a more expansive set of whistle blower opportunities and rewards.

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  Limits to Party Autonomy at the Post-Award Stage

  Maxi Scherer and Linda J. Silberman

  Party autonomy is often said to be one of the cornerstones of international commercial arbitration. The previous chapters of this book discuss the fundamental principle of party autonomy—as well as its limits—throughout the arbitral procedure, including regarding the composition of the arbitral tribunal, the choice of arbitration rules, the arbitrators’ powers, their Kompetenz-Kompetenz to decide on jurisdictional issues and the rules governing the merits of the dispute. Although limits exist, it is safe to assume that party autonomy is an overriding principle throughout the arbitral process. This chapter discusses whether the same is true once the award has been rendered. It assesses the role of, and limits to, party autonomy at the post-award stage. More specifically, it examines whether, and to what extent, the parties can influence the review of the award made by national courts at the seat of the arbitration. Parties dissatisfied with the award may start proceedings at the seat of the arbitration asking the court to vacate or set aside the award. Set-aside proceedings are governed by the law of the seat, including the grounds for a set-aside, and thus vary from jurisdiction to jurisdiction. Based on the principle of party autonomy, parties may try to influence the regime of set-aside proceedings in one of two ways. They may want to restrict review, either partially or fully excluding review by the courts at the seat. Alternatively, they may want to agree on more expansive review by adding to the existing grounds of review, possibly even providing for full review of the merits of the award. The chapter examines the effects of parties’ agreements to expand or restrict the review of the award by national courts in set-aside proceedings. Section II gives an overview of the different solutions adopted in a number of jurisdictions around the world. In most of these countries, statutory provisions address the question of whether the parties may agree on a restricted review. Such agreements are enforceable under certain conditions in some jurisdictions, but are unenforceable in others. In addition, this section analyzes case law developed in some countries that have addressed the converse question whether, and to what extent, parties are free to agree on an expanded review. Following the overview of these different positions around the world in Section II, Section III examines the situation in the United States. In 2008, the U.S. Supreme Court in Hall Street denied the parties’ freedom to agree on an expanded review at the set-aside stage in a domestic arbitration case, but the decision has triggered more questions than answers. The paper discusses the implications of Hall Street, including whether the same rationale applies to cases that fall within the New York or Panama Conventions or applies to cases where the parties have invoked U.S. state law to govern the arbitration. Finally, Section IV surveys the relevant policy considerations for deciding whether or not the parties’ agreement to expand or restrict the review by national courts should be held enforceable and analyzes the policies that appear to have influenced the current solutions, and discusses which of those are the most relevant and thus—from a normative point of view—should influence the correct approach to be adopted.

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  Enhancing Effectiveness in Counterterrorism Policing

  Stephen J. Schulhofer

  Officials who lead the counterterrorism effort at national and international levels now recognize that the apparatus of conventional law enforcement is of crucial importance for their mission. Local police have become a vital source of counterterrorism intelligence, and they often make a leading contribution to the measures deployed on the ground to thwart incipient terrorist plots. Indeed, counterterrorism analysts increasingly are aware that local police can not only help identify ‘homegrown’ terrorists, but also can play a major role even in connection with intelligence-gathering efforts aimed at checking dangers that arise abroad. Because local law enforcement agencies are well situated to building relationships with the communities in which terrorists try to hide and recruit members, a RAND Corporation report urges local police to ‘actively encourage and cultivate cooperation by building stronger ties with community leaders . . .’ This conception of preventive law counterterrorism basically echoes that which emerged from the ‘community policing’ insights of the 1980s and 1990s. As Gary LaFree and James Hendrickson note, ‘In many ways the community-oriented approach favored by successful police departments is the same kind of approach that is most likely to uncover terrorist operations’. Other analysts have similarly stressed that ‘state and local law enforcement agencies . . . may be uniquely positioned to augment federal intelligence capabilities by virtue of their presence in nearly every American community [and] their knowledge of local individuals and groups . . .’ Even in military operations abroad, American military doctrine now cautions against exclusive reliance on heavy firepower and stresses the benefits of using tactics similar to those deployed in domestic policing. The army’s Counterinsurgency Field Manual notes that ‘the civilian population [is] . . . the deciding factor in the struggle’ and that the pivotal issue is the ability to secure their support. Local police can therefore make a key contribution to the policy mix because they have daily interaction at the neighborhood level and can use their contacts to elicit information held within local communities. Yet law enforcement and counterterrorism agencies are divided or uncertain about the optimal ways to exploit these capacities.

