Faculty Chapters

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  Antitrust Policy: Lessons from the US

  Daniel L. Rubinfeld

  Whether applied through US, European, or other national competition laws, antitrust has come to represent an important competition policy instrument that underlies many countries' public policies toward business. As a set of instruments whose goal is to make markets operate more competitively, however, antitrust often comes into direct conflict with regulatory policies, including forms of price and output controls, antidumping laws, access limitations, and protectionist industrial policies. Courts in the US have widely adopted economic analysis as the theoretical foundation for evaluating antitrust concerns. Yet, antitrust statutes in the European Union also place heavy emphasis on the role of economics. This article provides a view of antitrust primarily from the perspective of the US policy; the review that follows illustrates a theme that has worldwide applicability. This article highlights: (1) the early antibig business period in the US, in which the structure of industry was paramount; (2) the period in which performance as well as structure was given significant weight, and there was a systematic attempt to balance the efficiency gains from concentration with the inefficiencies associated with possible anticompetitive behavior; and (3) the most recent period, which includes the growth of high technology and network industries, in which firm behavior has been given particular emphasis.

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  Antitrust Settlements

  Daniel L. Rubinfeld

  Antitrust litigation has been experiencing a growth spurt in the past several decades as the result of expanding public enforcement worldwide, active private enforcement in the United States, and initial forays into private enforcement in other areas of the world. Given the large costs to the parties flowing from antitrust trials, it is not surprising that a vast majority of both private and public enforcement actions are resolved through settlement. This essay sketches out the conceptual framework underlying the settlement-trial decision. It also describes some of the empirical evidence on the settlement of both public and private antitrust cases and in the process offers commentary on a number of important policy issues.

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  “Clues” for Determining Whether Business and Service Innovations Are Unpatentable Abstract Ideas

  Pamela Samuelson and Jason M. Schultz

  In June 2010, the U.S. Supreme Court ruled in Bilski v. Kappos that Bernard Bilski’s method for hedging risks of price fluctuations for commodities was an abstract idea that was ineligible for patent protection. Four of the Justices would have gone further to hold that business methods were unpatentable subject matter; that is, not the kind of “process” for which patent protection was available. Although the Court as a whole was not persuaded that business methods should be deemed categorically ineligible for patent protection, in part because the term “business method” is difficult to define with precision, Justice Kennedy, writing the opinion of the Court for himself and three other Justices, recognized that “some business method patents raise special problems in terms of vagueness and suspect validity.” After Bilski, these methods are likely to be deemed too abstract to be patentable. Justice Kennedy went on to say that it was important to set a high bar for patentability of these kinds of inventions, because otherwise “patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.” To avoid this chilling effect on business innovation, a limiting principle was needed so that the U.S. Patent and Trademark Office (PTO) and the courts could determine which kinds of methods affecting business operations should be eligible (or not) for patent protection. Justice Kennedy pointed to the Court’s prior rulings on the unpatentability of abstract ideas as likely to provide useful guidance for achieving this purpose. Drawing on these precedents, the Court of Appeals for the Federal Circuit might, he thought, be able to “defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted, and then rule that the category is unpatentable because, for instance, it represents an attempt to patent abstract ideas,” adding that “this conclusion might well be in accord with controlling precedent.” Although Justice Kennedy’s opinion does not spell out with precision how to distinguish between unpatentable abstract ideas and patentable processes, it does offer some “clues” for drawing such distinctions that deserve attention going forward. Part II of this chapter discusses the clues we think are most likely to be useful to the PTO and the courts in developing a jurisprudence about abstractness as a disqualification from patent protection. Part III explains why, in light of these clues and in line with sound patent policy, business and service method innovations, although not categorically unpatentable, should still generally be excluded from patent protection as abstract ideas. Part IV provides further support for this approach by suggesting that taking the clues of unpatentability seriously may facilitate administrative and judicial efficiency in reviewing patent claims when assessing whether they satisfy patent subject matter rules.

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  A Conceptual Roadmap for Social Science Methods in Human Rights Fact-Finding

  Margaret L. Satterthwaite and Justin C. Simeone

  Quantitative analyses are a powerful tool in the human rights practitioner’s methodology toolbox. Statistics allow researchers to reframe and examine topics in order to provide context or insights different from the information gathered in qualitative interviews, with the most common uses of data analysis being to demonstrate the scope, distribution (over geography and/or time), or variance of a human rights problem. Because numbers demand attention, there is increasing motivation to utilize data and statistics in human rights fact-finding. However, practitioners risk using methodologies or techniques inappropriately, either because of pressure to use new techniques they do not fully understand or to use a known methodology when another technique would be more appropriate. Increasing human rights practitioners’ quantitative literacy is the first step to guard against inappropriate or ineffective use of data and statistics. Practitioners need to develop quantitative literacy so as to understand the methodologies used to gather data.

