Faculty Chapters

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  The Evolution of Meaning

  Kwame Anthony Appiah

  George Washington’s 1790 Letter to the Hebrew Congregation in Newport, Rhode Island, a foundational document in the history of religious freedom in the United States, embodies a vision of religious harmony that remains deeply pertinent in our increasingly diverse society. In Washington’s Rebuke to Bigotry, scholars from across the disciplines use the letter as a springboard to engage with important and timely questions regarding religious freedom, religious diversity, and civic identity. Washington’s Rebuke to Bigotry introduces readers to the complexities of the historical moment in which Washington wrote the letter, when America’s founding leaders were negotiating how the new democracy would approach religious difference. Many essays in this collection also bring the spirit of Washington’s letter into the present, reflecting on contemporary issues such as gay rights in the United States, restrictions on religious practice in the public sphere in European countries, and the place of religion in education.

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  The Law and Economics of Blockholder Disclosure

  Lucian A. Bebchuk and Robert J. Jackson Jr.

  The past two decades has witnessed unprecedented changes in the corporate governance landscape in Europe, the US and Asia. Across many countries, A rulemaking petition recently submitted to the Securities and Exchange Commission (SEC) by the senior partners of a prominent law firm advocates tightening the rules that have long governed the disclosure of blocks of stock in public companies. The Commission has subsequently announced a rulemaking project to develop proposals for tightening these rules, and members of the Commission’s staff have signalled that the staff is prepared to recommend that the Commission adopt such proposals. Chairman Mary Schapiro, acknowledging the ‘controversy’ surrounding these important rules, has indicated that the Commission is actively considering whether to adopt the changes proposed in the Petition. In this chapter, we provide a detailed framework for the Commission’s examination of these rules. We argue that the Commission should not proceed with changes to these rules before undertaking a comprehensive examination of their economic implications for investors. In the meantime, the existing research and available empirical evidence provide no basis for concluding that the tightening of disclosure thresholds advocated by the petition would protect investors and promote efficiency, as the Commission’s rules must; indeed, the existing research and empirical evidence raise concerns that such tightening could harm investors and undermine efficiency. Our analysis proceeds as follows. In Section 18.2, we explain why policy analysis weighing the advantages and disadvantages of tightening these rules is needed before the Commission proceeds with the proposed tightening. It might be argued that more prompt disclosure of information is unambiguously desirable under principles of market transparency and was the clear objective of the Williams Act, which first established these rules by adding Section 13(d) to the Securities Exchange Act in 1968. Thus, at first glance one might conclude that the Commission should tighten the rules without consideration of the costs and benefits of doing so. Unlike ordinary disclosure rules that require insiders to provide information to investors, however, the Williams Act imposed an exception to the general rule that outside investors in public-company stock are entitled to remain anonymous. The drafters of the Williams Act made a conscious choice not to impose a hard 5% limit on pre-disclosure accumulations of shares, instead striking a balance between the costs and benefits of disclosure of blockholders’ activities to avoid excessive deterrence of the accumulation of these outside blocks. Thus, in deciding whether to tighten the rules in this area, the Commission should be guided by the general requirement that any costs associated with changes to its rules should be outweighed by benefits for investors. We therefore proceed to provide a framework for the policy analysis that the Commission should conduct. In Section 18.3, we begin by considering the costs of tightening the rules on blockholders. We first explain the benefits of these blockholders for corporate governance. We review the significant empirical evidence indicating that the accumulation and holding of outside blocks makes incumbent directors and managers more accountable, thereby reducing agency costs and managerial slack. Thus, we argue, tightening disclosure requirements can be expected to reduce the returns to blockholders and thereby reduce the incidence and size of outside blocks as well as blockholders’ investments in monitoring and engagement—which, in turn, could well result in increased agency costs and managerial slack. In Section 18.4, we consider the asserted benefits of tightening the rules described in the Petition. We explain that there is no empirical evidence to support the Petition’s contention that tightening these rules is needed to protect investors from the risk that outside blockholders will capture a control premium at shareholders’ expense. Section 18.5 considers whether the proposed tightening is justified by changes in trading practices, legal rules in the United States, or legal rules in other jurisdictions that have occurred since the passage of Section 13(d). We first explain that there is no systematic empirical evidence supporting the suggestion that investors can now acquire large blocks of stock more quickly than they could when Section 13(d) was first enacted. We then show that changes in the legal landscape since that time have tilted the balance of power between incumbents and blockholders against the latter—and therefore counsel against tightening the rules in a way that would further disadvantage blockholders. We also explain why comparative analysis of the regulation of blockholders in other jurisdictions does not justify tightening the rules governing blockholders in the United States. Overall, we argue, law- makers should recognize that the rules governing the balance of power between management and outside blockholders are already tilted in favour of insiders—both in absolute terms and in comparison to other jurisdictions—rather than outside blockholders. We conclude by recommending that the Commission pursue a comprehensive examination of the rules in this area along the lines we put forward. Such an examination should include an investigation of the empirical questions we identify. In the meantime, however, as we explain below, existing research and empirical evidence offer no basis for tightening the disclosure obligations of outside blockholders. Before proceeding, we note that we focus on the timing of disclosure by blockholders and, in particular, the Petition’s assertion that the Commission should shorten the ten-day period in which blockholders must disclose their presence after they have reached 5% ownership. Other questions, such as whether derivatives and similar securities should count toward the 5% threshold, are beyond the scope of this chapter. We do, however, offer a framework for analysing these questions that should be considered in future work on any rules that affect the balance of power between incumbents and blockholders. As we explain below, any analysis of such rules should give adequate weight to the beneficial role played by blockholders described in this chapter.