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  The Rising Tax-Electivity of U.S. Corporate Residence

  Daniel N. Shaviro

  In 1975, Bill Gates moved to New Mexico and founded Microsoft there. This may have been a mistake. William Woods, while head of the Bermuda Stock Exchange, claimed that Gates “would be fabulously more wealthy if he had started Microsoft in Bermuda . . . [H]is ignorance about tax cost him a fortune.” As the author of the article quoting Woods, adds, “Mr. Gates has not done badly even so, but he knows better now. The new company that he recently cofounded is now incorporated in Bermuda.” Notwithstanding any boosterism or hyperbole that one might detect in this statement, Woods had an undeniable point. Gates' new company, as a foreign corporation for U.S. federal income tax purposes, is taxable in the United States only on what the U.S. rules classify as domestic source income. Microsoft, by contrast, as a U.S. corporation and thus, under the rules, a resident taxpayer just like any individual who is an U.S. citizen, potentially is taxable in the United States on all of its worldwide income. This may be inconvenient for a company like Microsoft, not just because it earns vast profits abroad, but also because its resident status impedes tax planning that otherwise might have been available to minimize its domestic source income, as defined by the U.S. rules. Once a company is incorporated in the United States, however, escaping its status as a U.S. resident is difficult. It may require genuinely being purchased by new owners, such as a private equity fund or else a distinct foreign company with its own shareholders and managers. “Real” expatriations of this kind do happen, and U.S. international tax law effectively encourages them by making them a magic bullet for eliminating domestic resident status, but the associated ownership disruption may go well beyond what a large, successful company such as Microsoft is willing to contemplate just for the tax benefits. Bill Gates is not the only entrepreneur to learn in recent years that up-front U.S. incorporation of a contemplated multinational enterprise may neither be wise from a tax standpoint nor necessary from a business standpoint. Increasingly, Americans forming new companies with global business potential, as well as foreigners who want to reach investors in U.S. capital markets, have found that they do not need to pay the tax price of incorporating at home. Foreign incorporation—often in jurisdictions such as Bermuda and the Cayman Islands that lack significant domestic income tax systems—has become more common, and I have heard U.S. tax lawyers joke that recommending (or even not objecting to) U.S. incorporation of an intended global business verges on being malpractice per se. Increasingly, moreover, other countries—not just those like Bermuda and the Cayman Islands that cater to foreign investors, but even major industrial powers like England, France, Germany, and Japan--do not comparably attempt to tax resident companies on their worldwide business income. Instead, they have primarily territorial tax systems (also known as exemption systems), in which resident companies' foreign source active business income generally is exempt from domestic taxation. This effectively increases the relative tax price of U.S. incorporation for a projected global business. The fact that U.S. incorporation of new global businesses is moving towards being just an undesirable election—whereas terminating U.S. residence for existing companies is far more difficult—is at once well-known in the international tax policy literature, and yet, to a surprising degree, ignored. Each half of the picture has an important implication. Rising electivity for new companies is potentially a game-changer. The long and frequently vociferous debate about whether the United States should seek to strengthen its worldwide taxation of resident companies, or instead follow the rest of the world by moving towards exemption, would become a historical curio over time if there were no significant nontax reasons for incorporating in the United States. A mere election to pay more tax, by gratuitously subjecting oneself to the U.S. worldwide system (such as it is), would make too little sense even to matter-though, by the same token, this would rebut claims by exemption's proponents that this system was actually harming the U.S. economy. Moreover, while electivity is likely to remain incomplete, the underlying factors thus limiting electivity need analysis, as they help determine the actual consequences of a worldwide residence-based tax.

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  The International Tax Program—Reflections on the First Two Decades

  John P. Steines Jr

  Except for the Class of 2002, when I was on sabbatical leave, I have taught the core U.S. cross-border material to all twenty ITP classes. Several ITP students have also been in my course in partnership taxation and in a seminar on cross-border acquisitions, arbitrage, and currency issues. For better or worse, all ITP students have taken at least four credits from me, many two or five more, and a select persecuted few a full eleven credits (nearly half of their course load). I am aware of only a handful who have abandoned professional tax practice, and it has not been suggested, at least in my presence, that my teaching was instrumental to the defections. So, if nothing else, I feel poised as well as anyone to comment on the experience of instructing the ITPs, as they are known casually, in the horrors of U.S. income taxation. During the first third of its existence, Paul McDaniel created and ran the program; David Rosenbloom has now been at the helm for the ensuing two thirds. The very first class was Eurocentric, nearly two thirds of the students hailing from Western Europe. Over time, Asia, Central and South America, and, to a lesser extent, Africa filled the ranks. The current class reflects the global trend. As academically distinguished as the ITPs have always been, the prospect of gaining proficiency in the most complicated tax system in the world, one radically unlike the home-country systems they are familiar with, in a foreign tongue they have studied but typically not regularly spoken, is beyond formidable. The first few class sessions are a dip in a freezing ocean of debatable principles, strange concepts, and inordinately technical rules, at a depth that most of the students are not accustomed to. Written on their faces is worry that coming to NYU might have been a mistake. I try to dispel the anxiety by explaining, how convincingly I'm never sure, that they will be lost during the first several weeks but that eventually they will catch on. And, to their amazing credit, nearly everyone does.

