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The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society
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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Two or Three Things I Know About Professor Bruner
David W. Garland
Jerry has been a friend and a colleague for more than 20 years now. Here are a few things I’ve learned about him in that time. I first got to know Jerry in the early 1990s when I was a visiting professor at NYU School of Law. At that point, NYU Law—led by an audaciously ambitious dean named John Sexton—was reinventing itself in all sorts of ways: as a top-5 law school, as a pioneer in global education, and as an interdisciplinary research center that attracted scholars from any and every discipline, so long as they were interesting and their work had some bearing on the life of the law. (I fitted into that last ambition, being a sociologist and criminologist: and perhaps the fact that I came from Scotland made me a little “global” too.) Jerry had been recruited as a distinguished university professor the previous year and although he had a position in the Psychology Department, as one would expect, he was also cross-appointed to the Law School, where he taught a lawyering theory class on “Interpretation” with Tony Amsterdam and Peggy Davis. At some point in that year, a law school colleague suggested that I might like to have lunch with Jerry—a suggestion that was surely a thoughtful way of putting me in touch with a fellow social scientist but also, I now realize, a neat ruse to sell me on the charms and intellectual riches of NYU Law School (Which of course it did: I moved there a few years later and have been there ever since). So Jerry and I emailed and set a date for lunch, arranging to meet in the attractive faculty restaurant atop Bobst library with its bright sunlit views of Washington Square Park and its bustling, senior common room atmosphere. That restaurant has long since disappeared, its sunny spaces taken over by an ever-growing university administration, but the details of that first meeting with Jerry remain bright and fresh in my memory. It’s a little embarrassing to admit now but at that time I knew rather little about Jerry, despite his fame. I knew he was a world-renowned psychologist—the Law School’s publicity materials proudly said as much—and I was dimly aware that he had had a hand in developing modern cognitive psychology. I had also read one or two of his essays in the New York Review of Books—I recalled Jerry’s review of a book by Oliver Sacks and another about the role of culture in the acquisition of language—but beyond that: nothing much. And as for Jerry the man—or the lunch companion—I didn’t have the faintest idea. What if he were stuffy? Or pompous and grand? What if he were to talk about his work and uncover my shameful ignorance of it? What if he were just dull? (My prior experiences with ultra-distinguished academics had not always been encouraging: back in the UK I had once complimented a famous sociologist on the remarkable breadth of his work only to be told “You don’t know the half of it!”) So I decided I should do some background preparation prior to our get-together. And because these were the days before Google, that meant going to the university library, checking the author catalogue, and leafing through Jerry’s books to get some sense of what he had been up to. I don’t clearly remember which of the Bruner publications were there in the stacks on the 4th floor of the university library: I recall seeing On Knowing: Essays for the Left Hand (1966) (a copy of which I subsequently acquired) and The Process of Education (a best-seller published in 1960 and still in print to this day). And Acts of Meaning (1990) had just been published, so perhaps it was there too. But the book that caught my eye, and which I proceeded to read over the next few days with equal parts astonishment and pleasure, was In Search of Mind: Essays in Autobiography (1983). Today, twenty-odd years later, a copy of that book sits on my desk, and if anyone reading this appreciation hasn’t yet had done so, I urge you to get a hold of it immediately. Its combination of personal charm, life-and-works biography, star-studded intellectual history, and sheer narrative pleasure, is simply unbeatable. It has been twenty years since I read that marvelous memoir—commissioned for the Alfred P. Sloan Foundation’s ‘lives in science’ series—but here are some of the plot-elements and anecdotes that have stayed with me ever since. First and foremost, Jerry’s encounters and collaborations with the luminaries of the academic universe: each episode framed by theoretical asides, transfixing I-was-there detail, and a relaxed familiarity with the common rooms and dining tables of the world’s leading universities and research centers. Jean-Paul Sartre, Jean Piaget, Noam Chomsky, Robert Oppenheimer, B.F. Skinner, Isaiah Berlin, Anthony Kenny, Charles Taylor, Iris Murdoch, Talcott Parsons, Gordon Allport, Claude Levi-Straus, Erving Goffman, Roman Jakobson, Ruth Benedict, and Margaret Mead are among the cast of characters that populate the scenes and stories that Jerry recounts. And nor is this merely high-class name-dropping for the sake of entertaining the reader. (Though what would be the harm in that?--Jerry’s name makes as big a splash as any of them.)
