Faculty Chapters

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  Responses and Discussion

  Kwame Anthony Appiah

  This chapter presents responses to the discussions in Chapters 2 and 3. For instance, the insistence in Chapter 3 that the ethical relation of reading needs to stand in relation to an author, a person, and not simply to a text brings a measure of dissent from the respondents, each of whom offer reinterpretations of who or what it is that we may feel responsible to in the act of reading. One respondent also dismisses the notion of an ethics of reading as an attempt by literary critics to rescue their work from the charge of nihilism or futility.

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  Reality Check: How Malpractice Facts Changed Malpractice Liability Theory

  Jennifer H. Arlen

  States impose malpractice liability for medical negligence in order to induce medical providers to invest adequately in patient safety. The central challenge is how to structure liability to induce physicians and medical institutions to invest optimally in patient safety.

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  Criminal Trials

  Rachel E. Barkow

  A landmark work of more than one hundred scholars, The Heritage Guide to the Constitution is a unique line-by-line analysis explaining every clause of America's founding charter and its contemporary meaning. In this fully revised second edition, leading scholars in law, history, and public policy offer more than two hundred updated and incisive essays on every clause of the Constitution. From the stirring words of the Preamble to the Twenty-seventh Amendment, you will gain new insights into the ideas that made America, important debates that continue from our Founding, and the Constitution's true meaning for our nation.

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  The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld’s Odol Opinion and Frank Schechter’s "The Rational Basis of Trademark Protection"

  Barton C. Beebe

  Frank Schechter’s 1927 article "The Rational Basis of Trademark Protection", which remains the most cited law review article ever written on trademark law, is generally recognized as the origin of the concept of trademark dilution. Yet as is less well recognized, Schechter’s discussion of trademark dilution in "Rational Basis" relied heavily, though cagily, on the true origin of the concept: the 1924 Odol opinion of the German Landgericht Elberfeld. "Rational Basis" quotes extensively from the Odol opinion and borrows much of the opinion’s argument and terminology. Yet Schechter suppressed and apparently deliberately deleted from his quotation of the opinion its central holding, that "[i]t is opposed to good morals to appropriate thus the fruits of another’s labor in the consciousness that that other will or may thereby be damaged." This brief essay, a chapter in the forthcoming "Intellectual Property at the Edge: The Contested Contours of IP" (Rochelle Cooper Dreyfuss and Jane C. Ginsburg eds. 2013), argues that Schechter deliberately sought in Rational Basis to obscure the true nature of the Odol case and of antidilution protection, and that even a century later, his effort at obfuscation remains more or less a success, at least in the United States. What Schechter sought to obscure in "Rational Basis" is that the Odol case was not, strictly speaking, a trademark case. Rather, it was a misappropriation case that happened to involve a trademark. Schechter sought to suppress this basic truth — that the concept of trademark dilution is essentially a misappropriation concept — in order to sell his proposed doctrinal reforms to an American audience altogether suspicious of misappropriation doctrine and increasingly under the sway of American Legal Realism. To do so required a great deal of finesse, or to but it more bluntly, of dissembling, and "Rational Basis" is full of it. Due both to its frequent misdirection and ambiguity and to its emphatic suppression of any suggestion that trademark dilution is a form of misappropriation, "Rational Basis" has remained an altogether open text. Concepts like "blurring" and "tarnishment" have rushed in to fill the void left in the absence of misappropriation. Even now, in the face of ever more scholarly and judicial commentary recognizing that dilution is essentially a form of "free-riding," and likely one that typically inflicts no substantial harm on the misappropriated mark, the obfuscatory nature of Schechter’s text enables the concept of dilution to survive — and thrive — behind a fog of indeterminacy.

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  Freedom of Association and the Right to Contest: Getting Back to Basics

  Alan Bogg and Cynthia Estlund

  In the wake of union decline, scholars and activists have turned to the concept of ‘freedom of association’ (FOA)—the right of workers to form and join trade unions—as a basis for fortifying worker voice. Unlike recent work that seeks to build upon the FOA (to derive, e.g.,a right to strike), this chapter investigates its underpinnings. Drawing on Philip Pettit's philosophical work on civic republicanism and freedom as non-domination, we contend for the recognition of an individual right to contest employer power, free from state and employer interference. That fundamental right, coupled with a right to do collectively what one has the right to do individually, provides a normative foundation for protecting both informally concerted activity and more familiar trade union activity. We use this lens to map labour rights in the UK, US, and Canada, and to identify gaps in the law and scholarship regarding fundamental labour rights.