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  Global Standards for National Societies

  Richard B. Stewart

  States have established, through treaty-based intergovernmental organizations and networks of specialized domestic government agencies, myriad global regulatory programmes to overcome the inadequacies of purely national policy measures and secure the welfare of their citizens under conditions of intensifying global interdependence and rivalry. These global regulatory programmes occupy three broad and often overlapping policy fields: security; promotion and regulation of markets; and moral objectives, including human rights, social development, and environmental protection. A great variety of private and hybrid public-private global regulatory bodies have also sprung up in the past three decades. In addition, international courts and tribunals have assumed important global regulatory functions. This chapter focuses on the reception and implementation by national administrations of the substantive, institutional and procedural regulatory norms generated by these various global actors, with particular attention given to the roles of Global Administrative Law (GAL) norms and practices of transparency, participation, reason giving, and review. Many intergovernmental regulatory regimes are aimed at regulating the conduct of states in areas as diverse as chemical weapons, refugees, human rights, development assistance, and payments to governments for resource exploitation. Other global regulatory programmes are directly or indirectly aimed at regulating the conduct of private actors. With some exceptions, global regulators generally lack the authority or capacity to directly implement and execute their regulatory norms and decisions. National administrations, as well as domestic courts, function as the primary implementing or distributed administrations of state-based global regulatory regimes and international courts and tribunals; they also sometimes assume this function for hybrid and private global regulators. Global regulatory programmes in the fields of military, markets and morals reflect three different types of approaches. First, many global regulatory regimes seek to solve global coordination and cooperation games among public or private actors. In order to successfully carry out objectives such as expanded trade and investment, security, and environmental protection, they require systematic, consistent, and effective implementation of and compliance with their regulatory norms and decisions. Achieving this objective is especially challenging in the context of global public goods, such as climate protection or international security, where states or other actors may be tempted to free ride on the efforts of others. The second category are global regulatory programmes that seek to protect the rights of individuals or discrete groups, be they refugees, foreign investors, holders of intellectual property rights, or local communities displaced by internationally funded development projects. Third, still other global programmes seek broadly to promote openness, regularity, accountability, and responsiveness in domestic administrative governance. GAL procedures play important but somewhat different roles in these three different types of global programmes and their implementation by national administrations. International courts, tribunals, and compliance bodies also play an increasingly important role in generating and promoting adoption of global regulatory norms by national administrations. These bodies are of two basic types. First, there are tribunals and compliance bodies that are integral components of global regulatory regimes, such as the World Trade Organization (WTO) dispute settlement bodies, which elaborate and secure compliance by national administrations with specialized substantive and procedural regulatory norms in order to solve global cooperation games and protect rights. Examples include the International Tribunal for the Law of the Sea (ITLOS), the Court of Arbitration for Sport, and the Aarhus Compliance Committee. Second, there are independent international courts, including the International Court of Justice and the various international human rights courts. The remainder of this chapter first discusses the different types of global regulatory bodies and their distributed administrations. It then reviews the different types of substantive and procedural global regulatory norms and the incentives and means for their adoption by domestic administrations. Using principle-agent analysis, the chapter next examines various measures that global bodies take to ensure loyal and effective implementation of their regulatory norms by their distributed administrations, and the roles played by GAL norms of transparency, participation, reason giving, and review. Finally, it discusses domestic contestation and resistance to global regulatory norms and related issues of accountability. The chapter concludes with a brief assessment of the current state of affairs.