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  Comparative Labor and Employment Law in Developed Market Economies: Fostering Market Efficiencies or Repairing Market Failures?

  Silvia Bonfanti, Cynthia Estlund, and Nuno Garoupa

  Labor and employment law plays a central role in modern developed economies. In this chapter, we start by reviewing the economic approach to labor markets and their failures and the different theories explaining the role and importance of labor law. We then turn our attention to the legal origins theory by which economists claim to explain differences in labor and employment law across the world. Our critical review of the legal origins theory leads us to a discussion of specific aspects of labor law in common law and in civil law jurisdictions from the perspective of the ‘varieties of capitalism’ approach. We conclude by suggesting that the latter could provide a more solid explanation of distinct labor law approaches than the legal origins theory.

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  Media Mergers

  Arthur Burke, C. Scott Hemphill, Nicholas Levy, Sheldon Mills, Sophie Moonen, and Jonathan Sallet

  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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  Narrative, Inference, and Law in Cultural Context

  Oscar G. Chase

  For almost two decades beginning in the mid-90s, I had the great pleasure and honor of co-teaching with Jerry Bruner a seminar called Culture and Law at the NYU School of Law. Having previously contributed so much to psychology and education, Jerry had become interested in law and all its peculiarities soon after he joined the NYU faculty as a University Professor. Before long he was contributing to our understanding of law’s connection to the minds of those who live in and under it (this led to, among other things, to the influential book, Minding the Law (2000), that he co-wrote with Anthony Amsterdam, another NYU colleague). Among the “other things” that intrigued Jerry was the trilateral relationship of law, psychology and culture. As I had been teaching the Culture and Law seminar for some years, we realized that we had mutual interests (and soon thereafter, mutual affection) so it made perfect sense for us to join intellectual forces in the form of co-teaching. Together with our students and occasional guest scholars, we plumbed those issues. Jerry certainly broadened my understanding of the interior and exterior “worlds” law lives in, and I like to think that his facility with law grew as well. Our joint 2003 conference piece, set out below, will give you a taste of what we were about. But only a taste, because in addition to pursuing our own scholarly writing, for both of us, a principal focus was always on the students. Jerry of course cares enormously about the art of teaching; and few things please him more than a really fine student paper. “Oscar,” he would say, “isn’t [Ms. Or Mrs.’] paper terrific!” I once replied, “Jerry I am so impressed that with all your scholarly projects done and to-be-done, you care so much about student work.” Looking at me quizzically, he made an observation I shall not forget: “Oscar, what the hell are we in this business for if we don’t enjoy good student work!” On a more personal note: Jerry, you are mentor, guide, educator, inspiration, and dear friend.

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  Regulation of Foreign Bribery: The FCPA Enforcement Model

  Kevin E. Davis

  What makes the control of corruption so difficult and contested? Drawing on the insights of political science, economics and law, the expert contributors to this book offer diverse perspectives. One group of chapters explores the nature of corruption in democracies and autocracies, and “reforms” that are mere facades. Other contributions examine corruption in infrastructure, tax collection, cross-border trade, and military procurement. Case studies from various regions—such as China, Peru, South Africa and New York City—anchor the analysis with real-world situations. The book pays particular attention to corruption involving international business and the domestic regulation of foreign bribery.

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  Introduction - The Local-Global Life of Indicators: Law, Power and Resistance

  Kevin E. Davis, Benedict Kingsbury, and Sally Engle Merry

  This book is about the quiet exercise of power through indicators. With the turn to evidence-based governance, reliance on statistical data along with its synthesis into the kinds of scales, ranks, and composite indexes we refer to as indicators has become essential for policy formation and political decision making. The use of indicators in governance has expanded from economic and sector-specific quantitative data to measurement of almost every phenomenon. This book focuses on indicators of governance itself, specifically governance through law: indicators purporting to measure practices or perceptions of good governance, rule of law, corruption, regulatory quality, and related matters. This volume presents nine original case studies that investigate how leading indicators of legal governance produced with global or transnational scope or aims are created, disseminated, and used, and with what effects. The indicators studied include Freedom House's Freedom in the World indicator, the Global Reporting Initiative's structure for measuring and reporting on corporate social responsibility, the World Justice Project's measurement of the rule of law, the Doing Business index of the International Finance Corporation of the World Bank, the World Bank–supported Worldwide Governance Indicators, the World Bank's Country Performance Institutional Assessment (CPIA), the Transparency International Corruption (Perceptions) index, and several indicators (including some of these) used by the U.S. Millennium Challenge Corporation in determining which countries are eligible to receive certain US aid funds. The underlying theoretical framework of this volume is the linkage between knowledge and power. Indicators are both a form of knowledge and a technology for governance. Like other forms of knowledge, indicators influence governance when they form the basis for political decision making, public awareness, and the terms in which problems are conceptualized and solutions imagined. Conversely, the kinds of information embodied in indicators, the forms in which they are produced and disseminated, and how they function as knowledge are all influenced by governance practices.