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  Knowledge in Fiduciary Relations

  Richard R. W. Brooks

  This chapter focuses on the knowledge and information structure in the fiduciary context. The aim of this focus is to gain greater perspective on the distinctive features of fiduciary relationships and the laws that govern them. By emphasizing knowledge and information, the purview of fiduciary duty is expended beyond the overburdened, and often underspecified, duties of loyalty and care—bringing to light other key fiduciary obligations, including duties of candor, confidence, and disclosure as well as the requirement to inquire, to be informed, and the like. Distinct legal and economic taxonomies are presented to reveal how economics and law construes and constructs knowledge. These taxonomies are elaborated through a simple economic contracting framework and applications to cases and doctrine from agency and other fiduciary relations. The chapter concludes with a brief consideration of the “information fiduciary,” a somewhat novel application of fiduciary principles to persons possessing information of or about others outside of traditional fiduciary contexts.

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  Foreword

  Jerome A. Cohen

  Anyone who has been privileged to teach at major American law schools for several decades is likely to have taught at least a few students who have subsequently become politically prominent. Of course, many students who burn with political ambition during their law school days are later seduced by other opportunities or frustrated by the vicissitudes and uncertainties of a political career. It is difficult for any professor to predict which of his interested students is likely to climb to the top of the greasy political pole. Yet occasionally a student stands out as having the talent, determination, and courage required for political success. Lu Hsiu-lien surely met that description during the year that she spent at the Harvard Law School in 1977–78. Unlike most graduate students, Lu Hsiu-lien came widely heralded. I had heard about her achievements from students from Taiwan as well as American protégés who had lived on the island. Lu Hsiu-lien’s journalistic essays and books promoting women’s rights and her social activism had already made her a well-known figure at an early age. Moreover, although the repressive Nationalist (Guomin-dang) regime of that era did not tolerate the public expression of Taiwan-independence sentiments, Lu Hsiu-lien was also known as an advocate of democratic development and freedoms of expression, which would inevitably give voice to such sentiments. She was plainly no ordinary master of laws (LLM) candidate. Slightly older, more mature, less interested in business law, and focused on resuming public life on her return home after graduation, she stood out, even at Harvard, as a future leader deserving of scholarship assistance Lu Hsiu-lien added a lot to Harvard life. She frequently exchanged ideas with American and foreign students. While learning more about constitutional and international law, human rights, and even mainland China’s legal system, she wrote papers that helped me and other faculty members better understand the realities of Taiwan, which Nationalist propaganda misleadingly referred to as “Free China.” Lu Hsiu-lien also participated in the weekly informal discussions that I convened as part of the extracurricular activities of Harvard’s East Asian Legal Studies program. The academic year 1977–78 was a time of great tension in Sino-American relations. The world—not only the people on Taiwan—was waiting to see whether the new administration of President Jimmy Carter would complete the process of normalizing relations with mainland China, that is, the People’s Republic of China (PRC), that the Nixon administration had begun. That would require the withdrawal of formal US diplomatic recognition from the PRC’s Taiwan-based rival, the Republic of China (ROC), and termination of the US-ROC defense treaty. It was obvious to all that profoundly important developments were under way that put into question not only Taiwan’s security but also the nature and continuity of the island’s dictatorial Nationalist government. In those circumstances one can imagine the lively debates that occurred at Harvard and elsewhere, fueled in part by the contributions of students and visiting scholars from Taiwan. Although at that time it was still not possible for Harvard Law School to enroll students from the People’s Republic, our discussions of China policy did try—more faithfully than Chairman Mao’s regime had—to implement the traditional Chinese maxim “Let a hundred flowers bloom, let a hundred schools of thought contend.” Lu Hsiu-lien’s was not the only Taiwan voice opposed to the Nationalists, but hers was surely the most daring. Some others from Taiwan took a more moderate position, favoring reform rather than replacement of the Nationalists. The latter group included a brilliant doctoral candidate who became another star of contemporary Taiwan politics, Ma Ying-jeou, now in his second term as president of the ROC. Ma’s political views continued to differ markedly from Lu Hsiu-lien’s after both returned from Harvard to Taiwan. Nevertheless, in 1985 Ma, who had already become a deputy secretary-general of the Nationalist Party and English-language interpreter for President Chiang Ching-Kuo, played a key role in winning Lu Hsiu-lien’s release from prison after she had served five years of the twelve-year term to which she had been sentenced for advocating Taiwan independence. Ma’s bold effort, undertaken at my request, was undoubtedly motivated by not only “the old school tie” and a desire to grant the wish of a former professor, but also the hope of improving the Nationalist image, which had recently been further tarnished by the assassination of journalist Henry Liu in San Francisco. I have always been grateful for the effective help he gave us.