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Towards a Social Analysis of Penality
David W. Garland and Peter Young
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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The Legal Industry of Tomorrow Arrived Yesterday: How Lawyers Must Respond
Stephen Gillers
The world is changing, and with it the market for legal services, whether or not lawyers acknowledge the changes let alone address them. Information technology and global trade are disrupting how we've done business in ways and at a pace previously unknown. The scope of change in the next twenty-five years will be greater than in any 50-year period in our history. A response of insularity or denial threatens the profession's core values and impedes the long-professed (but largely unmet) goal of enabling people of modest means to get legal help. The traditional model for regulating lawyers—the “geocentric” model cannot survive. In fact, it has been fading for years. That model, which served us tolerably well until the last quarter of the twentieth century, posits that a lawyer's competence and authority are defined by geography. Lawyers are credentialed in the law of the state that tested and licensed them and where, for much of our history, they mostly did their work. State law defined a lawyer's expertise, and a license defined the radius of permissible practice. But the geocentric model had several incongruities that we managed to overlook and can no longer. Along with this oversight has been the misconception that only traditional law firms can offer legal services for profit. Although formal rules may say so, the reality today is different. Bar groups should lead in addressing the changes we face. We must bring our rules into responsible conformity with market events in a manner that protects the public interest and our core values and begins to fulfill the promise of affordable legal advice. I will suggest a few ways we might do that.
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Legal Supervision of Commercial Opportunism
Clayton P. Gillette
Commercial law ideally seeks to reduce opportunism—conduct that attempts to reallocate risks that were implicitly or explicitly assigned by the contract. But efforts to regulate opportunism confront serious limitations. Legal doctrines aimed at such conduct may reduce one form of opportunism, but simultaneously create risks of alternative forms. Arbiters of commercial disputes who seek to constrain misconduct in a specific case may have difficulty distinguishing between opportunism and behaviour that is consistent with contractually created entitlements to take advantage of changed circumstances. Consequently, reduction of commercial opportunism may perhaps best be achieved by reliance on contractual clauses and reputation. Examination of contracts negotiated in circumstances that expose one party to the risk of hold-up reveals that parties incur significant drafting costs in order to reduce incentives for opportunism. Courts and other arbiters would advance efforts to minimize strategic behaviour by enforcing such clauses, notwithstanding doctrinal limitations on their validity.
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Job, the Mourner
Moshe Halbertal
The Book of Job was understood among philosophers and theologians as a great attempt to grapple with the metaphysical and theological challenges that the fact of evil poses. It was common therefore to interpret the book as an integral part of the discussion concerning the problem of evil and theodicy. Yet there is another, very different stance of addressing the encounter of evil, one not of the theologian or the philosopher; this is the stance of the mourner, which is adopted by the narrative framing of the Book of Job. The different statements of the protagonists in the book, statements that served as the canonical formulations concerning the problem of evil, occur in the particular context of Job’s sitting in mourning while engaging in debate with his friends who presumably have come to comfort him. This particular setting—of the mourner and his comforters—is not mere decorative background to a theological debate. It is a far more serious context, constituting the particular stance in which the problem of evil is experienced and addressed in the Book of Job. In order to understand the full implications of the mourner’s stance it is worthwhile to first outline the traditional theological and philosophical problem of evil and the varieties of responses that come under the heading of theodicy. The traditional project of theodicy will then serve as a contrasting background that will help illuminate what I think is at the center of Job’s stance as a mourner, a stance that might touch deeper dimensions of the human experience of evil, and that helps to articulate what is at stake in the drama unfolding in the Book of Job.
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Imitating Democracy, Feigning Capacity
Stephen Holmes
That Russia's savviest political experts, including the contributors to this volume, still disagree radically about the stability or instability of the Putin regime reinforces their country's reputation as an enigma shrouded in mystery. Some Russia watchers colorfully suggest that the two bulldogs fighting under the carpet, immortalized by Churchill, are the siloviki's Party of Blood, a driving force behind Putin's adventurism in Ukraine, and the oligarchs' Party of Cash, increasingly apprehensive about Putin's poisoned relations with the West. This is no doubt a cartoonish oversimplification, but it also typifies the anxious search to discover some sort of key to an inherently bewildering situation. If the best-informed diagnoses are so uncertain, it is no surprise that politically feasible remedies remain elusive to the point that they are not even seriously discussed. To make matters worse, when Americans and West Europeans come to analyze Russia's rollercoaster trends punctuated by sinister palace intrigue, the country's fabled illegibility acquires a gratuitous layer of inscrutability. This additional obscurity derives in part from the forty-five-year standoff of the Cold War and the compulsion it bequeathed on the Western side to shoehorn all observed conflicts into the democracy–authoritarianism polarity. That such a dichotomy feeds American nostalgia for a moral showdown between the virtuous and the wicked is not its greatest defect, even though it is important to notice the inadequacy of idealizing one side and demonizing the other when studying, say, conflicts between an imperfect Russian government and unscrupulous privatization billionaires or violent Chechen separatists.