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  Intellectual Property at the Boundary

  Katherine J. Strandburg

  There is today no doubt that significant creative work—both commercial and noncommercial—is organized neither by market transactions using legally defined intellectual property nor by top-down task management within firms, but by privately ordered governance regimes. For example, researchers studying user innovation have observed that user innovator communities often share information about their innovations freely with one another, while eschewing reliance on patent protection. These innovation governance regimes are quite different from the atomistic markets and hierarchically organized firms implicitly assumed by standard intellectual property theory. They generally rely on some combination of informal norms (often collectively enforced by reputational rewards and sanctions), more formalized governance mechanisms, and reciprocity (what von Hippel has called know-how trading). In some contexts where such privately ordered innovation governance is observed, formal intellectual property is unavailable either as a matter of law or as a practical matter because of its expense or the time needed to acquire it. Many creative groups, however, apparently including many user innovator communities, actively discourage reliance on formal intellectual property even when it is available. For example, physicians form a user innovator community for medical procedures and methods, and they have maintained ethical strictures against patenting such innovations for over 150 years, despite the fact that such methods are potentially patentable (at least in the United States) and that physicians currently have no such strictures against patenting drugs and medical devices. This chapter is most interested in groups that eschew legally enforced intellectual property despite its availability, relying on private innovation governance regimes instead. As I explain in the first section, there are general reasons to expect that such alternative regimes can be more effective than formal intellectual property at encouraging innovation within some creative groups. The chapter’s main focus is on the boundaries where these alternative innovation regimes butt up against the intellectual property-based market. What occurs in these boundary zones is critical to the stability of the privately ordered innovation governance regimes, to the transfer of socially valuable innovations between creative groups and outsiders, and to the potential for collaboration across these boundaries. But, except in the case of university technology transfer, the boundaries between privately ordered innovation regimes and the intellectual property-based market have yet to receive much attention from researchers. Only recently, for example, has user innovation research begun to focus on user entrepreneurship or on the diffusion of user innovation. This chapter maps out some of the issues that arise at the points where alternative innovation governance regimes meet intellectual property-based markets. The chapter concludes with suggestions for further study of the way in which these boundary interactions affect the overall innovation environment.

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  IOLE in the United States: The Relationship Between a Country’s Legal System and Its Legal Education

