Faculty Chapters

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  Compensation as a Tort Norm

  Mark A. Geistfeld

  The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. A rigorous specification of a compensatory tort right shows otherwise. The correlative compensatory duty can be justified by the principle of liberal egalitarianism for reasons illustrated by the conception of equality articulated by Ronald Dworkin. The dutyholder is not obligated to pay compensatory damages in all cases of harm, because the exercise of reasonable care distributes risk in a manner that satisfies the compensatory right. Compensation is a defensible norm of corrective justice that can persuasively explain tort doctrine, despite the limited availability of the compensatory damages remedy.

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  The Black Male: A Dangerous Double-Minority

  Daniel S. Harawa

  In the summer of 1955, Emmett Till, was murdered after reportedly flirting with a white woman. In the winter of 2012, Trayvon Martin was murdered after being labeled a “punk” by a vigilante neighborhood watchman. Many, including Martin’s mother, have drawn comparisons between the deaths of Emmett Till and Martin. For Black males today, their deaths reveal one important fact: Black masculinity is still often perceived as threatening and dangerous in the United States. Although being male is often thought of as the quintessential majority status, when paired with the modifying identity Black, a unique set of detriments attaches. And the ways Black men have been pilloried has shifted from overt racist attacks to a more institutionalized, insidious, and subconscious form of racism. Although Black men may be equal on the books, reality has time and again proved this not to be the case. In recent years, the Black American struggle has been placed on the backburner by a ‘post-racial movement.’ But if there is something positive to glean from Martin’s tragic death, it is the fact that his death made race relevant, and catalyzed discussions concerning racial inequality and the struggles faced by Black males in America. This chapter explores how masculinity is a damning trait for the Black community. From mass incarceration, lack of education, and employment discrimination, Black men are languishing in almost every measurable achievement metric. Yet nowhere is the stark disparity between Black males and the rest more apparent than in the formation and enforcement of criminal laws. Criminal laws have been instrumental in shaping the narrative the dangerousness of Black males. Rape laws in particular have been wildly successful in casting Black masculinity in a threatening light. An important lesson for Black boys to learn, and for the U.S. to remember, is that equality in theory is much different, and often discordant, from equality in reality. Therefore, this chapter looks briefly at the history of rape laws and race, illustrating how laws impact the social construct associating Black masculinity with criminality, a construct that ultimately lead to the death of Martin.

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  The Fashion Originators’ Guild of America: Self-Help at the Edge of IP and Antitrust

  C. Scott Hemphill and Jeannie Suk

  The question of intellectual property for fashion design has attracted enormous public attention in recent years. One reason is fashion’s economic importance as a global business. Another is that fashion design presents an “edge” case for United States’ intellectual property, as fashion design lacks the robust copyright protection accorded to other types of creative activity. A third is the outlier status of the United States among countries with fully developed intellectual property regimes in withholding protection for fashion design. These features have given rise to renewed calls for protection, and active consideration of various legislative schemes to achieve that goal. The question whether to protect fashion design from copying has a storied past. Since 1914 there have been more than eighty proposals in Congress to provide protection for design. In the 1930s, as American fashion was coming into its own as a cultural force, designers worried about knockoffs. Then, as now, they lacked intellectual property protection for original fashion designs. In 1930, the Vestal Design Copy- right Bill proposed copyright protection for industrial patterns, shapes, and forms, which would have covered designers of fashion and other useful articles. The Bill was never enacted, mainly due to concerns that it was too difficult to determine whether one design infringed another. Fashion designers were discouraged by the rampant practice of design copying. Copies were often sold at a fraction of the price, even in the same stores as the originals. Although today the near-singular focus of fashion law reform is legislative reform, designers in the 1930s pursued a range of possible solutions in their attempt to stop those who reproduced their designs and undermined their profitability by selling cheaper copies. Then, as now, designers sought legislative protection. But they also pursued a regulatory solution, as part of New Deal responses to the Great Depression. They ultimately settled on a seemingly effective but controversial solution: a set of self-help measures targeting both copyists and retailers willing to merchandise knockoffs. The resulting boycott, devised by the Fashion Originators’ Guild of America (hereinafter the “Guild”), was arguably the “largest scale private intellectual property scheme ever implemented.” At its height, a staggering 4,000 new designs were protected each month. The designers’ organized efforts at self-help to create design protection eventually gave rise to antitrust lawsuits in federal and state courts, culminating in a pair of 1941 Supreme Court cases involving dresses and hats. This chapter tells the story of the Depression-era fashion designers, and the solutions they pursued to remedy the lack of intellectual property protection for their work. It describes the Guild’s formation and activities within the social, economic, and legal context of the Depression, and the fatal government scrutiny that eventually led to the Guild’s demise. Finally, it suggests some lessons as to both means and ends drawn from this story of fashion: about self-help as a private solution to a public lack on the one hand, and about intellectual property protection for design on the other.