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Preliminary Observations on the Treaties in Thucydides’ Work
Robert L. Howse and Noah Lawrence
It would not be easy to find an important dimension of Thucydides’ work that is left un-probed, an important question left unaddressed, by Clifford Orwin in his magisterial Humanity of Thucydides. Perhaps one such area is the place of the treaties in Thucydides’ narrative as a whole. This observation does not take away from Orwin’s subtle and shrewd discussion of treaty violations and blame for the war, as refracted through the speeches of the Corcyreans, Corinthians, Spartans, and Athenians that are presented by Thucydides in Book I. Yet Leo Strauss in The City and Man makes the arresting observation that not only must one give consideration to the treaties in Thucydides’ work as invoked in the speeches, but furthermore, one must consider the treaties to be themselves the equivalent of speeches: “Treaties form a part of Thucydides’ work just as do the speeches of the actors. The treaties differ from the speeches in two ways: they are quoted verbatim whereas the speeches are not, and whereas the speeches are delivered from one side of the conflict, the treaties represent an agreement among the conflicting parties. The treaties represent an agreement among the conflicting parties. The treaties may thus be said to reflect on the political plane Thucydides’ own impartial speech.” Following Strauss as well as taking his suggestion a step further, in this chapter we survey Thucydides’ own speeches about the treaties in addition to his presentation of their provisions verbatim in certain cases. Tracing and analyzing these aspects of Thucydides’ work closely may shed new light, we conjecture, on the great theme in Thucydides of the relation of right and necessity, so splendidly stated by Orwin in his analysis of the speech of the Athenians at Sparta in Book I. While an exhaustive treatment of the subject would be an endeavor extending far beyond a brief chapter, we emphasize two core themes. The first concerns, as mentioned above, the relationship between right and power. Contrary to the presumptions or prejudices of some contemporary scholars of international law, our premise, like that of Strauss and of Jacqueline de Romilly in her study of law in ancient Greece, is that in Hellas treaties were understood both in theory and in practice as authentic obligations of right, not “gentlemen’s agreements” or mere arrangements of comity or convenience. The problem for right in Thucydides’ universe is not that it does not exist, but that it is vulnerable to the compulsions that bear upon cities, to power politics, as well as dependent on a certain level of trust, which can easily be broken in times of conflict but which is not easy to rebuild, as we will go on to explain. Yet Thucydides’ account of the vulnerability or fragility of right must be carefully distinguished from reductionist positions that right is mere pretext or justifying ideology, or that “might makes right.” Right is real—the treaties have a normative existence that cannot be expunged by the power political plane. But their force in practice is vulnerable to power politics. By indicating that the 30 years’ treaty held for fourteen years, Thucydides indicates that this vulnerability is, however, limited; under favorable conditions treaties can indeed have a practical, not just a normative, existence. In sum, right is something real in human moral, legal, and political life—some people live up to it, some struggle to live up to it, some fight to stymie or destroy it, and the overall result reflects the sum of all these efforts. Second, Thucydides’ narrative lays bare the dark truth of how much easier it is, in terms of time and effort, for power interests to eviscerate the effectiveness of right than it is to rebuild the latter once damaged. This truth is based on the even more fundamental truth that the bases of right—binding enforcement, and good faith and trust—are easily damaged by the moral, psychological, and strategic realities of war. For Thucydides, history is, among other things, a series of contests between right and power, and not one where each contest starts from scratch: rather, one in which prior contests’ outcomes have consequences for the next, and it is far easier for actors to get these outcomes trending toward power interests than it is to subsequently get them trending back toward right. Thus, treaties play the crucial function in Thucydides’ universe of conveying the teaching that is the sum of the two core ideas described above—a teaching whose enduring significance makes clear that Thucydides’ universe is the human condition.
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Due Process in Law
Samuel Issacharoff
This article assesses the history of the concept of due process in Anglo-American jurisprudence. While the actual phrase ‘due process of law’ first appeared in the Magna Carta, the concept of due process was transformed when the American colonists adopted it as a limiting principle not only on the use of executive power but also on the scope of the laws that could be passed. Due process protects substantive rights by requiring procedural regularity in the exercise of governmental power and insists that procedural regularity may not be altered by the normal operations of political power. In the twentieth century, due process law in the United States developed in three central phases—substantive, procedural, and functional due process—and these trends continue into the twenty-first century.
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Drones and the Dilemma of Modern Warfare
Samuel Issacharoff and Richard H. Pildes
The morality and legitimacy of the practices of war—or, at least, the use of military force—are undergoing a fundamental transformation. This transformation is not yet directly or fully reflected in the formal laws of war, but as these changes embed themselves in the practices of states, especially dominant states, in practice they might eventually come to be embodied in the legal frameworks that regulate the use of force. The fundamental transformation is this: Whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status—a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army—we are now moving toward a world that implicitly or explicitly requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter. This shift applies not to any one particular type of military force, such as lethal force, but to all exertions of military power over enemies, including the ways in which they are captured, detained, incapacitated, or tried. To a limited but significant extent thus far, this transformation is reflected in the domestic law of some countries. Some of these issues have been addressed, for example, in evolving US constitutional jurisprudence resulting from recent decisions of the United States Supreme Court, as well in interpretations of international law by different domestic courts, including the Israeli Supreme Court. However, this quiet, subtle, and inadequately appreciated transformation has been taking place far more as a matter of slowly accepted practices than as settled legal development. The process of legal transformation in turn shapes arguments about the proper uses of military force in the context of fighting terrorism, yielding a debate that often comes across as polarized or confused or simply unable to engage with diverse positions, however reasonable. Precisely because we are in the midst of this transformation, we do not have clear prior legal frameworks, either domestically or internationally, to draw on to provide determinate legal guidance for addressing the transformed and transforming nature of modern warfare.