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  Neither Principled nor Conservative: The Legacy of Chief Justice William H. Rehnquist

  Stephen J. Schulhofer

  No one can doubt Chief Justice William H. Rehnquist's enormous impact on American criminal justice. Across the ideological spectrum, however, many question whether that impact was salutary and whether it was achieved by methods that honor a judge's first commitments—to consistency, intellectual honesty, and fidelity to the Constitution. Miranda v. Arizona will always be the central battlefield in this debate. Rehnquist thought that Miranda was wrongly decided and worked tirelessly to blunt its requirements. Seen through the lens that Rehnquist supplied, Miranda came to appear increasingly implausible and even incoherent. Yet when the opportunity came to overrule it—that is, to follow through on the implications of his own logic and principles—Rehnquist famously balked, provoking the ire of many conservative academics and his most conservative judicial colleagues. Justice Scalia, especially dismayed, charged that Rehnquist, in a display of “judicial arrogance,” had “disclaim[ed] responsibility for reasoned decision making.” It is here that the challenge lies for those who would defend Chief Justice Rehnquist's judicial legacy. He succeeded in rolling back much of the Warren Court's edifice of safeguards for criminal suspects. And he did so in a way that aroused a minimum of public opposition. Stephen Smith finds virtue in the techniques Rehnquist used to achieve these results. And in many contexts, we might be tempted to agree; in a president or a senator, we might well admire the tactical skills that produced these accomplishments. But if the judicial craft is more than just politics by a different name, if judicial power ultimately must rest on candor and a commitment to the reasoned elaboration of principle, then we must hope that present and future Justices, regardless of political or jurisprudential ideology, will not take Chief Justice Rehnquist as a role model or seek to emulate his methods. Of course, no assessment of Rehnquist's tenure can neglect his objectives—the vision of the Constitution that he sought to advance. Indeed, among both admirers and critics, Rehnquist's goals are usually what matter most. Smith acknowledges that the Rehnquist opinions have burdened criminal procedure with a staggering array of exceptions and loopholes. But their ultimate goal, he thinks, gives them legitimacy Like much of the American public, Smith takes it as a given that the Warren Court had a radical agenda and that its holdings were based primarily on social policy preferences divorced from constitutional text and principle. He insists that its “decisions became unmoored from constitutional text,” and that "the Court would impose rules of procedure on the states simply because those rules, in its view, were fairer than the alternatives.” Rehnquist, he says, rejected these “abstract notions of ‘fairness’ and the ever-shifting calibrations of the judicial conscience” and instead made his lodestar “the Constitution itself-what it actually says.” And these assumptions about the Warren Court confer presumptive legitimacy on the Rehnquist project of pushing back, of aiming to reverse the Warren Court precedents, even if the Chief Justice sometimes pushed back in unprincipled ways himself. Reasonable people differ about whether the Warren Court decisions were well grounded in traditional principles of constitutional interpretation. But nearly all constitutional scholars, regardless of ideological or jurisprudential perspective, would acknowledge that Smith's account gets the constitutional history and the respective positions of the Warren and Rehnquist Courts exactly backwards. Whatever its merits (and there was once a lively debate about this), the criterion that measured constitutionality in state criminal procedure by “abstract notions of ‘fairness’ and the ever-shifting calibrations of the judicial conscience” was precisely the approach that the Warren Court opposed. This was the approach that held sway in state criminal cases until the 1960s and included the famous “totality of the circumstances” and “shock the conscience” tests that Justice Black and other voices of the Warren Court forcefully criticized throughout the 1950s. The effort to determine “fundamental fairness” with respect to police interrogation and other aspects of state criminal procedure was the approach that the Warren Court decisions rejected, replacing it with a jurisprudence grounded in the more precise language of the Constitution's Bill of Rights—the first eight amendments to the Constitution. And this “fundamental fairness” approach, which Smith rightly criticizes as elusive and untethered to constitutional text, is precisely the approach that Chief Justice Rehnquist himself expressly advocated and worked hard to revive. Thus, in seeking a return to the jurisprudence that prevailed before Earl Warren, Rehnquist's goal was not to escape subjective assessments of “fairness.” Nor was it to make reliability a preeminent constitutional value in criminal procedure. Rehnquist did place reliability ahead of the rights of suspects. But when reliability concerns clashed with the preferences of law enforcement, Rehnquist gave priority to the latter. Indeed Rehnquist denied—expressly denied—that reliability in criminal procedure was a concern of constitutional dimension. Chief Justice Rehnquist's criminal procedure decisions therefore were not built on an aversion to vague, subjective judgments of fairness, and they were not shaped by a commitment to reliability as a constitutional value. Rather, the constant in the Rehnquist jurisprudence was a steady, predictable, openly acknowledged preference for allowing law enforcement greater leeway. Smith sees that preference as another of Rehnquist's virtues, and he celebrates Rehnquist's success in making law enforcement needs a prominent (sometimes dominant) factor in constitutional interpretation. On this third point Smith's account is quite accurate; it perfectly captures the essence of the Rehnquist judicial philosophy. Perhaps surprisingly, however, that philosophy cannot easily be accepted as a genuinely conservative approach to constitutional interpretation, and from any perspective its place in constitutional decision making is awkward at best. To make clear why so many criminal procedure scholars, regardless of ideological preference, have difficulty admiring the Rehnquist legacy in criminal procedure, I will first trace the evolution of criminal procedure from the pre-Warren to post-Warren eras. I will then examine in more detail the constitutional foundation for the Court's decisions on police interrogation and the Fourth Amendment exclusionary rule—decisions that were based directly on specific constitutional language and conventional principles of constitutional interpretation. Finally, I will discuss some of the broader values that allegedly animated Chief Justice Rehnquist in his effort to roll back these decisions—in particular, accuracy in the adjudication of guilt. The picture that emerges is that of a Justice who could be inconsistent, disingenuous, and disdainful of accuracy as a value worthy of constitutional protection. Rehnquist's top priority was to enhance law enforcement discretion in order to afford maximum possible latitude for prosecutorial authorities and for the police officer on the beat. That agenda, though undoubtedly popular with much of the American public in Rehnquist's day (and ours), cannot be extolled or admired. It is profoundly antithetical to genuinely conservative values and to sound principles of constitutional adjudication.