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  Tough Times and Weak Review: The 2008 Economic Meltdown and Enforcement of Socio-Economic Rights in US State Courts

  Helen Hershkoff and Stephen Loffredo

  This chapter examines the efect of the 2008 meltdown on judicial willingness to enforce socio-economic rights in the United States. We present three short case studies examining court-based efforts to secure quality public schooling for children, to provide health care to immigrants and to protect homeowners from mortgage foreclosure. Consistent with structural features of US law, we take a localist perspective—the state courts of the US—and so fill a gap in a literature that tends to look at socio-economic rights from a nationalist and internationalist focus. The cases surveyed do not comprise a scientific ‘sample’ and they yielded uneven results, highlighting the vulnerability of socio-economic rights during an economic downturn. Nevertheless, a number of the decisions reflect surprisingly robust efforts to operationalise abstract rights using techniques of dialogue and coercion, and without triggering popular backlash or legislative resistance, notwithstanding the push toward austerity that accompanied the economic crisis. We draw four lessons. Overall, the case studies interrogate the emerging dichotomy between ‘weak’ and ‘strong’ judicial review and suggest instead a complementarity that has theoretical significance for assessing judicial legitimacy, for informing public discourse about taxing and spending, and for encouraging governmental implementation of socio-economic programmes. The case studies underscore the interdependence between socio-economic rights and classical liberal rights to equal protection and due process, as well as the importance of statutory and common-law baselines in judicial attitudes toward socio-economic claims. Finally, the case studies call attention to the countercyclical role of courts with respect to socio-economic rights. It frequently is said that courts play a countermajoritarian role in enforcing classical liberal rights against recalcitrant legislatures. In a similar move, we might say that US state courts have played a countercyclical role with respect to socio-economic rights by preventing legislators from reneging on social-welfare commitments during times of fiscal crisis and economic distress.

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  Consumer Labelling on Trial at the WTO: Misunderstanding the Behavioural Law and Economics of Consumer Information