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Hedge Funds in Corporate Governance and Corporate Control
Marcel Kahan and Edward B. Rock
Hedge funds have become critical players in both corporate governance and corporate control. Recently, hedge funds have pressured McDonald’s to spin off major assets in an IPO; asked Time Warner to change its business strategy; threatened or commenced proxy contests at H. J. Heinz, Massey Energy, KT&G, InfoUSA, Sitel, and GenCorp; made a bid to acquire Houston Exploration; pushed for a merger between Euronext and Deutsche Börse (DB); pushed for ‘changes in management and strategy’ at Nabi Biopharmaceuticals; opposed acquisitions by Novartis of the remaining 58% stake in Chiron, by Sears Holdings of the 46% minority interest in Sears Canada, by Micron of Lexar Media, and by a group of private equity firms of VNU; threatened litigation against Delphi; and pushed for litigation against Calpine that led to the ousting of its top two executives. Even though most hedge funds are not activist, the ones that are have captured attention. Martin Lipton, the renowned advisor to corporate boards and veteran of the takeover wars of the 1980s, lists ‘attacks by activist hedge funds’ as the number one key issue for directors. The Wall Street Journal, the newspaper of record for executives, bankers, and investment professionals, calls hedge funds the ‘new leader’ on the ‘list of bogeymen haunting the corporate boardroom’. The Economist has run a special report on shareholder democracy focusing on activism by hedge funds, and several European governments are considering regulations designed to curb hedge fund activism. What should we make of this spate of shareholder activism by hedge funds? Are hedge funds the ‘Holy Grail’ of corporate governance—the long sought-after shareholder champion with the incentives and expertise to protect shareholder interests in publicly held firms? Or do they represent darker forces, in search of quick profit opportunities at the expense of other shareholders and the long-term health of the economy? In this chapter, we analyse and evaluate the implications of the rise of hedge funds for corporate governance and corporate control. In Section 5.2, we examine and categorize a variety of presumptively ‘happy stories’—that is, examples of different kinds of activism where hedge funds have no apparent conflict of interest. We argue that this hedge fund activism differs, quantitatively and qualitatively, from the more moderate forms of activism that traditional institutional investors engage in. In Section 5.3, we analyse why hedge funds are so much more active than other institutional investors. We show that hedge funds have better incentives, are subject to fewer regulatory impediments, and face fewer conflicts of interest than traditional institutions, such as mutual funds and pension funds, which have never lived up to the hopes of their partisans. But the activism of hedge funds may also be due to the fact that many follow a different business strategy than traditional institutions. This strategy involves taking high stakes in portfolio companies in order to become activist, rather than diversifying and becoming involved (if at all) only ex post when companies are underperforming, thus blurring the lines between betting on and determining the outcome of contests. In Section 5.4, we turn to potential problems generated by hedge fund activism. We first examine the ‘dark side’ of activism—instances where the interests of activist hedge funds conflict with those of their fellow shareholders—to see whether regulatory intervention is warranted. We then discuss other problems that arise from the stress that hedge funds put on the governance system. In Section 5.5, we turn to the most severe attack levelled against hedge funds: that hedge fund activism increases the pressure for short-term results over more valuable long-term benefits. We accept that short-termism by hedge funds can aggravate short-termism in the executive suite. But we nevertheless conclude that, at this point, no regulatory intervention is warranted because: it is unclear to what extent hedge fund activism is driven by excessive short-termism; hedge funds usually need the support of other, less short-term oriented constituents to affect corporate policy; and, to the extent short-termism generates a problem, adaptive devices adopted by corporations are a better way to address it than regulation.23 Section 5.6 concludes.