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  ADR Mechanisms for Custody Disputes in the United States

  Linda J. Silberman

  The essays in Volume 1 focus on the substantive law relating to the child-parent relationship in terms of custody and access and on procedural frameworks adopted around the world to resolve disputes arising between parents in relation to their children. The first group of essays offers a comparative analysis of the paradigm shift occurring in post-divorce child law away from notions of custody, care and control to that based on “parental responsibility” in diverse jurisdictions such as England, Hong Kong, New Zealand, China and Europe. In the second section, essays focus on the procedural framework within which disputes relating to parenting and care of children post-divorce may be resolved, with particular focus on the development of specialized children’s dispute resolution procedures in various jurisdictions. The final essays highlight the progressive work of the Hong Kong Judiciary in introducing many procedural reforms in family law and children’s dispute resolution (with many involving a greater use of ADR processes), but also lament the lack of legislative reform in family justice. Volume 1 concludes by focusing on the need for greater empirical research and collection of data to allow for better evidence-based and informed policy making in family justice and child law reform in Hong Kong.

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  A Building Blocks Strategy for Global Climate Change

  Richard B. Stewart, Michael Oppenheimer, and Bryce Rudyk

  The likely future global climate regime, based on nationally determined, non-legally binding commitments, is not by itself likely to produce emissions reductions sufficient to prevent dangerous climate change. There is, however, already significant mitigation occurring outside the context of the UNFCCC that could potentially be scaled up to fill the gap. This chapter, expanding on earlier work, proposes a building block strategy that focuses on incubating and scaling up multilateral and multi-stakeholder initiatives in discrete sectors with mitigation potential. It outlines three paradigms—clubs, linkage and dominant actor—that provide a conceptual and institutional framework for mobilising non-climate interests of actors in order to generate associated climate benefits. Finally, it suggests that recent institutional developments in the UNFCCC could be used as a platform to launch and enhance these non-UNFCCC initiatives, compatible with the emerging UNFCCC strategy.

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  Whales and Seals and Bears, Oh My! The Evolution of Global Animal Law and Canada's Ambiguous Stance

  Katie Sykes, Joanna Langille, and Robert L. Howse

  This chapter looks at the emergence of a new perspective on animals in international law, and the Canadian government's position vis-a-vis this development. We articulate three main propositions. First, although animal protection used to be thought of as mainly or even solely a domestic matter, it is becoming a recognized (although still nascent) field in international law, so much so that scholars are now paying serious attention to a phenomenon called “global animal law.” Second, the record on Canada's participation in this growth of global animal law has been decidedly mixed, and on balance Canada has been more obstructive than supportive. While the government has provided some limited and symbolic support for global animal welfare initiatives regarding domestic animals, it has actively opposed the development of progressive international norms with respect to certain wild species that are subjects of particular concern in international law: whales, seals, and polar bears. Our third proposition reflects our attempt to explain why this second proposition is the case. We posit that the limit to Canada's support of emerging global animal law is found where international efforts to promote animal protection conflict with the government's perceived political interests, and where these efforts lead to difficult tensions in Canada's relationship with its Indigenous peoples. This is not to suggest, of course, that Canadians are on the whole opposed to stronger international protection for animals, nor to downplay the important contribution of Canadian-based civil society organizations to the international movement to curtail exploitation of whales, seals, and polar bears, and still less to deny the deep affinities that do exist between progressive international norms regarding animals and the way Canadian Indigenous peoples conceptualize ethical relationships between humans and animals.4 Rather, what we want to convey is that the Canadian government's position on these issues is driven by its chosen strategy for bargaining with certain politically influential or sensitive geographically constituted interest groups, and its decision to sign on to the rhetoric used by some leaders of those groups regarding hunting and wildlife exploitation. By making those choices, Canada's government has led this country away from its traditional place as a leader in the development of international norms, a decision that has been exacerbated by the Harper government's more general rejection of international law.