  Robert L. Howse

  It is axiomatic that the efficiency of the market as a mechanism for the maximization of consumer preferences depends on the ability of consumers to be informed about those qualities and characteristics of products that matter in terms of the satisfaction of their preferences. Yet information itself is costly. Sellers may well have relevant information about products that they may not see it as in their interests to disclose to consumers (the problem of information asymmetry). Consumers are often concerned about characteristics of products that they could not directly evaluate or at the time of purchase, even if they were willing and able to invest time and effort in doing. Where sellers voluntarily disclose information about products, consumers may not trust their claims, except where they can be independently verified and where the making of false or misleading claims can be effectively sanctioned by legal penalties. It is thus not surprising that governments have sought to improve the functioning of consumer markets through regulating the disclosure of information about goods and services. The regulation of the labelling of consumer products is one such example. One form of such regulation is the monitoring and enforcement of claims made in voluntary labelling, prescribing what a producer must be able to prove in order to attach a given voluntary label to its product. While conforming to such regulations, including verification requirements, may be costly for sellers, those sellers whose products have characteristics that consumers desire may actually prefer regulation to non-regulation if a large enough group of consumers would not trust the label absent the role of government in verification and enforcement. Governments may also make it mandatory to disclose certain information on the label of a product. There can be several reasons for mandatory labelling. One reason is that the government is not only concerned to reduce the information costs of consumers but to influence consumer behaviour in a certain direction that is considered to be socially beneficial. Take the case of energy efficiency labelling: where consumers are enabled through such labelling to choose energy efficient products they experience a private benefit either in terms of lower energy costs and/or personal satisfaction that they are contributing to a reduction in the carbon emissions that result from the production of energy; but the reduction of those carbon emissions produces an additional social benefit in contributing to climate mitigation (assuming that the social cost of emissions has not already been internalized in the pricing of the energy). Without government intervention information may well be undersupplied, since consumers’ willingness to pay for the information will be based only on the private benefit. Another reason for mandatory labelling is that individual firms may be reluctant to invest in labelling if they do not have assurance that other firms will follow suit: the evidence is that consumers are much more likely to respond to labelling if it is highly visible and widespread in the product category in question. Empirical evidence suggests that one of the strongest determinants of whether labelling has a significant impact on consumer behaviour is the degree of government involvement, with an especially high level of effectiveness where the government mandates the use of the label. These results are not surprising: where only a few of the products in a category are labelled consumers will face higher search costs in identifying those products, finding retail outlets at which they are sold, etc. Consumers may not invest information in the first place in understanding the label, the claim it represents, and the likelihood that the representations are truthful and accurate if the label is not widely available and does not apply to an attractive selection of products. Of course government intervention is not the only possible response here: collective action by all or most firms in an industry is an alternative, and does sometimes occur. This last concern relates to a final consideration. Under voluntary labelling with government monitoring and certification, firms whose products have attributes that consumers value positively pay the cost of labelling (even if they do not pay the costs of the monitoring and certification). Firms selling products that do not have these attributes have an incentive not to label the product as not possessing the attributes that consumers’ desire. They gain by not having to pay label-ling costs as well as from the possibility that in the absence of a label some consumers will wrongly assume that the product has the positive characteristics in question and thus purchase it, whereas they would not if fully informed. Mandatory disclosure, which imposes in principle equal costs on the sellers of products that have and do not have the attributes desired by large groups of consumers, can remove the market distortion induced by imposing the cost of information on the sellers of the more desired product, in the presence of information asymmetries.

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  Towards an Equitable Integration of Monetary and Financial Matters, Trade and Sustainable Development

  Robert L. Howse

  In Section III of the Millennium Declaration entitled ‘Development and Poverty Reduction’ United Nations (UN) member states committed themselves ‘to create an environment—at the national and global levels alike—which is conducive to development and to the elimination of poverty’. This depends on ‘good governance within each country’ and on ‘good governance at the international level, and on transparency in the financial, monetary and trading systems’. Hence, they ‘are committed to an open, equitable, rule-based, predictable and non-discriminatory multi- lateral trading and financial system’. In 2002 the Monterrey Consensus also reaffirmed the UN members’ commitment to trade liberalisation, but noted that developing countries need ‘appropriate institutions and policies’ to benefit fully from trade. The concept of equity in international trade and financial rules and institutions has not been explicitly defined and is the subject of debate and speculation among philosophers and political theorists. At the same time a notion of equity has played an important role in the settlement of disputes in public international law, especially with regard to allocation of natural resources. Thomas Cottier suggests, ‘Achieving broad goals of global welfare and equity is not a matter of international charity, but of common and shared interests in the light of the “ticking time bombs” of excessive population, mass migration, poverty and destitution facing many parts of the globe.’ Economists are often sceptical as to whether the trade and financial systems should be understood at all in terms of justice rather than as instruments of economic policy coordination. Nevertheless, it will be observed that the actual rules often do depend, explicitly or implicitly, on a concept of fairness. For instance, one of the rules that will be discussed in this chapter, contained in Article IV of the International Monetary Fund (IMF) Articles of Agreement, required that IMF Members do not ‘manipulate exchange rates or the international monetary system in order to prevent effective balance of payments (BOP) adjustment or to gain an unfair competitive advantage over other members’ (emphasis added). In the trading system, the WTO rules on subsidies, including fiscal measures such as tax incentives, suppose a conception of fair competition; as the WTO Appellate Body (AB) noted in one case, there are situations where market based benchmarks for fairness will be inapplicable given the pervasive interconnection of public policies and market structures. The concept of equity is then inescapable in the interpretation and application of the law of international trade and financial systems. The question is whether there are legal and policy sources that allow us to give a definite meaning to this concept as we apply it to particular rules and disputes in the trade and financial systems. Such sources are more various and more instructive than one might have originally imagined. This approach, pursued in this chapter, can usefully be compared to that of Thomas Pogge, who seeks to judge (and condemn) the existing system of rules in international economic law against an abstract conception of global justice, emphasising the priority of eliminating poverty and, therefore, a counterfactual of an ideal system of international economic law that would adequately reflect that principle. Rather, this chapter begins without assuming the manifest injustice of the existing norms of international economic law, and assumes instead that we can help achieve more equitable outcomes through appreciating better the elements of equity implicit or sometimes explicit in those rules, and interpreting and applying them together with or in light of other norms of international law, such as those entrenched in the UN human rights covenants, for example. The approach of beginning with the possible concrete applications of concepts of equity to specific disputes or challenges and problems in international economic law, and with the jurisprudential acquis, rather than with philosophical dogma and abstraction, is in many ways akin to that of Cottier. The aim is not radical critique with a view to comprehensive reconstruction, but a careful consideration of how relevant conceptions of equity have been sidelined or distorted in the way the existing rules have been applied and interpreted within and across international economic and other regimes under conditions of fragmentation. The end point might well be characterised as realistic utopia or more perfect expression or elaboration of the ideals of equity already reflected in a range of positive international legal norms, through the interpretative transcendence of ‘self-contained regimes’.