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  Bringing Wonderment to the Legal Academy

  Peggy C. Davis

  This book celebrates the 100th birthday of Jerome S. Bruner, one of the most relevant scholars in contemporary psychology. It shows how Bruner’s oeuvre and contributions to psychology, education and law are still applicable today and full of unexplored possibilities. The volume brings together contributions from Bruner’s students and colleagues, all of whom use his legacy to explore the future of psychology in in Bruner’s spirit of interpretation. Rather than being a mere celebration, the volume shows a “genuine interest for the emergence of the novelty” and examines the potentialities of Bruner’s work in cultural psychology, discussing such concepts as ambivalence, intersubjectivity, purpose, possibilities, and wonderment. Combining international and interdisciplinary perspectives, this volume tells the tale of Jerome Bruner’s academic life and beyond.

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  Experimentalism and the Limits of Uploading: The EU and the UN Disability Convention

  Gráinne de Búrca

  While the UN Convention on the Rights of Persons with Disabilities (CRPD), which was the first major international human rights treaty to be signed by the EU, has a notably experimentalist character, the participation of the EU does not seem to have been a strong determinant of these elements of the Convention. Instead, the experimentalist character of the CRPD seems to be explained largely by the prominent role played by disabled persons, disability NGOs, and national human rights institutions within the negotiation process. The EU appears to have treated the international negotiations and treaty-making process as a potential channel for ‘uploading’ its own preferred position, and its own disability-discrimination regime. Nevertheless, the EU has, since the coming into force of the CRPD, been quite active in ‘downloading’ this instrument, implementing the Convention and its provisions within EU law and policy.

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  An International Acquis: Integrating Regimes and Restoring Balance

  Graeme B. Dinwoodie and Rochelle C. Dreyfuss

  The TRIPS Agreement is hardly the last word in international intellectual property lawmaking. Bilateral, plurilateral, and regional agreements, along with a multiplicity of training tools, guides, and resource books have followed in its wake. Intellectual property is a high-stakes commodity in the Knowledge Economy. Accordingly, this ferment in norm formation is unlikely to abate. Nations in the North with an interest in commodifying their knowledge-based output will continue to shop for (or create new) institutions that will endorse or develop higher standards of intellectual property protection, while those countries at the opposite end of the development spectrum will not abandon the search for for a more solicitous to user interests, distributive justice, health, and development. We have elsewhere proposed procedural and institutional mechanisms for integrating all of these activities into the TRIPS Agreement, including new approaches to interpretation of the Agreement. However, interpretive approaches can go only so far. They are essentially backward-looking solutions; they do not preclude legal fragmentation and thus can only resolve the problems fragmentation produces. Yet coherence is essential to robust innovation: creativity cannot flourish without a greater degree of certainty than the current regime permits. Of course, absolute certainty is not realistic and, moreover, is less than ideal if national experimentation and cross-border trade are both valued. We believe, however, that it is possible to do better. In this chapter, we suggest that the time has come to crystallize the learning accumulated in the century and a half since the multinational system was born. We tease out and make explicit the elements of what we term an international intellectual property “acquis”—a set of basic principles that form the background norms animating the intellectual property system. The concept of an acquis is relatively new to international law. The World Trade Organization (WTO) borrowed it from European Union (EU) law, where the phrase “acquis communautaire” has in recent years been used to describe the body of existing legal principles and commitments to which new members of the EU must ascribe. In this sense, it is easy to see why it made sense for the Dispute Settlement Body (DSB) to adopt the term; like the EU, the WTO involves a “single undertaking,” and new members must sign up to the entire range of principles that govern the membership. However, the term also has a functional dimension. The Appellate Body referred to the concept of an acquis in Japan—Taxes on Alcoholic Beverages to explain that panel reports should be relevant in adjudicating future disputes because this practice would protect legitimate expectations. And later scholarly treatment of the concept suggests that it reflects efforts not only to protect legitimate expectations, but also to fill gaps, and to create certainty and predictability. Moreover, the US–110(5) panel, which issued the first TRIPS report to refer to an acquis (the Berne acquis), appeared to add another dimension to the concept, regarding the acquis as a body of principles reflected in a treaty regime, even if not always expressed. The concept of an acquis is therefore fluid. We adopt it here as much for its functional characteristics as for its (relatively new) international application. While an acquis is typically associated with a particular instrument or institution, the goals of an acquis are equally relevant to the international intellectual property system as a whole. Recognizing elements as cross-cutting features underlying all instruments constituting the system would facilitate the resolution of international disputes and rectify the problems in decision making that flow from having to take account of the diverse dimensions to intellectual property law. In TRIPS, it would clarify the normative underpinnings of intellectual property law, flesh out the principles and objectives found in Articles 7 and 8 of the TRIPS Agreement, and enable the DSB to situate particular challenges in the broader context of knowledge governance. Moreover, the acquis would complement devices of integration that we have previously discussed as a means of bringing coherence to the international intellectual property system. Prospectively, the acquis would create a legal framework to structure future international lawmaking and thus reduce the incidence of fragmentation. It would furnish a useful guide to international negotiators, especially those who are unfamiliar with intellectual property law and lore. As it develops in response to new challenges, the acquis would harness the expertise of the diverse array of institutions now operating in this arena. By establishing the norms to which all participants in the intellectual property system can be regarded as having subscribed, the acquis would focus debate and reduce the transaction costs of mediating among multiple conflicting initiatives. For developing countries, broad acceptance of the principles in the acquis would provide bargaining leverage, help address the challenges of political economy, and ameliorate the problems of capacity that TRIPS compliance has brought into relief. We draw the content of the acquis from national and international intellectual property law, along with associated jurisprudence and scholarship. An examination of these sources reveals that certain principles have a historical pedigree that elevates them to the status of an agreed norm. The minor exceptions doctrine, which was recognized as part of the Berne acquis in the US–110(5) report, furnishes an example. Other fundamental norms can be gleaned from the frequency with which they appear across a variety of instruments. Some elements derive from the features we see as at the heart of the international intellectual property system: diversity, balance, and historical contingency. Other components emanate from the purposes that first instigated the move to international law, namely, the interdependence of nations in the production of knowledge and trade in knowledge-intensive goods. Experience with TRIPS shows that intellectual property cannot be isolated from broader public policy concerns, such as a commitment to expressive values or access to essential medicines. Thus, in establishing the acquis, we do not confine our examination to purely intellectual property instruments. We begin this chapter with an explanation of why we believe the time to be ripe for articulating these transcendent principles. We next initiate the process of identifying the elements of the acquis, including principles we regard as emerging. We start with those that protect access because many of these are latent in international intellectual property instruments, and one important goal of constructing an acquis is to make them explicit. We then proceed to principles that protect proprietary interests and national autonomy, and reflect the interdependence of nations. We conclude with a discussion of the ways in which the acquis might shape the future progress of the international intellectual property system, including how it might be used to supplement Articles 7 and 8 of TRIPS, and applied and enforced in a variety of settings.