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  The Prospects for Anticorruption Law in Middle-Income Countries

  Kevin E. Davis

  All countries struggle to prevent public power from being used for private gain. Middle-income countries (MICs) are certainly no exceptions. Corruption is widely viewed as a substantial impediment to development in these countries, and ever-increasing amounts of attention are being paid to methods of controlling corruption. Contemporary anticorruption programs have a strong legal flavor. Tremendous amounts of effort have been invested in creating international legal instruments that bind states and international organizations to take various steps to combat corruption. In many cases those steps require further legal action, such as the creation of new organizations; changes in the structure of existing organizations; enactment and enforcement of prohibitions and disclosure requirements; or changes in the terms of contracts. These initiatives reflect remarkable optimism about the potential of law to effect positive social change. They presume that legal institutions can be used instrumentally to combat corrupt practices. Some of these initiatives also embody faith in the power of legal institutions that operate across national boundaries. The most innovative new approaches go beyond treaties and international organizations and try to recruit foreign courts, prosecutors, regulators, and plaintiffs into the project of combating local corruption, hopefully in a way that complements local efforts. It might be unreasonable to place this kind of faith in the legal institutions of low- income countries (LICs), where state capacity is sharply limited by resource con- straints. But in MICs the state is not bound by these kinds of constraints and so should, in principle, be capable of creating effective anticorruption institutions.

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  Law, Regulation and Development

  Kevin E. Davis and Mariana Mota Prado

  What is the relationship between law and development in the post-colonial era? Are particular types of legal institutions associated with particular modes of economic organization or trajectories of economic development? Is the relationship between law and development causal, in the sense that specific legal reforms cause specific development outcomes? Not of merely academic interest, these questions have major implications for policy-makers. This chapter traces the history of ideas about these topics, from Max Weber and his successors to proponents of the “right to development.” It identifies key limitations in the intellectual frameworks that have been dominant through the turn of the twenty-first century. Those limitations include: failure to draw upon the experience of countries in the global South; misplaced reliance upon problematic conceptual dichotomies—legal/non-legal, public/private, common law/civil law, and domestic/international; and failure to acknowledge the complexity and mutability of legal institutions. We conclude by examining emerging approaches that promise to overcome some of these limitations.

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  Europe’s Raison d’être

  Gráinne de Búrca

  What is the raison d’être of the European Union? Does it still make sense to ask this question today? Launched in 1952 as a kind of pilot project of limited economic integration with a view to securing greater peace and prosperity for its Member States, the EU has evolved into something much larger, more complex and more ambitious. This chapter argues, contrary to the recent suggestion of an influential commentator, that the question of the EU’s mission or raison d’être still matters today, and not only because of the serious economic crisis in which it has been mired since 2007. I argue that while the European Union at its origin was primarily inwardly focused on repairing and strengthening a damaged continent so as to deliver internal peace and prosperity, it has become as much or more concerned today with its external dimension, namely with enhancing Europe’s global economic and political influence and role. That is not to say either that the external dimension of European integration was unimportant at the time the Community was first created or that internal peace and prosperity have ceased to be central concerns in the present day. Far from it. Nevertheless, the last two decades in particular have brought a more sustained focus on the external and global significance of European integration. When the question of Europe’s raison d’être is raised today, the importance of having a relatively unified European political system to counterbalance the influence of other existing and rising powers has become a more significant part of the answer than was ever previously the case.