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The Limits of Punishment
Emma Kaufman and Sam Weiss
Structures of punishment are infused with anxiety about national belonging. Since the mid-1990s, governments in the United States, Australia, and much of Western Europe have embraced the practice of immigration detention, building quasi-prisons for non-citizens at a breakneck pace. Criminal justice systems have also warped under the pressure of border control. In the past five years alone, both the United States and the United Kingdom have established special prisons to hold foreign nationals serving criminal sentences. In Britain, non-citizens convicted of criminal offenses are transferred to prisons ‘embedded’ with border agents. In the US, more than half of last year’s roughly 400,000 deportations started when a border agent entered a prison or a jail. These practices unfold at the edges of punishment. In the formal language of the law, many carceral activities are classified as regulation rather than punishment. Holding a detainee in a freezing jail cell, transferring a long-term resident to a prison 3,000 miles from home, denying non-citizens access to rehabilitative programs: none of these practices is punishment in technical, legal terms. Every day, on both sides of the Atlantic, some of the most pernicious and punitive aspects of late modern incarceration take place beyond punishment, in the gray zone of the civil sanction. This chapter explores the line between punishment and regulation. Drawing on fieldwork in Britain and the United States, we critique the growing gap between lived and legal notions of punishment. The chapter focuses in particular on non-citizens convicted of criminal offenses, a group whose experiences bring the punitive aspects of regulation to life. Building from prisoners’ testimonies, we assert that incarceration—whether in a detention center, a prison, or any facility in between—is punishment for the people subject to it. In making this claim, the chapter wades into an ongoing conversation about the proper scope of punishment. In recent years, legal scholars and criminologists have debated the merits of a narrow definition of punishment. Some argue that cabined legal definitions ensure procedural protections. Others contend that legal terms ought to expand to reflect lived experience. This chapter joins that debate, and aims to advance it, by asking how the law comes to define carceral practices in ways that disguise their punitive force. Turning to landmark legal cases, we argue that the limits of punishment enable increasingly harsh carceral regimes. This argument proceeds in three parts. Part I maps the boundary between civil and criminal sanctions. Part II draws on ethnographic fieldwork to contend that prolonged incarceration is punitive, no matter how courts define it. This second part of the chapter presents prisoners’ testimonies about incarceration, and specifically, how confinement becomes a mode of punishment for having the ‘wrong kind’ of identity. Part III returns to the law to examine cases in which lived experience creeps into the formal definition of punishment. Paying close attention to the text of legal opinions, we conclude that the law, while often a limiting force, can also create space for a more empathetic conception of punishment. Before advancing that claim, a methodological caveat is in order. This chapter draws on work by authors trained in different disciplines, namely sociology and law. It contains, on one hand, testimonies from a yearlong ethnographic study of British prisons, and on the other, observations from several concentrated months of work in a clinic based in an American law school. These are two quite distinct contexts of punishment; they clash at times, and each comes with its own academic mores. Ethnography permits more first-hand narrative, but lives at a distance from the law. The law shapes the possibilities of punishment, but the dictates of client confidentiality affect how personal and rich legal storytelling can be. Ultimately, this chapter displays the norms of our respective disciplines as much as the boundaries of punishment. In this respect, it encourages scholars and critics of incarceration to consider how interdisciplinary thinking might make punishment less extreme.
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Incentives, Compensation, and Irreparable Harm
Lewis A. Kornhauser
Many individual, organisational, and corporate activities impose a risk of harm on individuals, their property, or the environment generally. Society regulates these risks in a variety of ways. This chapter focuses on the use of ex post liability rules that impose liability on one or more actors deemed ‘responsible’ for the harm. In domestic legal systems, ex post liability rules typically regulate the basic relations between private individuals; intentional torts, accidents between strangers, and most contractual relations are governed by ex post liability rules. Ex post regulation of harm might play an equally significant role in international legal contexts as, in many international law contexts, institutions for the creation and implementation of ex ante regulatory instruments are scarce and underdeveloped. I shall distinguish three aspects of the assignment of responsibility. First, the law determines what I shall call causal responsibility; it identifies which actor or actors created the risk. Second, the law assigns what I shall call legal responsibility for the harm; it identifies those actors who must ‘remedy’ the harm. Finally, the law determines financial responsibility for whatever remedy the law provides. These three forms of responsibility are related in complex ways. First, the complexity arises in part from the tension between two distinct motivations for a liability regime. On the one hand, the law, through the liability regime, may seek to mitigate the risks that led to the harm. This aim is forward looking; society wants agents to take actions that reduce the risks and hence, on average, the realised harms from these risks. I shall sometimes call this aim, deterrence and sometimes the incentive aim. On the other hand, a liability regime seeks to compensate the ‘victim’ of the harm. This aim is backward looking. A liability regime accomplishes this compensation by ‘shifting’ the realised harm from the ‘victim’ to one or more legally responsible agents. I shall call this aim compensation. Society has other means, both legal and non-legal, for achieving the twin aims of compensation and deterrence. Ex ante regulation through licensing, taxing of inputs, command and control regulations, product standards, and markets in tradable permits, to name a few, are ex ante tools that regulate or deter actions that impose risks. In most instances, these regulatory techniques complement rather than replace regulation through ex post liability rules, though, as noted, they typically require a strong institutional basis for their successful creation and implementation. The law also may shift the burdens created by the realised harm. More precisely, society may spread the risk through insurance or other mechanisms. Insurance requires the bearer of financial responsibility to have made a prior premium payment in exchange for the right to indemnifi- cation from the insurer for the loss. Other mechanisms typically spread losses among taxpayers by providing ‘social insurance’ to the individual financially responsible. A second source of complexity in the relation among the three types of responsibility arises from the nature of the harms that risky activities cause. Much of the legal literature treats harms in an undifferentiated way and understands the aim of compensation as one of ‘making the victim whole’. This approach only makes sense for certain types of harms, specifically monetary losses (or losses of property) and certain types of what I shall call ‘transient personal injury’. In these instances, the victim can in fact be made whole, at least in the economist’s sense of delivering a bundle of goods that makes the victim, from her own perspective, as well off after suffering the harm as she would have been had the harm not occurred. Harms for which an agent can be made whole I shall call ‘monetary harms’ or ‘financial harms’. Not all harms however are financial harms. Some harm is irreparable. Irreparable harms cannot be shifted or spread. The victim alone bears them; as a consequence, I shall argue, deterrence should play the dominant role in the assignment of legal responsibility and the determination of the extent of financial responsibility.