  Frank K. Upham

  As is true for all jurisdictions, law in the US has unique features that are structural aspects of the American legal profession that have existed for decades and are likely to remain in their current form for the foreseeable future. Some of these characters of the US legal system relate directly to legal education, and to recent developments that may change legal education significantly in the near future. The US is a federal jurisdiction that unusual in the number of separate sovereign state jurisdictions within it. Compared to Canada, for example, which has 10 provinces and 3 non-self-governing territories, the United States has 50 states with their own independent and sovereign legal systems (and the District of Columbia, which although part of the federal system, maintains its own judiciary and bar). Each state controls the entry into the legal profession in that state, and thereby has ultimate control over legal education in the state, at least to the extent that legal education is aimed at preparing graduates to practice law locally. Legal education in the US is further complicated by the fact that several states, such as California and New York, have substantial indirect control over legal education nationally because of their large legal markets and the desire of graduates from other states to practice there. A second complicating factor is the nature and structure of the profession and especially of the judicial and prosecutorial branches. The American legal profession is radically unified. Unlike some civil law jurisdictions such as Japan, there are very few boundaries, formal or informal, institutional or social, among the different branches of the American legal profession. Qualified jurists shift relatively easily from the private bar, to the judiciary, to government service including as federal and local prosecutors, and to academia. Almost all fulltime permanent professors are qualified to practice and many do, and many fulltime judges and attorneys teach regularly as adjunct professors. The permeability of the different legal roles is related to another structural characteristic that is perhaps the most distinctive aspect of American law when compared to many civilian regimes. All branches, especially judges and prosecutors, are deeply enmeshed in partisan politics and the process of moving from one to another is usually political. While an argument can be made that all democratic legal systems are inevitably political in the sense that political controversies can become legal and arrive before a court, in the US the jurists in these dramas are not only playing broadly political roles, but they are also them- selves politicians in that they have been chosen for the role by a politicised, if not always directly partisan, process. In a majority of states, judges are subject to some form of direct popular control by the same electorate that selects other government officials. In many states they are selected in partisan elections running as either Republicans or Democrats closely and formally linked to the state party machinery. In other states, the elections are non-partisan; in still others the state governor appoints them subject to confirmation by a separate professional or legislative institution. In some states, lower court judges need not even be members of the profession. The approximately 900 federal judges, on the other hand, are appointed by the President, typically upon the recommendation of the nominee’s home state’s members of Congress, and confirmed by the Senate. The appointment process has become highly politicised over the last few decades, and one of the inevitable issues in the quadrennial presidential elections is the future composition of the federal judiciary. Those selected are generally of high professional quality and the process does not have the directly partisan nature of state judicial elections, but it is nonetheless safe to say that an acceptable political ideology is an indispensable requirement for selection as a federal judge. State and local chief prosecutors are similarly chosen through a political process at the state level, with state Attorneys General often popularly elected and local District Attorneys invariably so and usually on openly partisan lines. The deeply political nature of both of these branches of the legal profession is the more specific expression of a more pervasive third distinctive factor of American law: the deep involvement of the legal profession in American politics and government. In 1840 Alexis de Tocqueville said, ‘[t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one’. Nothing has changed. Of course law is embedded in politics in virtually all democratic countries. Even in Japan, where the conventional wisdom about the Supreme Court in particular and the legal system in general is that they are overly passive and politically irrelevant, the courts have not only shaped fundamental social norms but have also been the loci for political battles. In the US, however, it is not simply that the legal system is brought into political issues; politics is a lawyers’ game. Almost half of the US Congress consists of lawyers and a 60 of the 100 US Senators are lawyers. The numbers in state legislatures have declined in recent decades but remain comparatively very high. When one also considers the prevalence of legally trained staff in federal and state legislatures and American bureaucracies more generally, it is safe to say that America is governed far more by lawyers than by any other professionally defined group. The fact that a non-trivial number of their students will have realistic political ambitions and, looking at the same phenomenon from the opposite perspective, that American law schools are educating the future political and bureaucratic leaders of society, is reflected in American legal education. While the debates now surrounding the reform of legal education, including the need to prepare lawyers for an international practice, are aimed at the very different issues of cost and professional training, these debates take place against the background of an institutional culture that is conscious that it is forming not only a professional and technical cadre but also the core of both state and the federal governments and the politicians that direct them. Another distinctive feature to keep in mind is the size and diversity of American legal education. To put it simply, there are a lot of law schools and law students, literally more than can be readily counted. To begin with the most prominent and prestigious, there are 203 law schools with approximately 140,000 students accredited nationally by the American Bar Association, whose graduates are generally able to take any state bar. Then there are scores of law schools accredited only by individual state bar committees and there are also schools that are not accredited by anyone, but whose graduates can still take the bar in their home states. According to the ABA’s Comprehensive Guide to Bar Admissions 2013, 35 states do not require graduation from an ABA accredited school, allowing instead, variously, graduation from an ‘approved’ but not accredited school, law office study, correspondence study, and online study. As a result, law schools spring up in some jurisdictions like mushrooms after a fall rain, as is the case in California, where there are 21 ABA accredited law schools, 18 schools accredited only by the California Committee of Bar Examiners, and 23 which are merely ‘registered’ with the CBE. California can illustrate the variety as well as the number of schools. Stanford Law School is generally considered one of the best law schools in the country. It is expensive, has an outstanding faculty, is extremely selective in admissions, and enjoys excellent physical, technical, and financial resources. Contrast that to a school taken, not quite at random, from the list of unaccredited law schools. The University of Honolulu School of Law (UHSL for our purposes) located, bizarrely, in Modesto, California, far from the Pacific Ocean and even farther from Honolulu, Hawaii. UHSL is a correspondence school which is ‘dedicated to providing a quality and rigorous education at reasonable costs’ and whose ‘specific objective’ is to ‘provide students with a superior education without having to attend class.’ Although admissions are selective in that an application is required, there is no requirement of any formal education whatsoever, and only four faculty members are listed on UHSL’s website, one of whom is neither a lawyer nor a law graduate. My point is not to praise Stanford or to condemn UHSL. Given that Stanford’s tuition is $50,580 in 2013–2014 compared to $3000 at UHSL (whose students need not have spent a penny on undergraduate tuition) and that graduates of both can become full members of the California bar, who is to say which is the better approach to becoming a California lawyer? My point is not normative but descriptive: it is extremely difficult to generalise about American legal education. The final feature of American legal education that may distinguish it, at least in kind if not nature, from other legal systems is less fundamental, but no less important to understand as we consider the future of comparative law in American legal academe. American legal education is in crisis, or at least so say a great many authoritative voices, starting with the US President and including leading figures in the bar and professoriate. President Obama has called for a 33 % decrease in the time spent in law school; the Chief Justice of the US Supreme Court has ridiculed contemporary legal scholarship as useless; law professors have been criticised as unproductive, overpaid, and enjoying only a ‘remote relationship with the practice of law’; law school deans have called the economics of law schools ‘unsustainable’; students have filed class action suits against multiple law schools for fraud in their admissions practices; and members of the ABA’s Task Force on the Future of Legal Education claimed ‘almost universal agreement that the current system is broken’. The reasons for the sense of alarm are not hard to find: the last several years have witnessed a substantial drop in applications; the technological revolution that has already outsourced or eliminated myriad other white collar jobs is now eliminating and outsourcing legal work; and students often graduate with debt well over $100,000 and cannot find legal jobs, all paradoxically as the legal needs of average Americans are going unmet. A quick review of two recent books at the middle of this crisis can illustrate its dimensions. ‘Schools for Misrule: Legal Academia’ and an ‘Overlawyered America and Failing Law Schools’, by Walter Olson, a libertarian social commentator, and Brian Tamanaha, an elite law professor respectively, approach the issues from distinctive but intersecting perspectives. Olson’s argument is typical of much ideologically conservative criticism of the “cozy assumptions about the rightness of the views of members of the elite, thinking class” and “estrangement from Main Street opinion” that conservatives see permeating not only the legal academy, but also American higher education generally. His view of contemporary legal scholarship as “daffy, eccentric, or bonkers,” for example, echoes with the Chief Justice’s slightly more restrained characterization. Tamanaha’s critique is more structural and economic: he does not so much condemn contemporary legal education as warn that it cannot last. His problem with scholarship, for example, is not so much that it has departed from the largely doctrinal work of 50 years ago but that approaches like quantitative empirical work are too expensive and that American law schools cannot and should not continue to ask debt-ridden students facing uncertain employment prospects to pay not only for fancy inter-disciplinary methodologies but also for reduced teaching loads for tenured faculty. Indeed, one of the commonalities of these books and approaches is the attack on tenure and the research orientation that the authors believe characterize too many American law schools. Understanding these five features of contemporary American legal education will alert the reader to both the limitations in the generalisations in the chapter that follows, and the context in which attention to international and comparative law education arises in the United States.