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  Foreword

  Gráinne de Búrca

  Recent years have seen exciting developments across many jurisdictions as far as the legal recognition of the rights of same-sex couples is concerned. It seems as though—at least in certain parts of the world—a tipping point has been reached in relation to legal recognition and protection for the rights of same-sex couples. These include the right to workplace benefits, the right to have relationships legally recognized and formalized, and the right to marry. Needless to say, there are a great many parts of the world where harsh forms of discrimination against same-sex couples are still enshrined in law and where few or no legal rights are accorded to same-sex couples. On the other hand, there has also been a cascade of reforms in recent years in Europe, in North and South America, and in many parts of the Commonwealth and elsewhere. Many of these reforms have been triggered or developed through litigation and adjudication before national, regional, and international courts and tribunals, and sometimes before several of these. This book is a wonderfully timely and an impressively wide-ranging survey of these judicial developments in the law relating to same-sex couples.

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  An International Perspective I: A View from the United States

  Rochelle C. Dreyfuss

  To students of US patent law and procedure, the decision by members of the European Union to adopt a unitary patent system (UPS) is intriguing. Because the United States operates under an analogous regime, Americans are arguably in a better position than are Europeans to predict how the new system will work out. In this essay, I start by describing how the procedures used in the United States to protect inventions and to decide patent cases developed, detailing the many ways in which the concerns now expressed in Europe echo the reactions Americans voiced as the US system unfolded. I then summarize the US experience and ask whether drafters of the UPS have managed to capture its benefits and avoid its pitfalls. I suggest that the Europeans have in some ways perfected what I have called the American experiment. At the same time, however, the EU may have made itself vulnerable to many of the problems with which the United States is currently coping. But I conclude that even if neither regime is perfect, together the two systems—along with similar developments elsewhere—can work in concert to improve both patent law and its global administration.

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  Intellectual Property Lawmaking, Global Governance, and Emerging Economies

  Rochelle C. Dreyfuss

  This chapter discusses the role that emerging economies could play in rendering intellectual property law and lawmaking more responsive to changing conditions. At present, neither the North nor the South is likely to challenge the accommodations made in the WTO TRIPS Agreement. In the North, the politics of change is complex; the South largely lacks expertise. But emerging economies have the political will to improve access to the world's intellectual output on behalf of their poorest citizens. At the same time, they have growing creative sectors and thick legal and political cultures capable of striking new and imaginative balances between proprietary and access interests. Because the goals of these economies are best served by partnering with least-developed countries and members of civil society interested in intellectual property issues, these nations also have an incentive to improve another type of access norms—norms of participation, fairness, and transparency in international lawmaking. These nations are, in other words, in a unique position to contribute to the reforms that are the cornerstone of the global administrative law agenda.

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  Conclusion: Balancing Wealth and Health in a Transnational Regulatory Framework

  Rochelle C. Dreyfuss and César Rodríguez-Garavito

  The preceding case studies have demonstrated how countries sought to utilize flexibilities in the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement to keep as much material as possible free of claims to ownership and to withstand bilateral and unilateral attempts to impose TRIPS-plus obligations. They have offered evidence on the ways in which procedural and substantive issues are intertwined, and how far adherence to administrative values can go in producing substantive results that are accepted as legitimate. They have also shed light on the factors that permit effective resistance in an asymmetric contestation environment. This chapter discusses five variables that appear to have influenced the outcomes in these cases: expertise; the structure of civil society; institutional competence; normative commitments; and political opportunity structures.

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  The Battle over Intellectual Property Laws and Access to Medicines in Latin America: A Primer on Global Administrative Law, Intellectual Property, and Political Contestation

  Rochelle C. Dreyfuss and César Rodríguez-Garavito

  This chapter first sets out the book's purpose, which is to examine the debates concerning aspects of intellectual property law that bear on access to medicine; that is, the measures that regulate the acquisition, recognition, and use of patent rights on pharmaceuticals and trade secrets in data concerning them, along with the conditions under which these rights give way to the interest in public access to cheaper generic drugs. The book presents the results of a comparative study on intellectual property and access to medicines in eleven Latin American countries: five from South America (Argentina, Brazil, Chile, Colombia, and Ecuador), and six from Central American (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua). The chapter then discusses the discourse of global administrative law; theories of political contestation that underlie the analysis; and the concepts of intellectual property law relevant to the medicines debate and to a history of the region. An overview of the subsequent chapters is also presented.