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  Learning Many Things as a Law Clerk to Justice John Marshall Harlan

  Norman Dorsen

  One can best appreciate what it was like to be a law clerk to Justice John Marshall Harlan by recognizing that he was, deep down, a practicing lawyer. He came to the Supreme Court in early 1955 with very little background in constitutional law. His first three years of legal study were at Oxford University, where as a Rhodes Scholar he studied jurisprudence and English common law and obtained the benefits of sustained and critical analysis from dons who were erudite but not conversant with American judicial opinions and trends. He received a “First” in jurisprudence at Oxford, finishing seventh in a class of 120. Harlan's sole year of legal study in the United States, at New York Law School, was part-time because he simultaneously started his long career as a litigator for a leading Wall Street firm, almost entirely in commercial cases. During World War II, he served as chief of the Operational Analysis Section of the Eighth Air Force, which was based in London and comprised of mathematicians, physicists, architects, electricians, and lawyers who provided technical advice on bombing raids over Germany. He spent less than a year as a Second Circuit judge before President Dwight D. Eisenhower appointed him to the Supreme Court. Harlan worked with extraordinary effort and tenacity, but at the start he needed help. In his early years he relied on Justice Felix Frankfurter, with whom he shared an affinity for Oxford and friendships among leaders of the bar who had been Frankfurter's students at Harvard Law School. He also relied heavily on his law clerks-masterfully delegating, supervising, editing, and, above all, forging a product that was distinctively his despite the important contribution of the clerks. By the time Harlan retired in September 1971, he was no longer merely a superlative lawyer; he was a Supreme Court justice with an unparalleled reputation. Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit, who first worked with Harlan as a young lawyer in the 1920s and 1930s, asserted that “there has never been a Justice of the Supreme Court who has so consistently maintained a high quality of performance or, despite differences in views, has enjoyed such nearly uniform respect from his colleagues, the inferior bench, the bar and the academy.” Paul Freund, a leading constitutional scholar during Harlan's time, expressed a similar accolade, writing that even students who disagreed with Harlan's position in a case “freely acknowledge that when he has written a concurring or dissenting opinion they turn to it first, for a full and candid exposition of the case and an intellectually rewarding analysis of the issues.” More than half of Harlan's law clerks were from Harvard Law School, because of his admiration for the school and for Henry Hart, almost surely the leading legal thinker of his era and the Harvard professor who chose Frankfurter's clerks. The rest were from other top-drawer law schools: Columbia, Michigan, Stanford, Virginia, and Yale. Harlan interviewed the finalists—in my case, at his country house in Connecticut—but he relied heavily on the recommendations of those he trusted, perhaps more than on his own reaction to a candidate after a short conversation. New clerks learned the ropes from reading the work product of their predecessors—their memoranda on all certiorari petitions (and the now vestigial notice of appeal) and bench memos on many argued cases. Harlan himself did not spend time, at least in my year, describing the duties of a law clerk to me and my co-clerk, Henry J. Steiner (October term 1957). In Harlan's later years several clerks stayed on for a second term with him, and they explained things to the new clerks. In those days there was no cert pool in which one clerk selected in rotation from the chambers of the justices in the pool wrote a memorandum for all the pool justices. Nor was there the kind of active clerks' “network” that emerged in later years. Naturally, there were many discussions of cases among the clerks, particularly in our private lunchroom, but I do not recall a thriving exchange of serious one-to-one conversations over the year. Harlan never asked me to find out what another justice was thinking about a case from one of his clerks or to advocate a position, but William T. Lake (October term 1969) reports that Harlan occasionally sent him as an emissary (but only to Justice Hugo Black). Harlan's chambers were a quiet place. I don't think I ever heard him raise his voice about anything, and while he was good-humored, there were no fun and games, as in some other chambers (Justice Byron R. White's golf putting, Justice William R Rehnquist's contests of all kinds). If I had to choose one word to describe Harlan, it would be “dignified;” in carriage, style, and dress (black old-fashioned suits, waistcoat complete with his grandfather's pocket watch). The other two descriptive words, often mentioned by law clerks, are “patrician” and “gentleman.”