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  How Does Legal Change Happen? Perspectives from the Academy

  Michael Waldman, Barry Friedman, Helen Hershkoff, and Kenji Yoshino

  Popular constitutionalism is the subject of intense study in the academy. Three top law scholars discuss the different ways to achieve lasting social change: through legislatures, the courts—and the court of public opinion.

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  Foreword

  Jeremy Waldron

  The Supreme Court of New Zealand 2004-2013 was conceived as a critical review of the New Zealand Supreme Court's first decade of operation. It contains a variety of perspectives on and approaches to examining the Court's contribution to New Zealand law from its creation on 1 January 2004 until the end of 2013. Chapters focus on the areas of law in which key decisions have been made, including: company, torts, judicial review, contractual interpretation, public, employment, bill of rights, taxation and criminal. Other contributions include a barrister's perspective on the Court's performance, two chapters using empirical analyses to consider the decisions of the Court both in applications for leave to appeal and in substantive appeals, and a complete list of the accessible outputs of the Court, the latter being previously unavailable from a single source. This book will be of particular interest to litigators who specialise in areas of law covered in its chapters, as the analysis of the Supreme Court's decisions provides them with insight into the way in which the judges approach different types of cases, allowing them to craft their submissions in ways that accord with the judges' approach.

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  How to Do Things with Standards