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  Obligation of Contract

  Richard A. Epstein

  A landmark work of more than one hundred scholars, The Heritage Guide to the Constitution is a unique line-by-line analysis explaining every clause of America's founding charter and its contemporary meaning. In this fully revised second edition, leading scholars in law, history, and public policy offer more than two hundred updated and incisive essays on every clause of the Constitution. From the stirring words of the Preamble to the Twenty-seventh Amendment, you will gain new insights into the ideas that made America, important debates that continue from our Founding, and the Constitution's true meaning for our nation.

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  Citizens of the Corporation?: Workplace Democracy in a Post-Union Era

  Cynthia Estlund

  Once upon a time, in the cauldron of economic depression and widespread labor unrest that produced the New Deal, the idea of “industrial democracy” burst into mainstream discourse and helped produce the National Labor Relations Act (NLRA). The NLRA, still the foundation of U.S. labor law, created a framework for industrial democracy through union representation and collective bargaining. Of course, unionization was not mandatory; it was an option that could be exercised by a majority of workers in a particular bargaining unit, and that employers (at least since the 1947 Taft-­Hartley amendments to the NLRA) could freely and quite aggressively oppose. And that they did. For unionized operations, with their higher wages and benefits, had to compete with nonunion operations. Globalization and deregulation gradually ramped up product market pressures, which stoked employer resistance to unionization, which in turn outstripped the reach and deterrent capacity of the aging NLRA. That, in short, is the story behind the drastic decline of union density to less than 8 percent in the private sector. It will take a monumental effort by organized labor, and a political economic sea change, to bring that figure back up to double digits. That battle is worth fighting, but it would still leave 90 percent of private sector workers without any semblance of what we once called industrial democracy. It is telling that we can barely entertain the notion of a democratic form of workplace governance today without backpedaling: we do not really mean “democracy,” of course, but only some form of collective worker “voice” or participation. We cannot quite conceive of workers as citizens of the workplace with a right of collective self-­determination, but only perhaps as “stakeholders” of firms that are governed by managers who are chosen by and accountable to the firm’s shareholders. Nor is there much currency these days to the notion that citizens in a democratic society must enjoy a measure of democracy in their economic lives. We have become accustomed to thinking of work as a domain of economic relations—​­of market forces, supply and demand, entry and exit— rather than a domain of politics. And yet perhaps there is still a case to be made for a form of workplace democracy that can meet employee needs and aspirations without provoking vehement employer resistance—​­a domesticated version of workplace democracy to supplement (and not to replace) the essential right of workers to go into opposition against their employer by forming a union. This essay explores the question of what workplace democracy could mean in the twenty-­ first century for the overwhelming majority of private sector workers that are destined to remain without union representation. It first takes up the questions of “what workers want,” and what they have by way of representation in today’s workplace. It then turns to whether and why workers still need a collective voice in the modern workplace, given the rise of employment mandates and improved workplace management practices. Finally, it suggests a role for responsible corporate citizens in supplying a measure of what workers want and need as workplace citizens (if only the law would allow them to do so).

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  Employment Rights and Workplace Conflict: A Governance Perspective

  Cynthia Estlund

  This chapter examines the role of employment law in workplace conflict resolution. It argues that employment litigation could leverage workplace conflict into more participatory structures of workplace governance and dispute resolution. Employment litigation, like collective bargaining, was launched legislatively in an era of widespread social conflict, and aimed to provide peaceful modes of workplace conflict resolution. Like collective bargaining, however, litigation is itself a catalyst for conflict, partly because it empowers employees in conflicts that employers might otherwise suppress or externalize. Employers seek to avoid both litigation and unionization by creating internal dispute resolution processes. Without union representation, however, employees are unable to monitor the fairness of those internal processes. The forms of workplace governance that are taking shape under the shadow of employment litigation could and should be molded into a fairer system of “co-regulation” in which workers participate through collective representation in the resolution of workplace disputes.

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  Will Labour Unrest Lead to More Democratic Trade Unions in China?