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  Foreword

  Rochelle C. Dreyfuss

  From both a theoretical and a practical perspective, this book is an important resource. Ever since the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) set out the minimum standards of intellectual property protection for members of the World Trade Organization (WTO), considerable attention has focused on the wisdom of moving towards a system that is more deeply harmonised and that mandates the recognition of even stronger rights. For the most part, the debate centres on questions of technological development. To many, countries that are behind the technology curve gain little from strong protection, even when it is offset by market access for their own products. The products developing countries sell (raw commodities, manufactures) are priced competitively and therefore earn rather scant returns, while the ‘knowledge products’ developing countries must buy (pharmaceuticals, manufacturing equipment, educational materials) are patented, copyrighted and trade marked—and priced well above marginal cost. International obligations to impose high standards of intellectual property protection can therefore cause considerable injustice, for these rights siphon funds from poor countries to rich ones. At the same time, proponents of raising worldwide standards point to the post-TRIPS success of the BRICs (Brazil, Russia, India and China) and suggest that strong protection will benefit other developing countries as well. Intellectual property laws can create powerful inducements to domestic innovators. Furthermore, they promote technology transfer, help establish local creative industries and motivate governments to prioritise activities that move their countries to the intellectual frontier. While this conversation is interesting and important, lost in it is another dimension of the harmonisation issue: market size. Based on the debate set out above, one might think that the interests of all advanced economies would be in alignment, for any country that innovates at world-class levels can reap supra-competitive returns from the global market. This book dispels that notion. Its careful analysis of patent, copyright, trade mark and related law in three economies—New Zealand, Singapore and Israel—demonstrates why small market economies do (or should) develop their own approach to the design of intellectual property laws and institutions.

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  A Cautionary Warning on Healthcare Exchanges: A Plea for Deregulation

  Richard A. Epstein

  This chapter reviews regulation in the health care market under the Affordable Care Act (ACA). It begins with a description of the difficulties inherent in health care insurance markets. A review of the work of Rebitzer, Taylor, and Votruba follows, which is criticized on the whole for overstating the gains from regulation. Specifically, the chapter questions Rebitzer's claims of informational advantages that the insurer has over the insured, that a high turnover rate is evidence of latent market imperfection, that a public agency has the expertise to operate successfully in this market niche, and that the proliferation of consumer health care options poses an impediment to successful market operation. The chapter suggests that restrictions on entry, mandates for minimum essential benefits, privacy regulations, and the inability of private institutions to contract out of the standard-issue terms for medical practice be removed. The chapter then cites the ways in which the ACA deviates from standard insurance principles and concludes that the government's new marketplace metaphor downplays both the massive regulations and the subsidies built in to the ACA exchanges, which negate the benefits that ordinarily derive from organizing voluntary exchanges.

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  Assumption of Risk in a System of Strict Liability: Conceptual Tangles and Social Consequences

  Richard A. Epstein

  The purpose of this volume is to examine the role of defences in determin- ing tort liability. To focus my contribution to this issue, I shall concentrate on one defence—assumption of risk. Preliminarily, it is a mistake to think about assumption of risk, or indeed any affirmative defence in tort law, as though it is a stand-alone enterprise. That approach is likely to get the analysis off on the wrong foot, unless care is taken to place this inquiry into its proper doctrinal context, a task that raises profound procedural issues. In particular, two caveats have to be introduced for any systematic treatment of defences to be tractable. The first deals with the articulation of the prima facie case. The second deals with the use of replications and other subsequent pleas to flesh out a complete system of liability rules. Both topics have been something of a minor obsession throughout my legal career.

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  Foreword - In Praise of the English Year Books: The Modern Relevance of Mediaeval Documents

  Richard A. Epstein

  It is a regrettable fact that the study of early English legal history is now in a general state of decline in American law schools. The modem legal universe is populated with large statutory schemes whose administration is entrusted to a complex network of agencies—one never seems to be enough these days—that deal with a bewildering array of substantive and procedural issues in pursuit of a wide range of substantive ends. In the midst of the massive expansion of the administrative state, too many people hastily conclude that early English legal history is rightly relegated to the back burner-a field to be studied by the resolute and curious few, but not one that should be regarded as an essential component of the toolkit of the modem American lawyer. Taking this view is a serious mistake. It is always worth inquiring into the sources of the political stability and the long-term social and economic success of countries that developed within the common law tradition. Any answer to that question will surely point to a multitude of factors. But one such factor that looms large is the dedication and intelligence of the English judges who disposed of various cases long before the emergence of the modem state. These judges, and the corps of lawyers who appeared before them, performed an extraordinary public service in setting the law on a path from which it has not deviated. Understanding the origins of our legal tradition gives us ample reason to respect the rules and practices it generates. But for most people, it is hard to break into this early body of law. Modern lawyers and laJpeople are often daunted by the inaccessibility of the early sources, often written in either Latin ot law French in ways that add to their air of weary strangeness. If is for just this reason that this masterful compilation and commentary by Professor Thomas Lund offers such a great contribution to the study of the history and evolution of our legal culture. The progenitor in chief of this volume, William Hereford, may not be a household name today, but his not inconsiderable intellect and pointed wit made him a great judge. Bereford served from 1290 until his death in 1326. He was appointed to the bench by Edward I, and elevated to Chief Justice by Edward's son Edward II. His influence on legal developments was enormous. The great challenge some 700 years after he served is how best to work ourselves back :into his life and times. I do not think that there is any easy entree into this world. In my view, the best way to understand this period is to stress the close connection between the early and modem texts.