  Jeremy Waldron

  The distinction between rules and standards is nowadays a commonplace of American jurisprudence. A speed limit is a rule; a norm that requires drivers to take reasonable care is a standard. The distinction is between a norm that uses relatively precise, descriptive and perhaps even operationalized predicates in its protasis and apodosis, and a norm that, in its protasis and apodosis, uses evaluative or other vague terms whose application requires thought, evaluation or judgment on the part of the norm applier. The distinction between rules and standards is less well known in the United Kingdom, in British jurisprudence. It doesn’t really feature in William Twining and David Miers’ book, How to Do Things with Rules: there is no entry for ‘standards’ in the index to that book. In fact, Twining and Miers explicitly disavow any real interest in different types of norms. They seem to want to use ‘rule’ as a very general term, meaning ‘a general norm mandating or guiding conduct or action in a given type of situation’, and they agree that this definition is ‘somewhat broader than the term is sometimes used in ordinary discussion’. They do cite (and criticize) Ronald Dworkin’s distinction between rules and principles; but they concentrate mainly on his distinction between norms that apply in an all-or-nothing fashion (‘rules’, according to Dworkin) and norms that guide but do not necessarily determine a result (‘principles’). (They do not pay attention to his account of the different modes of presentation of rules and principles in the law: rules present themselves, are recognized, and operate at the surface of enacted law whereas principles reside deep within the spirit of a legal system and are not easily discerned by a ‘rule of recognition’.) Dworkin probably erred in thinking that H. L. A. Hart was using the term ‘rule’ in the rather narrow sense that American jurists have in mind when they contrast rules and standards. And Dworkin confused matters further by using the term ‘standard’ as a very general term, meaning roughly ‘norm’ and comprising both rules and principles. So terminology in this area is a bit of nightmare. Even so, the distinction between rules and standards, as different kinds of surface-level or enacted norm, is pretty well known in America. The constitutional norm in Article II of the US Constitution stipulating the age that a person must have attained before he or she can become President of the United States is a rule: ‘neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years’. The use of a numerical predicate, ‘thirty five’, is typical of a rule, as is the existence of a clear and public method of establishing whether the norm condition applies—namely, the practice of issuing birth certificates and public and uncontroversial ways of counting the number of years that have elapsed since the day of a person’s birth. And the constitutional norm that limits the punishments and exactions that may be inflicted by US authorities is a classic example of a standard: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The word ‘excessive’ in both its occurrences is a term of evaluation, requiring normative judgment in its application; the same is true of ‘cruel’, though it is a slightly ‘thicker’ or more specific term of evaluation than ‘excessive’. Both are enacted norms, and so they both differ from the norms that Dworkin called ‘principles’. Dworkinian principles, however, usually have the characteristic that distinguishes standards from rules: they are best formulated, when they are formulated, with the use of evaluative terms. (The paradigm that Dworkin is famous for using, ‘No one shall profit from his own wrongdoing’, is an example. It requires evaluative judgment, not only to discern the principle but to apply it.) The distinction between rules and standards is not hard and fast, partly because the term we are using to make the distinction—‘predicates that require evaluative judgment in their application’—is not itself precise: for example, is ‘unusual’ in the Eighth Amendment such a term? But the purposes for which we draw the distinction do not themselves require precision. We are interested in the distinction between rules and standards partly because of the different political responsibilities that they indicate. Doing things with norms involves acting or requiring action pursuant to certain value-judgments. In the case of rules, all the relevant value-judgments are made by those who frame and enact the norm. In the case of standards, however, some of the relevant value-judgments are left to be made by those whose task it is to apply the norm. With rules, value-judgments are made upstream at the legislative level; with standards, some of the relevant value-judgments are made downstream on the streets or in the courtroom. We are also interested in the distinction between rules and standards, because of the particular problems that they pose. Standards pose problems of disparate and unpredictable application in a pluralistic society; what counts as ‘cruel’ or ‘excessive’ to some people in a given society may counts as ‘entirely appropriate’ to other members of the same society, and it may be impossible for the subject of a norm to figure out which group his actions will be at the mercy of. Rules pose problems of arbitrarily concocted precision in circumstances where precise application is sought for its own sake rather than for the sake of tracking boundaries that are in themselves morally relevant. There is nothing particularly significant about a thirty-five year age qualification for the presidency, as opposed to thirty-six or thirty four-and-a-half; relative to those possibilities, the constitutional standard is arbitrary. We insist arbitrarily on precision here just because we want a bright-line distinction, not because the thirty-five-year cut-off has any moral significance in itself. Thirdly, we are interested in whether adjudicators and other interpreters should see standards as ‘inchoate’ rules. Presented with a standard, as I have defined it, should a judge or a bench of judges see it as their task to convert the standard into a rule by pinning down its application in various determinate ways? Or are there ways of interpreting and elaborating a standard which keep faith with the fact that it was not promulgated as a rule—with the fact that it was, as Henry Hart and Albert Sacks put it, ‘an avowedly indeterminate directive’? These interests do not presuppose a bright line between rules and standards. But their pursuit is interesting for jurisprudence nonetheless. The case of standards helps complicate and deepen our sense of how people can do things with norms. I said that Twining and Miers do not make use of the distinction between rules and standards. They do talk briefly about the idea of a standard, even though they don’t use that terminology. One interesting point they make is that norms whose expression embodies value predicates can sometimes operate categorically as rules (in the narrow sense). There is no necessary correlation between precision and prescriptive status. So, for example, Article 3 of the European Convention on Human Rights operates categorically to forbid torture and inhuman and degrading treatment; the fact that these terms are general and evaluative in character does not diminish the categorical character of the norm that embodies them. I think it is a pity that Twining and Miers did not explore the idea of standards beyond this. In the rest of the paper, I want to give a taste of what such exploration might reveal—of the different ways in which a lawmaker and the community for which he legislates can ‘do things’ with standards.

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  Is Dignity the Foundation of Human Rights?

  Jeremy Waldron

  In this chapter I would like to examine, in part with the eye of a pedant, the proposition that human dignity is the foundation of human rights. That proposition, or something like it, is found in the preambles of the major human rights conventions, and it is quite common too in the rhetoric of scholars addressing the subject of rights. It bears examining for all sorts of reasons: first, on account of the recent revival in the philosophical study of dignity; second, because people continue to disagree about human rights and it is worth looking into any thesis that promises to help us with these disagreements; third, because claims about dignity, if put forward as foundational, may provide a basis for challenging other values or principles that have also claimed to occupy this foundational ground (like the principle of utility, for example); and fourth (and this is a reason that takes us in a different direction) because the very idea of foundations for our political ideals has been called in question, and what we find out about dignity may confirm (or refute) the proposition that searching for foundations is more trouble than it is worth. I hasten to add that I am undertaking this inquiry, not to discredit the concept of dignity, but to clarify its role in human rights theory. Some of the things I will say at various stages may seem critical, even dismissive. But it is not the aim of this chapter to denigrate the idea of dignity in relation to rights. For even if it turns out that a strict understanding of the foundationalist claim cannot be defended, still there may be other ways in which dignity will turn out to be important in our understanding of human rights. Subjecting the foundationalist claim to critical scrutiny may have the side-benefit of revealing some of these.