  Cynthia Estlund and Seth Gurgel

  China does not recognize the international labour law principle of ‘freedom of association’, nor does it recognize the right of collective bargaining as that concept is understood in international labour law—that is, the right to bargain through independent trade unions formed by workers themselves and free from outside interference. That is because China has only one lawful trade union, the All-China Federation of Trade Unions (ACFTU) and its branches, which is controlled by the Chinese Communist Party (CCP). This has been the case for many years, and there is no sign that China intends to loosen either party control of the ACFTU or the ACFTU’s monopoly on collective worker representation. Of real concern to China’ s leaders, however, is that the ACFTU has been widely seen as ‘useless’ to China’s workers, especially migrant workers in the private and foreign-invested sector, during a decade of rising labour unrest. The point was underscored by a township ACFTU official who told reporters, in the midst of the 2010 Honda strike, that workers’ efforts to secure higher wages was ‘a matter between labor and employers. It is inappropriate for the trade union to intervene’. As collective labour disputes have proliferated, however, the ACFTU has come under growing pressure from above, below, and within to reform itself and to become a more effective and genuine representative (or overseer) of China’s unruly workers. The current labour relations climate in China is reminiscent in some ways of the labour unrest of the early twentieth century in the West, out of which emerged the national framework statutes that secured workers’ rights to form unions and bargain collectively. So it may be illuminating to throw a comparative light on the current labour relations scene in China for what it might suggest about the direction of labour law reform there. Will rising labour unrest lead in China, as it did in much of the West in the early to mid-twentieth century, to the establishment of new collective labour rights? Will China move a step closer to compliance with international labour standards regarding worker representation by democratizing the official union in some manner?

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  “Domestication” of Article 35(2)(a) CISG?

  Franco Ferrari

  The papers in this volume, which are written by Nordic and international scholars, cast new light on the interrelationship between key features of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and domestic sales and contract law. The Nordic region has a special interest in this project, as 2014 marks the 25th anniversary of the ratification of the CISG in most of the Nordic countries. But, the interaction between the CISG and domestic law is not merely a Scandinavian concern. CISG Article 7 expressly requires that, in the interpretation of the CISG, "regard is to be had to its international character and to the need to promote uniformity in its application." With particular emphasis on issues relating to contract formation, as well as conformity of goods and hardship, the contributors discuss how CISG rules and principles impact on or are influenced by domestic sales and contract law, both in the Nordic region and elsewhere.

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  The Future of the Law of the Abuse of Dominance

  Eleanor M. Fox

  The laws of nations on abuse of dominance are famously diverse; more so than almost any other area of competition law. Why? This is so for three reasons: 1) Two quite different perspectives can lay claim to “sound economics”—a default presumption of the efficiency of single firm acts, and a default presumption of efficiency through contestability of dominated markets. 2) Markets are different; some are marked by intensive past statism and some are not; behavioral characteristics of firms that have grown up by wits and brawn are different from behavioral characteristics of firms that have grown and are protected by privilege and favor. 3) Especially in developing economies marked by extreme poverty and historic exclusions of masses of the people from the economic mainstream, there may be no efficiency without equity. The people demand a competition law that leans against dominance and nods towards inclusion. Amidst all of this diversity, is there a path for the future? There may be several paths, but I shall boldly suggest three guiding lights for everyone to the future of the abuse of dominance violation. 1. Go for the jugular. We must develop a category of hard core monopolization / abuse of dominance, just as we have developed the category of hard core cartels. We have tended to lump together “abusive” acts that have little potential to harm the market and acts that have great potential to harm the market long and seriously. 2. Lean in towards simplicity. We have overcomplicated the process so that only well-funded agencies can win the most important cases. Simplify rules where simplicity works. 3. Work towards transparency and understanding. For jurisdictions that believe in efficiency-only as the guide and believe that efficiency is (almost always) what dominant firm do, learn more about regimes that beg to differ. For jurisdictions that combine equity and efficiency, raise consciousness about whether a particular enforcement or rule is likely to harm consumers, face the tradeoffs and consider whether the tradeoffs are worth it. Be transparent. These three pointers light the path to the future of the abuse of dominance offense.