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  Working Together Transnationally

  Cynthia Estlund

  Globalization poses daunting challenges to workers’ conventional forms of self-organization, some stemming from the mismatch between national governmental and industrial relations institutions and the increasingly transnational organization and mobility of capital, production, services, and labour. One major challenge posed by globalization, and the focus here, is growing transnational diversity within workplaces and within the workforces of transnational enterprises. Even familiar forms of workplace diversity along lines of national origin, race, culture, and religion can be a source of friction, and can complicate the project of building solidarity and institutions of collective voice. Yet the experience of working together across lines of social division—cooperating, commiserating, and socializing over weeks, months, or years—can help to bridge social divisions, foster connectedness, and facilitate self-organization and solidarity among diverse groups of workers. Globalization further complicates the project of self-organization by adding differences of national citizenship and sometimes language, and by adding distance to the challenge of diversity: Co-workers in transnational enterprises are spread across many countries, and must communicate virtually and remotely rather than face-to-face. In the long run, interaction among workers from different countries may help to lay a foundation for new forms of transnational organizing and worker voice (although the long run might be too long given other mounting challenges to self-organization). In the meantime, whatever their instrumental payoff for workers’ organizations, transnational connectedness and solidarity are worth cultivating for their own sake.

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  Instituting Political Change

  John A. Ferejohn

  Modern democracy is normally conducted by elected representatives, chosen in competitive elections (where incumbents have a chance to lose). From the standpoint of the voters, elections are the (thin) connecting line between what voters want or will accept and the policies chosen by their government. But this is so only to the extent that elected officials can actually lose elections and are not able to so exploit the advantages of office as to insulate themselves from voters. From the standpoint of elected officials, elections are a matter of political life and death. To survive and have their policies persist, they have to win or at least win pretty often. Therefore, policies are chosen, in part, because officials think will help them prevail next time. One cannot of course expect governments to be very good at figuring which policies will have this effect. The connection between policies and the outcomes voters care about is complex and obscured by risk and uncertainty and, in many cases, very weak. Moreover, modern democracies are internally complex with separated powers and internal checks, making coordination on policy difficult and sometimes impossible to achieve (despite the invention of the political party). So governments get things wrong fairly often either because they cannot figure out what to do, or, cannot do actually manage to do what they know they should do. And, as a result, as long as elections really are somewhat competitive, sometimes governments lose elections. For all its flaws, the traditional democratic conception is usually defended nowadays in the following way: the policies that work electorally are those that tend to produce good outcomes for voters. And elected officials are thought to be at least somewhat competent at finding such policies and so can be (rationally) expected to pursue them in between elections. So, even if there is a bit of noise (i.e., failed policies, electoral defeats, etc.), and even if the election motive distorts policies a bit toward short run electoral concerns, and even if electoral worries can make it hard for representatives to coordinate their actions, on balance democracy usually tends to produce outcomes acceptable to the electorate.

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  Secrecy Votes and Secret Talk

  John A. Ferejohn

  The promise of democracy is that it may motivate government to serve a wide range of interests—those of all citizens—and it may enlist in that pursuit a wide range of intelligences from all of its citizens. But involving all citizens in collective decision making poses onerous organizational problems that may have no satisfactory solution, especially once the citizenry has become essentially universal. And in fact, modern democracies have generally chosen not to try to engage citizens directly in policy choice, but rather to govern through elected representatives who are in some way responsible to the citizens. For this reason, voting, in elections and in parliament, has become the most important democratic aspect of contemporary democracies. Votes are the way we pick rulers and the way that those rulers impose laws in our name.

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  CISG and the Law Applicable in International Commercial Arbitration: Remarks Focusing on Three Common Hypotheticals

  Franco Ferrari

  It is common knowledge that many contracts that include an agreement to arbitrate will also specify the applicable law to govern the substantive merits of the contract itself. Having negotiated about the appropriate type of forum, the parties are likely to have considered the issue of applicable law as well, in particular where the parties have resorted to recommended arbitration clauses, such as that of the LCIA, which also expressly suggest to insert a choice of law clause into the contract. This is why the hypothetical to be dealt with first relates to a dispute arising from an international sales contract between parties with places of business in different Contracting States to the CISG that does contain a choice of law clause stating "This contract is subject to the laws of the State of New York, United States of America." In this author's opinion, the CISG applies to disputes arising out of such contracts containing a similar choice of law clause, and this irrespective of the view one takes on how arbitral tribunals have to approach the issue of applicability of uniform substantive law conventions, such as the CISG, in general. According to some commentators, the reason for arbitral tribunals having to apply the CISG in cases like the one at hand, where the parties have chosen the law of a Contracting State to the CISG to apply to their contract, is linked to the autonomy granted to the parties by the applicable rules to determine the law applicable to the merits of the dispute, and this irrespective of whether the CISG's applicability requirements stricto sensu (set forth in Articles l(l)(a) and I (l)(b) CISG) are met and of whether the seat of arbitration is located in a Contracting State. Where the applicable rules allow parties to choose the law (or rules of law) applicable to the merits of their dispute, as do most of the arbitration rules as well as most domestic rules regarding international arbitration, certainly those modelled after the UNCITRAL Model Law, and the parties have agreed on the law of a Contracting State to the CISG, the CISG is to apply as part of the law chosen.