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Discrimination and the Law
Deborah C. Malamud
This article focuses on the development of antidiscrimination law in the United States at the federal level. It is concerned primarily with employment law and discriminatory practices involving race and gender. Other areas of US law are also considered (e.g., school desegregation) before briefly surveying international developments. The role of social science in antidiscrimination legal practice is stressed.
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Confederacy
Geoffrey P. Miller
Confederacy, as used in political theory, denotes an association of political units joined for specific purposes but otherwise retaining rights of sovereignty. Confederacy is more centralized than military alliances or free-trade agreements but weaker than federal systems such as the United States of America or the Federal Republic of Germany.
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Property
Geoffrey P. Miller
Property is the institution through which a society assigns rights in resources. One function of social organizations—and in particular of governments—is to administer these rights: to define the right in question, assign it to a holder or holders of title, and enforce the right against others. These functions were just as important in ancient times as they are today. It is not surprising, therefore, that biblical texts deal extensively with issues of property.
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Risk Management and Compliance in Banks: The United States and Europe
Geoffrey P. Miller
Europe is engaged in an experiment unprecedented in world history: can independent nations—even if linked by significant legal, economic, and social ties—merge their financial systems into a true banking union? Policy-makers in Europe are working diligently to achieve that goal. Spurred by the financial turmoil of 2007-9 and its aftermath, Europe has created a network of powerful regulatory institutions including the Single Supervisory Mechanism (SSM), the European Systemic Risk Board (ESRB), and the European Banking Authority (EBA), the Single Resolution Mechanism, and the European Stability Mechanism. Acting individually and in concert, these bodies are working to enhance the integration of financial markets in the euro area. Important as these institutions are, they are not the only factors at work in what appears to be an irreversible trend towards harmonization. More general trends are at work—changes in best practices in the management of banking institutions. These changed are even more international in scope than the move towards European banking integration. The growth of risk management and compliance is occurring on both sides of the Atlantic—in the United States as well as Europe, in South as well as North America, in parts of Asia, and elsewhere. The trend is not only broad; it is also characterized by an astonishing degree of convergence. Arguably the treatment of risk and compliance at banking firms is one of the most successful international frameworks for regulation—even though the applicable rules are not embodied in any single statute, code, or regulatory action. This chapter identifies key aspects of this enhanced focus on risk and compliance, a focus which is central to European integration. The chapter argues that financial institution regulation is experiencing a risk revolution and identifies some of the important drivers of that development. In particular, the chapter discusses the widespread acceptance of enterprise risk management; dramatic enhancements to the roles and responsibilities of internal and external auditors; the emergence and empowerment of the office of Chief Compliance Officer; and the growth of risk-based approaches to examination and supervision. The chapter conclude by offering some thoughts for why systems both in Europe and elsewhere seem to be converging on risk management and compliance as keys to best practices in financial institution governance.
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Taxation
Geoffrey P. Miller
Given the range of biblical references, contested issues of sources and dating, and limited information about legal institutions and social practices, conclusions about taxation in the Bible must be drawn with caution. The available information, however, suggests that taxation was an important aspect of public administration during biblical times.
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The Rise of Risk Management
Geoffrey P. Miller
On July 17, 2015, Prof. Dr. Peter Nobel celebrated his 70th birthday. On this occasion, a number of his friends and companions came together to warmly congratulate him with their essays. The result is a Liber Amicorum with 32 contributions. The 6 thematic blocks reflect the focus and the special understanding of the St. Gallen approach to 'Law & Economics', as Peter Nobel played a key role in shaping it: namely both as an interlocking of theories and methods from both disciplines and as a practice-oriented holistic view of regulatory and design questions for markets and companies.