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  Why People Fail in the Struggle with Poverty

  Eleanor M. Fox

  To mark its 30th Anniversary, in 2013-14, CUTS International organised a series of lectures around the world, engaging eminent scholars and practitioners with the topics of its interest and work on Trade, Regulations and Governance. This Lecture Series examined whether the resources are adequate in meeting contemporary and emerging development challenges; is political will lacking and why it may be so and what are the macro-micro gaps in addressing development challenges and how they may be bridged. They were discussed in the context of the fact that the rest of this decade will experience a number of international events to shape and reshape the future direction of global development discourse. While that will be largely state-led, the content of this volume not only covered the views and concerns of non-state actors on contemporary issues in development discourse but also, and more importantly, it provides a much needed direction to strengthen the state and civil society relationship through historical evidence, and not just views.

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  A Legal Tangle of Secrets and Disclosures in Trade: Tabor v. Hoffman and Beyond

  Jeanne C. Fromer

  State courts in the United States began protecting trade secrets in the mid-nineteenth century as a matter of common law, beginning with the Supreme Judicial Court of Massachusetts’s upholding in 1837 of a contract to maintain the secrecy of a chocolate-making process against a claim that it was void for restraining trade. Later in the century, American courts began to elaborate on the basis for and extent of trade secrecy protection. In this chapter, I explore one such early case from New York, Tabor v. Hoffman, decided in 1889. A study of this case indicates that many present-day concerns about overlapping edges between trade secrecy and patent laws—and their interaction and interference with one another’s aims—were latent, if not overtly raised, when American courts were just beginning to articulate the common law right of trade secrecy. After telling Tabor’s tale, I investigate some of the longstanding interactions and tensions between trade secrecy and patent laws through the lens of the regime’s encouragements of disclosure in some ways and secrecy in others. Moreover, even though trade secrecy law is predominantly focused on secrecy, in some ways it enables disclosure. By contrast, although patent law is preoccupied with disclosure, in some ways, it permits and encourages secrecy. In all, patent law and trade secrecy together create a legal tangle of secrets and disclosures in trade. A full review of the Tabor case suggests that the innovator there was able to take advantage both of trade secrecy’s disclosures and patent law’s secrets. The court did not appreciate this possibility, instead focusing on the unfairness to the plaintiff of the defendant’s appropriation. Benjamin Tabor invented a 325-pound iron and brass pump known as “Tabor’s Rotary Pump,” which “[wa]s designed for pumping tan-bark and the liquor with it, and other thick liquids.” The pump was very successful in the marketplace. So as to mass produce the pump, Tabor made thirty-six pieces of patterns for the pump’s parts, from which the pump could be manufactured. Making these patterns for the pump correctly, according to Tabor, “required a good deal of time, study, thought, labor and money.” As per Tabor, the reason for this significant expenditure of time and money to translate the pumps into corresponding patterns is because the patterns do not match up precisely to the pump’s pieces because there are both shrinkages and expansions of the pump’s metals under different conditions of hot or cold liquid being pumped through it. Getting the patterns right, on Tabor’s account, requires a “series of experiments,” rather than simple calculations as to shrinkage and expansions. Tabor insisted that he kept these patterns secret and in his possession. Yet he admittedly gave the patterns to Frank Collingnon, a machinist, for the sole purpose that he make pump castings for Tabor. According to Tabor, without Tabor’s or Collingnon’s permission or knowledge, Francis Walz, a pattern maker, measured Tabor’s patterns to make a copy. Walz got Tabor’s patterns from Collingnon’s possession. He was able to do so due to his access to Collingnon’s working space: Walz had a shop in Collingnon’s building and Collingnon sometimes gave him permission to take other patterns. Tabor claimed that William Hoffman had paid Walz to take these patterns and then Hoffman used a copy of them to produce pumps. In Tabor’s view, Walz and Hoffman had copied his patterns to avoid the significant expenditure required to use the pumps themselves to derive corresponding patterns. Tabor professed that owing both to the shrinkages and expansions of the pump’s metal and brass castings hiding from view parts of the pump, “[a] perfect set of patterns could not be made from seeing a finished pump.”

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  Sarah Lageson, Correcting American Corrections, With Francis Cullen, David Garland, David Jacobs, and Jeremy Travis (Panelist)

  David W. Garland

  In this Roundtable, a panel of experts reflect on a Pew Center on the States Survey that found half of Americans believe there are too many prisoners in the United States. The survey also found that voters believed that one fifth of prisoners could be released without compromising public safety. In other findings, 48% agreed with reducing funding for state prisons and large majorities favored reducing prison time for low-risk, nonviolent offenders. Our Roundtable panelists, while encouraged by the implementation of this survey, were careful not to put too much positive spin on the results. Public support may be moving toward a less punitive America, but it's not certain policy will quickly follow suit.