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  Bruner at the Bar: Jerome Bruner's Influence on Law and the Legal Academy

  Eleanor M. Fox

  In this section we present three essays and a play written by colleagues of Jerry at New York University School of Law, where Jerry taught from 1991 until he retired as emeritus in 2013. Jerry came to NYU Law School in 1991 as the visiting Meyer Professor. This professorship was reserved for distinguished scholars who were not lawyers and who promised to enrich the study of law. The Law School had in mind that Jerry, as Meyer Professor, would collaborate with Professors Anthony Amsterdam, Peggy Davis and others in constructing the theory of lawyering as an interactive, sympathetic, personal engagement between lawyer and client. Jerry’s year as Meyer Professor was indeed inventive and productive. Jerry helped to construct the Colloquium on the Theory of Legal Practice, which drew upon insights from psychology, anthropology, linguistics, and literary theory. Thereafter, Jerry was appointed Research Professor at NYU Law School and University Professor at New York University. As University Professor he could choose his academic “home,” and he chose the Law School, concerned that the study of psychology had become increasingly descriptive, and being attracted to the law’s normative possibilities. Thus, Jerry’s third academic career, after Harvard and Oxford. Jerry had a great impact on NYU and, in particular, on a coterie of colleagues and students and on pedagogy in areas close to his heart—criminal justice, including death penalty and prisons, poverty, inequality, and culture and its meanings. His work on narrative and his essential contributions to the dilemmas of what is fact, what is intent, what is mind, and what is evil found resonance in the classroom. Moreover, his love of people and his caring for each and every one of his students produced hundreds of law graduates in his thrall. Jerry’s closest law faculty colleagues include the four who have written the essays and play that follow. Jerry co-taught the lawyering theory colloquium with Tony Amsterdam and Peggy Davis. For almost two decades, he co-taught Culture and the Law with Oscar Chase and Vengeance and the Law with Tony Amsterdam. His intellectual companionship with David Garland, one of the world’s leading law, sociology and criminology scholars, spanned the years from the early 1990s after NYU recruited him from the University of Edinburgh.

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  The Rule of Law and the Empirical Study of Rules

  Barry Friedman

  In his widely regarded article, “The Rule of Law as a Law of Rules” (1989), Justice Antonin Scalia argued that it is preferable for judges to adopt rules over standards. Rules can take many forms, but they tend to be clearer, have brighter lines, and be more easily applied than standards, which guide conduct or decide cases based on either vague criteria or an amalgam of factors. Justice Scalia recognized that deciding cases on the basis of rules versus standards can have deleterious effects. Rules, which paint with a broad one-size-fits-many brush, necessarily ignore the specifics of a particular case and thus achieve only rough justice. Bright-line rules are easy to apply, yet by definition they are over- and under-inclusive. So why favor rules? Justice Scalia defended his position with reference to rule of law values: clear rules minimize judicial discretion, increase predictability in the law, allow greater supervision of lower courts by high courts, and at least take a stab at increasing fairness by treating likes alike. While Justice Scalia’s argument is a normative one, there is much here for political scientists. Indeed, one is tempted to suggest that the single most profitable change in research agendas among political scientists would be to largely abandon the sort of inquiry that the editors of this volume, and organizers of a conference that led to it, call “judicial decisionmaking” (JD) in favor of rule of law (ROL) inquiries. The two projects are closely related. At the heart of both is the problem of judicial discretion. Both begin from the position that a certain amount of discretion is inevitable when judges decide cases. But while JD seems obsessed with identifying the specific basis for a judicial decision, and particularly with proving that judges are deciding on the basis of their own “attitudes,” the R OL inquiry seeks in a more fine grained way to understand what motivates various sorts of legal rules and how knowledge about judicial decisionmaking can be utilized to advance rule of law values. This chapter proceeds first by offering a critique of the JD project and identifying why it has a limited capacity to advance our knowledge in any way that has normative (or even positive) bite. It then turns the very elements of that critique of JD into a positive project regarding the rule of law, focusing on the distinction between rules and standards. Finally, it discusses what an R OL agenda might look like for studying clear rules and what that could do for the rule of law generally.

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  Drafting Competition Law for Developing Jurisdictions: Learning from Experience