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Focus on Political Fragmentation, Not Polarization: Re-Empower Party Leadership
Richard H. Pildes
Political polarization, from my point of view, is a concern primarily insofar as it affects the capacity for governance—others might be troubled with a political culture characterized by divisiveness, lack of civil disagreement, and the like, but my concern is effective governance. Indeed, polarization might well involve tragic conflicts between the domains of voting and governance; as responsible party government advocates have long argued, coherent and sharply differentiated political parties appear to increase turnout, make the most salient cue in voting—the political party label—that much more meaningful, and through that cue enable voters to hold officeholders more meaningfully accountable. Thus, party polarization has electoral benefits; it is not a matter of all cost and no advantage. As a result, we should view partisan polarization as a significant problem only if and when its costs are substantial enough to outweigh these other benefits. To the extent partisan polarization contributes significantly to political paralysis and governmental dysfunction, then polarization shifts to becoming a major problem for American democracy. But if the concern about polarization is best understood as one about effective governance, the angle into this problem that is worth focusing on now and in coming years needs to be redefined. My argument is that we should identify the issue not as political polarization but as one of political fragmentation. By fragmentation, I mean the external diffusion of political power away from the political parties as a whole and the internal diffusion of power away from the party leadership to individual party members and officeholders. Until recently, much of the commentary on polarization has focused on the difficulty of fitting America’s increasingly parliamentary-like political parties into the Constitution’s institutional architecture of a separated-powers system. In times of divided government (but not only then, given the Senate filibuster rule, which remains in place on policy matters), will the absence of a “majority government” make it too difficult to generate the kind of concerted political action required for legislation? But beneath the surface fact of party polarization lies a more specific set of questions essential to getting at the capacity for effective governance. The issue is not polarization per se: it is where the sources of compromise and negotiation, deal making, pragmatism, and the like are going to come from. Polarization and divided government make those capacities and attitudes more necessary and, of course, more difficult. But polarized parties and their leaders can still forge compromises in crucial areas, at least those in which the need for action is generally viewed as compelling even if the specifics are contested (budgets, debt ceiling increases). That is, party polarization does not by itself necessarily make impossible the kind of compromises that enable government to function effectively, particularly in areas in which there is broad consensus that government must actually take action (again, passing budgets and meeting existing financial obligations are the paradigmatic examples). My claim is that political fragmentation of the parties (most obviously visible, at the moment, on the Republican side, but latent on the Democratic side as well) is more important than polarization in accounting for why the dynamics of partisan competition increasingly paralyze American government. Were the recent government shutdown and the dancing on the knife’s edge of a government default simply a product of the extreme polarization of the political parties—or of the inability of party leaders to bring recalcitrant minority factions of their parties and individual members along to make the deals that party leaders believed necessary? Ironically, stronger parties—or parties stronger in certain dimensions—might be the most effective vehicle for enabling the compromises and deals necessary to overcoming the partisan divide. The problem is not that we have parliamentary-like parties—it might well be that our political parties are not parliamentary-like enough. In particular, structural changes in the practices and rules of democracy have caused the party leadership to lose the capacity to control and discipline factions within the party and individual members. Political scientists have long distinguished three domains in which political parties function: the party as an ongoing organizational entity, the party in the electorate (the party’s voters), and the party of elected officials in their capacity as part of the government. To put my point most extremely, the “party-in-government” has been severely undermined in recent decades. As in any setting, organizations require a certain unity—embodied in effective leadership—to negotiate, make credible commitments, and forge deals with other organizations. It is this capacity that “the parties in government” have lost. We tend too often to focus on individual political personalities as the explanation for the failure (or success) of government. Yet in government today, the problem is not that individual leaders are much “weaker” personalities than in the past. It is that the overall structural system, particularly communications and election financing, have disarmed party leaders of the tools they had in the past to ensure and enforce party discipline and unity. These structural changes make party leaders less able to exert the kind of control and force that they were able to in certain earlier eras. In this chapter I offer one policy proposal designed to re-empower party leadership over other party members within the government: elections that are publicly financed through money that flows primarily to the political parties, rather than to individual candidates or officeholders. I offer this as one point of entry into the larger issue of how to reinvigorate party leaders’ capacity to exert leadership on behalf of the parties and to ensure and enforce party cohesion in the midst of contentious and difficult legislative choices. This proposal is less important in itself than as an illustration of the kind of directions we should be focusing on to enable more effective governance in the midst of highly polarized political parties.
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How to Fix Our Polarized Politics? Strengthen Political Parties
Richard H. Pildes
The dramatic polarization of our political parties is here to stay. It is primarily a product of long-term historical and structural forces that were set into motion in the 1960s when African-Americans (and many previously excluded poor whites) began the process of becoming full political participants. That process began with the 1965 Voting Rights Act, but took decades to culminate, as it more or less now has. Thus, specific efforts to diminish polarization by one, or several, discrete changes in our electoral institutions (the design of election districts, for example) are not likely to make a significant dent (see Chapters 1 and 10). If we therefore accept polarization as a fact—as we should—our attention instead might better be centered on how to manage polarization’s consequences to promote more effective governance. My suggestion is that, if we are looking for solutions, we should re-define the problem of effective governance in our era as one of political fragmentation rather than one of political polarization. By fragmentation, I mean the external diffusion of political power away from the political parties as a whole and the internal diffusion of power away from the party leadership to individual party members and officeholders. It is political fragmentation that makes it that much more difficult, in a political world that rests on polarized parties, for party leaders nonetheless to engage in the kinds of negotiations, compromises, and pragmatic deal-making that enable government to function effectively, at least in areas of broad consensus that government must act in some way (budgets, debt-ceiling increases). And because of political fragmentation, party leaders in all our political institutions have less capacity to play this kind of leadership role than in many previous eras. When political fragmentation that makes it that much harder for party leaders to command their parties is added to highly polarized parties, the mix is highly toxic to the capacity of our political institutions to function effectively.