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  Isolating Public Reasons

  Jeremy Waldron

  This chapter will consider the attractions of a position that runs roughly along the lines of Rawls’s account of public reason. It will then consider some reasons for steering clear of positions of this kind. My argument is not directed at John Rawls’s view as such. I want to describe and criticize a view of a certain kind, one that comes close to his at a number of points. But I am going to set up the idea of public reason in a way that is quite different from the way it is set up in Political Liberalism. I hope not to get bogged down in fine issues of Rawls exegesis. If the difficulties of this kind of view are as I say they are, then that should have some effect on people’s readiness to subscribe to even a generous version of Rawls’s view. But Rawls’s own exposition has all sorts of conditions and qualifications built into it. If there are details in his account that enable it to avoid the criticisms I make of views of this kind, so much the better. I still think that understanding these criticisms is important.

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  The Rule of Law in Public Law

  Jeremy Waldron

  Is the political ideal we call ‘the rule of law’ biased towards private law? There are definite tendencies in that direction and these tendencies make it difficult to develop an understanding of how the rule of law applies in the realm of public administration. The tendency towards private law also introduces an unwelcome ideological element, inasmuch as the rule of law can all too easily become associated with special respect for the rights of property owners, employers, and investors in cases of conflict between these rights and the business of public administration. Of course the business of public administration is not self-justifying. And the rule of law is not doing its proper normative work unless it disciplines and constrains the way that business is carried out. Still, we should consider the prospects for a normatively robust conception of the rule of law that does not minimize or deprecate the mission of public administration. That is what I shall undertake in this chapter. A unified ideal? The task of developing a conception of the rule of law that applies to public law in particular faces an immediate challenge from those who deny the importance of the traditional distinction between public and private law. Maybe there is no distinction. Maybe we should say that in the last analysis all law involves the operation of the state on society; all law is public law in some ultimate sense. If so, then perhaps the rule of law should be conceived as an entirely general idea, prescribing the uniform application of a discipline of legality to state action across the board. After all, whether the state is operating in the field of public administration or whether it is resolving private disputes, we have to face the possibility that it might be acting extra-legally, without reference to legal rules, principles, and procedures. We might say, normatively, that the point of the rule of law is to foreclose that possibility—again across the whole field. We might say that; but should we? When we subject the state's operation in the field of public administration to the discipline of the rule of law, should we use exactly the principles we use when we apply the discipline of legality to the resolution of private disputes?

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  The Strains of Commitment

  Jeremy Waldron

  The parties in the original position “cannot enter into agreements that may have consequences they cannot accept. They will avoid those they can adhere to only with great difficulty . . . [W]hen we enter into an agreement we must be able to honor it even should the worst possibilities prove to be the case”. On some readings, these propositions are key to John Rawls's argument against utilitarianism in TJ. The principle of average utilitarianism has the potential to require that great deprivations – deprivations of liberty and material deprivations—be borne by some individuals for the sake of a greater sum of benefits to others. Anyone contemplating the choice of the utilitarian principle in Rawls's original position must take this into account and take into particular account that she may turn out to be one of those who will suffer deprivation of this kind. Utilitarianism, we know, is not constrained by any fundamental requirement that these burdens be tolerable at the individual level. But if there is a prospect of some people facing a requirement that they bear intolerable burdens, then the principle that generates such a requirement does not satisfy what Rawls calls “the strains of commitment”, and the people in the original position must reject it. “Otherwise,” as Rawls puts it, they “have not acted in good faith”. The strains of commitment argument operates independently of whatever rational choice argument can be made in favor of a maximin approach to decisions made in the original position. According to the rational choice argument for maximin, it is not rational to choose any principle that will lead to outcomes that are worse for certain individuals than those resulting from the application of Rawls's two principles. Rationality requires risk aversion in the original position even if, statistically, a principle like average utilitarianism defines a better bet than Rawls's principles. But this rational choice argument for maximin is precarious and it is deprecated by most commentators. At worst it involves a question-begging stipulation of a risk-averse mentality for the parties in the original position. At best it relies on arguments about our inability to define rational choice for a single (one-off) bet that is supposed to shape one's life chances once and for all, as opposed to the open-ended series of bets that gaming rationality seems to presuppose.

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  From Regensburg to Berlin—Holiness and Reason: A Reflection on Pope Benedict XVI's Public Lectures

  Joseph H. H. Weiler

  A Pope speaks Urbi et Orbi, as Bishop of Rome and as a moral leader to the world. I expect that Pope Benedict XVI’s intellectual legacy to the world will not reside in his encyclicals or apostolic letters, but in a remarkable set of speeches—at the UN, at the Colleges des Bernardins in Paris, at Westminster, and above all at Regensburg and Berlin in his address to the German Bundestag. It would be redundant, perhaps even otiose, once again to parse through Regensburg and the Bundestag speeches. I will try first succinctly to recapture their most essential messages—and the nexus between the two. But the burden of this reflection will in going beyond the two speeches and exploring some of their implications and consequences—intended and unintended. Most important I will emphasize what lessons should not be taken from the Pope’s remarkable discourse.