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  Tribute to Barry Hawk

  A. Paul Victor, Eleanor M. Fox, Bruno Lasserre, Eduardo Perez Motta, and Larry Sorkin

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

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  Clarity, Thoughtfulness, and the Rule of Law

  Jeremy Waldron

  One form of indeterminacy that is commonly called ‘vagueness’ stems from the use of value predicates like ‘reasonable’ and ‘excessive’ in the law. This indeterminacy is not true vagueness in the philosophical sense, but it is interesting for legal philosophy nonetheless. A case can be made that the use of such predicates represents a distinctive way of guiding action—a mode of guiding action that may be more respectful of intelligent agency than the use of more determinate predicates in legal rules. The use of such predicates allows law to be thoughtful. But the case against using value predicates is that it may be difficult to align or coordinate the self-application of these norms with their secondary application by law enforcement officials and judges. They work best where there is substantial reason to expect such alignment, worst where there is good reason not to.

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  Isaiah Berlin’s Neglect of Enlightenment Constitutionalism

  Jeremy Waldron

  Enlightenment constitutionalism established the idea of a constitution as an intricate mechanism designed to house the untidiness and pluralism of human politics. It left, as one of its most important legacies, the unprecedented achievement of the framing and ratification of the Constitution of the United States. Yet Isaiah Berlin, supposedly one of our greatest interpreters of the Enlightenment, said almost nothing about it. This chapter speculates about the reasons for this neglect. Was it because it leant spurious credibility to Berlin’s well-known claim that Enlightenment social design was perfectionist, monistic, and potentially totalitarian? By ignoring Enlightenment constitutionalism, Berlin implicitly directed us away from precisely the body of work that might have refuted this view of Enlightenment social design.

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  "Just No Damned Good"

  Jeremy Waldron

  Moral realism is sometimes defended by arguing that “moral facts” provide the best explanation for events or situations in the world. Sometimes the events and situations that are allegedly explained in this way are beliefs about value or moral beliefs. These arguments pose special problems. But there is also a more general difficulty. The argument that moral facts sometimes provide the best explanation for other facts in the world is undercut by the logic of supervenience. Moral properties apply, when they do, by virtue of other properties on which they supervene. But in every case where the instantiation of a moral property is supposed to explain something, the explanandum is equally well accounted for by the state of affairs upon which the alleged moral explanans is supervenenient. Or, leaving supervenience aside, any moral statement that we make is (among other things) a way of drawing attention to the explanatory power of a non-moral proposition.

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  The Rule of Law

  Jeremy Waldron

  The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter phrase is used to designate some particular legal rule like the rule against perpetuities or the rule that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance. The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights. But these are much more controversial. And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires.

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  “Who Wants Juristocracy?” Who Indeed?