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Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy
Kal Raustiala and Christopher J. Sprigman
This chapter examines the following questions: How did China become the world's leader in luxury goods sales—a category that relies heavily on intellectual property (IP) rights for its market value—while at the same time achieving unchallenged global dominance in “IP theft”? How can authentic luxury products, with their often-stratospheric prices, have such astonishing market success in China when knockoff versions are so easily produced and so widely available? It begins by describing China's approach to IP and its thriving luxury goods market. It then examines China's equally robust knockoff economy, and explores how copying and counterfeiting occur in China. Finally, it speculates on how to reconcile the success of both legitimate branded luxury goods and counterfeits in China. The chapter argues that much of the harm assumed to flow from counterfeits is difficult to demonstrate empirically in the luxury goods sector, and there are good theoretical reasons to doubt its magnitude. Indeed, the conventional wisdom about the harm caused by counterfeits is more a matter of inference than evidence. And there is some evidence, including evidence from China itself, that counterfeits can strengthen brands as well as undercut them.
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Patriarchy
David A. J. Richards
Patriarchy marks the hierarchical authority of priest-fathers over other men and boys and all women and girls. It is a mistake to think of patriarchy as an exclusively contemporary term of criticism arising from and within feminism. John Locke, the father of liberal constitutionalism, begins the great argument of the Second Treatise only after he has refuted in the First Treatise Robert Filmer's patriarchal defense of absolute monarchy, based on a divine right theory that Filmer traces lineally to Adam, the first patriarch. It is Locke's criticism of the unreasonableness of Filmer's version of theologically rooted patriarchal absolutism that is foundational to modern liberal political theory. This theory arises from an ideal of political ethics, treating persons as equal bearers of basic human rights, that condemns political absolutism and calls for some form of constitutional democracy that both better respects basic human rights (like the right to conscience and speech) and renders politics democratically accountable through regular elections. It is a tribute to the power and influence of Locke's argument for liberal democracy in the Second Treatise that almost no one, except a few feminists, even reads let alone remembers the First Treatise. But the few feminists, like Carole Pateman, who have taken the First Treatise seriously may be on to something, namely that Locke's version of egalitarian contractualism does not take seriously the degree to which, for example, patriarchal marriage, based on the alleged naturalness of gender hierarchy, violates his moral egalitarianism (women are not treated as equals).
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Constitutions in Action: The Impact of Judicial Activism on Socioeconomic Rights in Latin America
César Rodríguez-Garavito
Over the past two decades, legal thought and practice in Latin America have changed dramatically: new constitutions or constitutional reforms have consolidated democratic rule, fundamental innovations have been introduced in state institutions, social movements have turned to law to advance their causes, and processes of globalization have had profound effects on legal norms and practices. Law and Society in Latin America: A New Map offers the first systematic assessment by leading Latin American socio-legal scholars of the momentous transformations in the region. Through an interdisciplinary and comparative lens, contributors analyze the central advances and dilemmas of contemporary Latin American law. Among them are pioneering jurisprudence and legal mobilization for the fulfillment of socioeconomic rights in a highly unequal region, the rise of multicultural constitutionalism and legal struggles around identity politics, the globalization of legal education and practice, tensions between developmental policies and environmental justice, and the emergence of a regional human rights system. These and other processes have not only radically altered the institutional landscape of the region, but also produced academic and practical innovations that are of global interest and defy conventional accounts of Latin American law inherited from law-and-development studies. Painting a portrait of the new Latin American legal thought for an international audience, Law and Society in Latin America: A New Map will be of particular interest to students of comparative law, legal mobilization, and Latin American politics.
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Remapping Law and Society in Latin America: Visions and Topics For a New Legal Cartography
César Rodríguez-Garavito
Over the past two decades, legal thought and practice in Latin America have changed dramatically: new constitutions or constitutional reforms have consolidated democratic rule, fundamental innovations have been introduced in state institutions, social movements have turned to law to advance their causes, and processes of globalization have had profound effects on legal norms and practices. Law and Society in Latin America: A New Map offers the first systematic assessment by leading Latin American socio-legal scholars of the momentous transformations in the region. Through an interdisciplinary and comparative lens, contributors analyze the central advances and dilemmas of contemporary Latin American law. Among them are pioneering jurisprudence and legal mobilization for the fulfillment of socioeconomic rights in a highly unequal region, the rise of multicultural constitutionalism and legal struggles around identity politics, the globalization of legal education and practice, tensions between developmental policies and environmental justice, and the emergence of a regional human rights system. These and other processes have not only radically altered the institutional landscape of the region, but also produced academic and practical innovations that are of global interest and defy conventional accounts of Latin American law inherited from law-and-development studies. Painting a portrait of the new Latin American legal thought for an international audience, Law and Society in Latin America: A New Map will be of particular interest to students of comparative law, legal mobilization, and Latin American politics.
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