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  Upstairs/Downstairs, Fashionwise : A View of Design Protection from Lower Down the Food Chain

  Diane L. Zimmerman

  This chapter focuses on the consumer's stake in a “knock-off” fashion. “Knock-offs,” are copies or close adaptations of “status” clothing and accessories, that, because of their lower purchase prices, are accessible to consumers with widely varying degrees of purchasing power. It suggests that positive social benefits flow from a legal regime that allows ready access to knock-offs, and that these benefits deserve considerable weight in deciding how intellectual property protection should proceed.

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  The First Amendment and the Second Commandment

  Amy M. Adler

  We live in an image culture, a world in which images are so ubiquitous as to be unremarkable. It is said that the image has surpassed the word as the dominant mode of communication. It seems preposterous to suggest that in this modern, digital, visual culture, we might still feel the ancient, bewitching pull of images, the instinct that images possess an uncanny power or danger. Surely, this view of images is archaic; it resembles the view that motivated both idolaters and iconoclasts in earlier, supposedly more primitive, cultures. Yet I believe this ancient view of images is alive and well (although we don’t acknowledge it) in the modern and supposedly rationalistic world of contemporary First Amendment law. In my view, First Amendment law consistently and unthinkingly favors text over image and it does so for reasons that bear a remarkable similarity to the reasons that motivated iconoclasts throughout the history of religious and secular struggles over images. In this Chapter, I explore a variety of free speech doctrines to establish that First Amendment offers greater protection for verbal as opposed to visual forms of representation. Curiously, this consistent preference for text over image is buried in the doctrine; assumed and almost never acknowledged, its real world implications are dramatic. I then show that the First Amendment treatment of images echoes the approach to visual imagery that animated the biblical prohibition on graven images and the historical, religious impulse to destroy images. The view of images that motivated iconoclasts, the perception of images as invested with magic powers or indistinguishable from what they represent, persists unrecognized in contemporary First Amendment law and theory.

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  Foreword: The Hard and Soft Power of the Security Council

  José E. Alvarez

  Security Council resolutions have undergone an important evolution over the last two decades. While continuing its traditional role of determining state-specific threats to peace and engaging accordingly in various peaceful or coercive measures, the Security Council has also adopted resolutions that have effectively imposed legal obligations on all United Nations member states. This book seeks to move away from the discussions of whether the Security Council—in the current composition and working methods—is representative, capable or productive. Rather it assesses whether legislative activity by the Security Council can be beneficial to international peace and security. The authors examine and critique the capacities of the Security Council to address thematic international threats—such as terrorism, weapons proliferations, targeting of civilians, recruitment of child soldiers, piracy—as an alternative to the traditional model of addressing country-specific situations on a case-by-case basis. Ultimately, the book seeks to assess the efficacy of the Security Council as global legislator in terms of complementing the Security Council’s mandate for the maintenance of international peace and security with a preventative and norm-setting capacity. The book presents views from a diverse range of Security Council stakeholders including academic scholars, political analysts, and international lawyers. This resource will be of great interest to students of international relations, international organizations and international security studies alike.

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  What Are International Judges For? The Main Functions of International Adjudication