  Jeremy Waldron

  After and academic career spanning over forty years and engaging in many different areas of the law, Emeritus Professor John Smillie retired from the University of Otago in 2014. In honour of that achievement, this collection brings together a number of former colleagues, students and contemporaries to celebrate Professor Smillie’s significant contribution to legal scholarship. This collection contains eleven essays written by leading academic commentators from both New Zealand and abroad on a range of subjects reflecting Professor Smillie’s expansive oeuvre. From administrative law to tort; legal theory to civil obligations, the common denominator in Professor Smillie’s work was a search for legal certainty and clarity, and this is demonstrated in the responses in this collection to some of his most influential works. Other essays build on the foundations that Professor Smillie created, critique his particular brand of jurisprudence or simply reflect on his 41 years of teaching at the University of Otago. Academics, students and practitioners who are interested in the development and function of the common law will enjoy the essays in this collection, as will the many students and colleagues that were the benefactors of Professor Smillie’s dedication to the law.

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  Epilogue: Living in a Glass House: Europe, Democracy and the Rule of Law

  Joseph H. H. Weiler

  This book provides the definitive reference point on all the issues pertaining to dealing with the ‘crisis of the rule of law’ in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.

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  Taking (Europe’s) Values Seriously

  Joseph H. H. Weiler

  Commemorating 100 years of Frankfurt University, its Faculty of Law convened, in cooperation with the Cluster of Excellence "The Creation of Normative Orders," a workshop analyzing Frankfurt's role in the past development of public international law and European (Union) law as well as looking into the futures of these areas of law as essential components of a Law Beyond the State. Law Beyond the State brings together contributions by renowned experts on international and European Union law to celebrate the centennial of Goethe Universität Frankfurt. The essays explore Frankfurt's contribution to the development of international law; the historical development of international law; how this form of law can be used as a tool to improve the world and create a better future for all; the essential relevance of the spiritual dimension of legal orders, including the European Union, to ensuring their values will be taken seriously; and the possibility, offered by the Internet, for all persons concerned with global lawmaking to participate effectively in relevant decision-making processes

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  Human Mobility and Climate Change

  Katrina M. Wyman

  It is widely recognized that climate change will contribute to human migration. This chapter highlights aspects of the growing empirical literature on human mobility and climate change relevant to law and policy. Then it examines the gaps in protections available to persons who move for reasons related to climate change, and proposals to address these gaps. It concludes by identifying directions for future legal and policy research that reflect some of the themes in the empirical literature on climate change and migration.

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  The Pleasures of Punishment: Complicity, Spectatorship, and Abu Ghraib

  Amy M. Adler

  At the same time that the Supreme Court has come to insist on a radical distinction between representations of sex and violence as a matter of constitutional law, never have the two genres been more deeply intertwined, in popular entertainment, of course, but also in certain practices of punishment. This paper considers the phenomenon of “torture porn” to explore not only representations of torture and humiliation in popular culture, but also the ways in which popular culture has shaped practices of punishment. Here I explore photographs of Abu Ghraib (as well as other legal and cultural disputes over the disclosure of photographs of torture) to explore the ways in which the popular vernaculars of pornography and smart phone photography informed the practice of torture. I compare the photos to a burgeoning genre of reality TV shows from the same era in which in which the spectacle of humiliation, punishment and even torture plays a pivotal and seemingly pleasurable role in the drama. In both scenarios, I focus not only on the mixture of sexuality and violence, pleasure and punishment, but also on the critical role of the camera. Ultimately by analyzing the similarities between “torture porn” in popular entertainment and the visual materials produced at Abu Ghraib, I suggest a mutually productive relationship between popular culture and punishment.

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  Conversation

  Amy M. Adler and Rachel Harrison

  For Rachel Harrison’s exhibition at the Cleveland Museum of Art in 2015, Harrison and Professor Amy Adler contributed this wide ranging essay, styled in the form of a conversation, about Harrison’s work and about the nature of artistic creativity more generally. The essay was published in Rachel Harrison, G-L-O-R-I-A, the Yale University Press catalogue that accompanied Harrison’s exhibition.

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  The Transformation of Human Rights Fact-Finding: Challenges and Opportunities

  Philip G. Alston and Sarah Knuckey

  This introduction looks at the extent to which fact-finding endeavors have multiplied in recent years, which has often brought considerable controversy in its wake. The chapter defines the scope of the book, explores what might be meant by the phrase “human rights fact-finding,” and looks at the interplay between fact-finding at the international and domestic level. It then takes up two important developments that are changing the landscape of the practice. First, investigative methods are advancing. Innovation and expansion allow for a deepening understanding of human rights violations and greatly improves the amount and nature of available evidence. Second, critical orientations are more common, and practitioners are modifying practice in light of their concerns about the ethical posture and practical effects of their work. The chapter also raises the question of whether human rights fact-finding should be subjected to an international code or shared rules.