  Michal S. Gal and Eleanor M. Fox

  How should one draft a competition law for a developing country? Is the project an easy job of mark-up, following the lead of mature jurisdictions? Or is it a complicated and thought-enlisting project that requires knowledge of the terrain, technical expertise, and a talent for synthesizing local market context with global rules and standards? This chapter argues for the latter. Approximately half of all developing jurisdictions have a competition law, and more are considering enacting one. Many enforce their laws, at least to some extent. The laws should be seen in the larger context of competition policy. Competition law and policy reduce anticompetitive barriers and prevent exploitations and abuse. They ease the economic plight of people without power—those who are most vulnerable to inflated prices of necessities of life and to blocked market access. They can help to increase a nation’s economic growth and reduce poverty, and can play a role in distributing gains from trade more widely within society. The colorful quote from Paul Godek misses the point entirely when he says: ‘Exporting antitrust . . . is like giving a silk tie to a starving man. It is superfluous; a starving man has much more immediate needs’. Markets that have at least a minimum level of operating markets and an operating legal system, with competition law to protect them, help fill the starving man’s needs—putting bread on his table and opportunity under his belt. Other social policies work in tandem to address immediate human needs. This chapter assumes the importance of competition and competition law, especially in societies that have persistently supported monopolistic structures and blocked the economic opportunities of the mass of people without power or connections. It explores which legal and institutional designs would best promote effectiveness and efficiency of the competition systems of developing countries at different levels of development. We consider which conditions must exist for a competition law to be successful (in the metaphor above: providing basic nutrition), and we focus on how to design a competition law most likely to take root and flourish in developing countries of particular characteristics. The design of competition law for developing countries presents challenges. One of the most important questions is, as we signalled above, whether developing jurisdictions can appropriately take a competition law (the legislation, the guidelines, the case law) ‘off the shelf’, for instance, the shelves of the European Union, the United States or South Africa, or whether developing countries should devise their own laws, drawing from existing models as appropriate. It has become common cause that, despite many shared goals and principles, no one size fits all. We ask: what is the most effective design of the legal and institutional components of competition laws in developing countries? How should their special characteristics come into play? Even within the universe of developing countries, what differences matter? Most developing countries share several basic characteristics that are explored throughout this book, including scarce human and financial resources, malfunctioning markets, poor infrastructure, systemic poverty, cronyism and corruption. We build on these characteristics to propose a general framework for the design of competition laws in developing jurisdictions. We begin the chapter by addressing the question of why or why not adopt an existing model of competition law. We open with a general analysis of the considerations that may counsel for the adoption of an existing, successful model versus a design to fit the nation’s unique characteristics (section 12.2). We then survey characteristics of developing countries that may inform the design of competition laws (section 12.3). We ask: How should these characteristics inform the design? The analysis first focuses on general implications, such as the level of complexity of the law (section 12.4) and the goals to be furthered by it (section 12.5). We then concentrate on specific areas of competition law, investigating how the special characteristics play out in formulations of law (sections 12.6 to 12.8). To illustrate our suggestions we analyze the experience of selected developing jurisdictions and also examine essential characteristics of three main models (US, South African and EU models). This analysis allows us to expose presumptions about how markets operate and how regulators act. Given our conclusion that the established models do not always fit developing countries’ characteristics, we proceed to conceptualize what would be a good competition law, or a sympathetic range of choices for good competition law, for developing countries of certain characteristics with regard to restrictive agreements, abuse of dominance, and mergers. The chapter closes (section 12.9) with an analysis of some of the ways that external forces can be harnessed to overcome some shortfalls of developing jurisdictions’ competition law.

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  Introduction

  David W. Garland

  This introductory chapter explains the meaning of the term “securitization of society” to which the book’s title refers. “Securitization” is defined as the spread of techniques by a multiplicity of actors and agencies that are aimed at “making the future secure and certain.” It is a spider’s web of prevention, inspection, and policing that has attached itself to the routines of urban life and social interaction and that seeks to direct conduct toward ends that enhance public safety and commercial profit. The book’s analysis stems from the premise that our societies have undergone a shift from a criminal justice system of crime control, monopolized by the state and its uniformed police, to a hybrid system in which multiple actors and agencies have become jointly responsible for delivering security. The old top-down process of state policing, focused on apprehending criminals, has become a more horizontal, collaborative network chiefly concerned with prevention, risk management, and cost control.

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  Penality and the Penal State

  David W. Garland

  A thorny question faced by all civilized societies is what to do when people commit crime, and, in particular, how criminals are to be punished. Yet the nature of punishment, its justifications, aims, and effects has varied markedly throughout history and across—and within—cultures. These matters continue to be vigorously debated and frequently give rise to sharp divisions along lines of morality, politics, faith, and effectiveness. This vital new Routledge collection now brings together the major works on punishment, a central, important, and fascinating area of study, not just for the modern field of criminology but also for lawyers, philosophers, and thinkers in related disciplines. This four-volume ‘mini library’ enables users to consult influential texts, both old and new, and to trace the development of this important area of research and study. Topics covered include: philosophical debates on punishment; sociological theories of punishment; international comparative research; historical perspectives; prisons; rehabilitation; fines; the death penalty; community penalties; restorative justice; the electronic monitoring of offenders; penal populism; punishment and human rights; and recent international developments in punishing and crime-handling. The gathered materials have been carefully selected by the learned editors to offer a definitive overview of punishment, and a newly written introduction places the texts in their historical and thematic context, allowing users not merely to become familiar with penal topics, but also to understand the key questions that have animated scholarly research, both historically and today.

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  Penal Strategies in a Welfare State

  David W. Garland

  A thorny question faced by all civilized societies is what to do when people commit crime, and, in particular, how criminals are to be punished. Yet the nature of punishment, its justifications, aims, and effects has varied markedly throughout history and across—and within—cultures. These matters continue to be vigorously debated and frequently give rise to sharp divisions along lines of morality, politics, faith, and effectiveness. This vital new Routledge collection now brings together the major works on punishment, a central, important, and fascinating area of study, not just for the modern field of criminology but also for lawyers, philosophers, and thinkers in related disciplines. This four-volume ‘mini library’ enables users to consult influential texts, both old and new, and to trace the development of this important area of research and study. Topics covered include: philosophical debates on punishment; sociological theories of punishment; international comparative research; historical perspectives; prisons; rehabilitation; fines; the death penalty; community penalties; restorative justice; the electronic monitoring of offenders; penal populism; punishment and human rights; and recent international developments in punishing and crime-handling. The gathered materials have been carefully selected by the learned editors to offer a definitive overview of punishment, and a newly written introduction places the texts in their historical and thematic context, allowing users not merely to become familiar with penal topics, but also to understand the key questions that have animated scholarly research, both historically and today.