  José E. Alvarez

  International judges and arbitrators are commonly portrayed in simple terms: they are interstate dispute settlers engaged in avoiding or deterring threats to peace. This is suggested by the United Nations Charter, other treaties, and scholarship across time. The intertwined functions of settling disputes and maintaining peace, self-evident to those at the turn of the nineteenth century, continue to explain the function of today’s diverse courts and tribunals. Those functions are clearly engaged when International Court of Justice (ICJ) judges settle territorial disputes or those involving the use of force, when the UN Security Council establishes the International Criminal Tribunals for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) pursuant to its Chapter VII powers, or when the International Criminal Court (ICC) is established on the premise that without criminal accountability there can be no lasting peace in societies victimized by mass atrocities. Trade and investment lawyers also rely on the “conflict resolution” rationale. Trade lawyers describe the function of the World Trade Organization’s (WTO’s) dispute settlement system as resolving disputes that historically have led to wider interstate frictions while defenders of the International Centre for Settlement of Investment Disputes (ICSID) argue that investor-state arbitrations are necessary alternatives to “gunboat diplomacy.” Of course, the “dispute settlement” function also has been affirmed by innumerable international judges and arbitrators, most often in the course of disclaiming that they have any role other than applying pre-existing law to settle the narrow dispute before them. The dispute settlement function explains much of what international adjudicators do, but as many contributors to this volume indicate, it is insufficient. To the extent that a theory of adjudication aspires to explain the “functions” of judges or arbitrators, as Besson suggests in her contribution, we might focus, alternatively, on what those who establish courts and tribunals seek to achieve directly in the course of adjudication, on the broader societal goals that such legal proceedings are believed to secure, or adopting a more internal perspective, on what the adjudicators themselves see as their function. In addition, a functional analysis might address only the most generalizable functions shared by all or most of these bodies at the expense of considering the more specialized roles that only some of these courts take on. To add to the terminological confusion, those who address the “systemic” functions of adjudication, at the most general of levels, rarely agree on the descriptive labels they use. In this volume, Besson, for example, distinguishes the “law-identifying” from the “lawmaking” function, indicating that both occur in the course of settling disputes (which she describes as the “law-enforcement” function). She also identifies a distinct “review” function consisting of judicial control over executive action. Elsewhere, von Bogdandy and Venzke have described the functions of courts as settling disputes, stabilizing normative expectations, making law, and controlling and legitimating public authority. At the risk of inspiring more confusion, this chapter seeks to describe the complex and sometimes contradictory systemic aspects of “dispute settlement” as an objective matter, taking into account both the goals of stakeholders as well as the adjudicators themselves. It pays particular attention to the ICJ, international criminal courts and the respective mechanisms used to resolve trade and investment disputes.

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  The Hybrid Clinic: Bringing the In-House Clinic to the Field

  Claudia Angelos

  This book focuses on what and how to teach students about being a lawyer as they take responsibility for clients in a clinical course. The book identifies learning and lawyering theories as well as practical approaches to planning and teaching; it highlights how the four clinical methodologies—seminar, rounds, supervision, and fieldwork—reinforce and complement each other. The book illustrates clinical education's transformative potential to create ethical, skilled, thoughtful practitioners imbued with professional values of justice and service. With contributions by both seasoned and newer clinical educators, the book addresses issues faced by all who teach in experiential lawyering courses.

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  A Master of His Trade

  Kwame Anthony Appiah

  Essays In Honour of Wole Soyinka at 80, edited by two award-winning African writers is a celebration of the literary life of Wole Soyinka at an important stage in his life. The volume provides the most extensive anthology ever produced on Africa’s first Nobel Laureate in Literature and features 30 essays with a foreword by the former Secretary-General of the Commonwealth, Chief Emeka Anyaoku. With contributions from three Nobel Laureates: Toni Morrison, Nadine Gordimer and Derek Walcott and other contributions from African leaders, scholars, writers and literary critics from around the world, they assess Soyinka’s perspectives on power, politics and the arts to create dialogue and debate. Diverse aspects of his life are reflected in six themes in this volume that also documents the literary and cultural histories of West Africa from the 1950s to the present day. The Kenyan writer Ngugi wa Thiong’o describes Soyinka as: “A writer and public intellectual, who has voiced his concerns over major happenings in different parts of the continent over the last fifty years and more, Soyinka has become the moral and democratic conscience of Africa.”

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  Expressive Neutrality

  Kwame Anthony Appiah

  The topic of neutrality on the good is linked rather closely to the ideal of political liberalism as formulated by John Rawls. Here internationally renowned authors, in several cases among the most prominent names to be found in contemporary political theory, present a collection of ten essays on the idea of liberal neutrality.

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  Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction

  Kwame Anthony Appiah

  A Language and Power Reader organizes reading and writing activities for undergraduate students, guiding them in the exploration of racism and cross-racial rhetorics. Introducing texts written from and about versions of English often disrespected by mainstream Americans, A Language and Power Reader highlights English dialects and discourses to provoke discussions of racialized relations in contemporary America. Thirty selected readings in a range of genres and from writers who work in "alternative" voices (e.g., Pidgin, African American Language, discourse of international and transnational English speakers) focus on disparate power relations based on varieties of racism in America and how those relations might be displayed, imposed, or resisted across multiple rhetorics. The book also directs student participation and discourse. Each reading is followed by comments and guides to help focus conversation. Research has long shown that increasing a student's metalinguistic awareness improves a student's writing. No other reader available at this time explores the idea of multiple rhetorics or encourages their use, making A Language and Power Reader a welcome addition to writing classrooms.

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  Odupon Kesee Atutu (A Great Tree Has Fallen. Asante-Twi)

  Kwame Anthony Appiah

  Chinua Achebe (1930-2013) is widely recognized as the founding father of modern African literature in English. His first novel, Things Fall Apart, published in 1958, not only contested European narratives about Africa, but also challenged assumptions about the form and function of the novel. Throughout his long career, Achebe was a voice for the peoples of Africa and also a formative influence on a new generation of African writers. This volume of tributes and reflections is a fitting testament to his legacy