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  A Satyr Play

  Anthony G. Amsterdam

  Aeschylus’s Oresteia has fascinated legal theorists. And if there is one quirk of Jerry Bruner’s that makes him who he is, it is Jerry’s capacity to find fascination in everything. Unsurprisingly, The Oresteia has long captured Jerry’s imagination. In many of the meetings that preceded every class we taught together, he and I mused about what meaning we might make of the Aeschylean trilogy. We started from Kenneth Burke’s twin observations—one trite, one incisive—that “the great Greek tragedies were devices for treating of civic tensions . . . and for contributing to social amity by ritual devices for resolving such tensions,” and that when the social “network of expectancies and fulfilments . . . [is] summed up dramatically . . . [and] converted into the fullness of tragedy, . . . an almost terrifying thoroughness of human honesty is demanded of us, as audience.” Thoroughness drove us beyond the traditional view that The Oresteia celebrates the victory of the Rule of Law, rationally administered by courts of justice, over an eldritch regime of ever-recycling blood vengeance. But we balked at the opposing view that this supposedly civilizing victory was hypocritical and hollow: —that “Aeschylus por trays a cosmic and political order which is neither moral nor just, but rather tyrannical, in the sense that its ultimate foundations are force and fear.” Mondays and Wednesdays we saw the arc of the trilogy as ascending from the compelling savagery of the first play, Agamemnon, to the triumph of the Rule of Law in the third play, The Eumenides. Tuesdays and Thursdays we saw the arc as descending from Agamemnon’s raw, unflinching struggle of creatures trapped in the contradictions of the human condition into the The Eumenides’s conscience-drugging “dramatized legalism” and “ingenious hagglings.” Fridays we usually disagreed. The opportunity to try again to persuade my dearest friend and colleague of my [latest] reading of the mystery is irresistible. So, Jerry, here is that lost satyr play with which the Oresteia ends . . .

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  Capitalism and Human Progress

  Kwame Anthony Appiah

  This chapter discusses the relationship between capitalism and progress and ends with a discussion of three mechanisms for reducing some of the problems associated with markets. A familiar argument says that markets must advance progress under ideal conditions because they guarantee Pareto optimality. It is shown here that for a variety of reasons—among them the incommensurability of values, the incommensurability of persons, and the fact that history matters—Pareto optimality is neither necessary nor sufficient for progress. Capitalism—understood as the pervasive use of markets—appears, under modern conditions, to lead to greater material inequality, butwhat is problematic is (a) the absolute lack of certain basic resources and (b) the social and political inequalities associated with great differences in wealth. These last can be mitigated by the familiar state mechanisms of law regulation and tax incentives, but also by professional business norms sustained by a concern for one’s honor.

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  Race, Ethnicity, and Philosophy

  Kwame Anthony Appiah

  This chapter examines the role of metaphysics in the understanding of race and ethnicity and disputes Jorge J. E. Gracia's conceptions of race and ethnicity. It first considers Gracia's contribution to the philosophy of race and ethnicity before discussing his Familial-Historical View and Common-Bundle View of ethnicity and race, respectively. It critiques both views, claiming that they would require the addition of certain conditions for them to do what Gracia wants them to do; when those conditions are added, race and ethnicity cease to be what Gracia first thought they were. The two most important issues in question are the need to add the notion of an ancestral people to conditions of both ethnicity and race, and the fact that Gracia's formulation about race does not account for the difference between “Aborigines” and “Negroes.” The chapter argues that the notion of an ancestral people would help in the resolution of these two issues, although it would collapse the notions of race and ethnicity, contrary to Gracia's attempts to keep them separate.

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  The Case for Contamination

  Kwame Anthony Appiah

  Religion, Postcolonialism and Globalization: A Sourcebook shows how the roots of our globalized world run deeper than the 1980s or even the end of WWII, tracing back to 15th century European colonial expansion through which the 'modern world system' came into existence. The Sourcebook is divided into four sections, each with a critical introduction by the editor, a series of readings, and discussion questions based on the readings. Canonical readings in religion, globalization and postcolonialism are paired with lesser-known texts in order to invite critical analysis. Extracts explored include work by Max Weber, Edward Said, David Chidester, and Kant, as well as political documents such as the British Parliament's 1813 Act regarding the East India Company. Sources range from the origins of the common phrase "jihad vs. McWorld" in the work of Benjamin Barber, to personal essays reflecting religious responses to globalization. Focusing on a history of religions approach, Religion, Postcolonialism, and Globalization provides an alternative to existing sociological work on religion and globalization. Guidance on useful web resources can be found on the book's webpage.