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  Why the Death Penalty Is Disappearing

  David W. Garland

  “(1) Auto da fe (2) Beating with clubs (3) Beheading: Decapitation (4) Blowing from cannon (5) Boiling (6) Breaking on the wheel (7) Burning (8) Burying alive (9) Crucifixion (10) Decimation (11) Dichotomy (12) Dismemberment (13) Drowning (14) Exposure to wild beasts etc. (15) Flaying alive (16) Flogging: Knout (17) Garrote (18) Guillotine (19) Hanging (20) Hari kari (21) Impalement (22) Iron Maiden (23) Peine Forte et Dure (24) Poisoning (25) Pounding in mortar (26) Precipitation (27) Pressing to death (28) Rack (29) Running the gauntlet (30) Shooting (31) Stabbing (32) Stoning (33) Strangling (34) Suffocation.” This is a list of execution methods compiled by a New York State Commission in 1888. The Commission had been charged with investigating the most humane and practical methods of carrying into effect the sentence of death. The Commission, and the state of New York, would eventually introduce a new item into the historical record: the electric chair—first used in Auburn Prison on 6 August 1890. There is a reason this list is so long. Capital punishment has been practised in most known societies over the course of human history. One might say that, until quite recently, it was the historical norm, a cultural universal. But in modem liberal democracies in societies like Norway- the death penalty no longer exists. We rarely think of it, but this transformation is remarkable. The death penalty once formed an elementary particle of governmental power in every nation state. Today the practice is widely regarded as a shameful violation of human rights and is prohibited throughout most of the western world. What happened? This answer is by no means simple. There are exceptions to the Western trend—the USA being the most notable—and outside the Western world the death penalty is still alive and well, especially in the Middle East and Asia. Even in the West, the direction of historical change is not always the same. But we can roughly sketch the overall arc of change and trace the social causes that brought about this remarkable development. In the early modem period - between about 1400 and 1700 newly-emergent state authorities took up the death penalty and accorded it a central role in the project of state building. Elaborate public ceremonies, horrifying execution techniques, and ritual proclamations were so many means to this end, with the most atrocious punishments being reserved for crimes of lese majesty and challenges to the state. A crucial element of state-formation was the effort of nascent political authorities to exert a monopoly of power over territory they now claimed as their own. This historic struggle to impose sovereign rule gave a new prominence and intensity to capital punishment. Prior to the emergence of the state, the death penalty appears to have been carried out without elaborate ceremony. Discussing the late medieval evidence from Germany, Evans says ‘Illustrations of executions in the fourteenth and fifteenth centuries show them as casual and unceremonial affairs, with a handful of people standing informally around while the hangman does his work’. Referring to England, Sharpe writes that there ‘is little evidence that any elaborate ceremonial attended the execution of felons in the later middle ages’. Otterbein's ethnographic survey also suggests that pre-state societies mostly executed in secret or without fanfare. The emergence of sovereign states altered these older practices in several respects. The punishment of death became the prerogative of state authorities who asserted their monopoly over legitimate violence and prohibited traditional practices of private vendetta and vengeance. Death penalties came to be imposed and administered under the auspices of the royal courts, imparting a greater degree of rule-governed formality and legal rationality. And the execution of these penalties became more public, more elaborately ceremonial and more violent, as the new states sought to use shock-and-awe tactics to impress the populace and strike fear in the hearts of enemies. Though we sometimes describe cruel punishments as ‘medieval’, it was in fact the emergence of despotic states in the late medieval and early modem period that transformed these events into elaborate spectacles of suffering. It was not Europe's medieval lords but the absolutist rulers who replaced them that gave capital punishment its greatest cruelty, intensity, and display. By the mid-nineteenth century, in a context of increasingly well-established and rationalized states, capital punishment's main purpose had altered, so that what had once been an instrument of rule, essential to state security, became an instrument of penal policy, focused on the narrower goals of doing justice and controlling crime.