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  Why Was the Democratic Transition in South Africa Viable?

  Robert P. Inman and Daniel Rubinfeld L.

  On October 11, 1996, the National Parliament of the new Republic of South Africa unanimously approved a new democratic constitution. The constitution emerged from over six years of negotiations between South Africa’s once ruling white elite represented by the National Party (NP) led by F. W. de Klerk and the long oppressed Black and Asian majorities represented by the African National Congress (ANC) led by Nelson Mandela.

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  The Delta-Northwest Merger: Consumer Benefits from Airline Network Effects

  Mark Israel, Bryan Keating, Daniel L. Rubinfeld, and Robert D. Willig

  On April 14, 2008, Delta Air Lines Inc. and Northwest Airlines Corp. announced a merger, which would combine two of the six remaining large “legacy” airlines and create what was then the world’s largest airline. The move to consolidate was no surprise, in view of the well-documented financial struggles of Delta, Northwest, and the U.S. airline industry as a whole. Between 2002 and 2005, both Delta and Northwest had filed for bankruptcy protection, as had United Air Lines Inc. (United) and U.S. Airways. Between 2001 and 2008, the domestic airline industry reported negative net income in every year and lost more than $29 million in total, with the number of airplanes and seats declining on average by 1.7 percent and 1.4 percent, respectively, each year. In the second half of the decade, aviation fuel costs (the single greatest component of the short-run variable cost of operating an airline) increased sharply, with the largest increase (more than 100 percent) occurring between February 2007 and July 2008, when prices rose from $1.74 per gallon to $3.69 per gallon. As of 2008, Delta and Northwest were the third and sixth largest domestic carriers in the United States. Delta maintained hubs in Atlanta, Cincinnati, and Salt Lake City and served 149 domestic destinations and 136 international destinations. In total, Delta carried 47 million passengers in the 12 months ending September 2008, generating $10 billion in revenue. Northwest maintained hubs in Minneapolis, Detroit, and Memphis and served 132 domestic destinations and 48 international destinations. In total, Northwest carried 29 million passengers in the 12 months ending September 2008, accounting for $7 billion in revenue. The merger was an appealing one from the perspectives of Delta and Northwest, each of which hoped to improve its financial performance. The parties projected that the merger would generate up to $1 billion in annual cost synergies and substantial consumer benefits due to the positive network effects that would arise from the combination of their complementary networks. The combined carrier would serve 390 destination worldwide with a mainline fleet of nearly 800 aircraft. More important, Delta and Northwest’s networks were largely complementary. As shown in Figure 18-1, the combined carrier’s network covers most of the United States. Delta’s network was particularly strong domestically in the South, Mountain West, and Northeast and internationally on flights to and from Europe and Latin America. Northwest’s network was focused domestically on the Midwest and internationally on flights to and from Canada and Asia. Prior to the merger, Delta and Northwest had been operating a domestic codeshare arrangement (along with Continental Airlines), and both carriers were members of the SkyTeam alliance, which also included Alitalia, Czech Airlines, and KLM Royal Dutch Airlines. Despite the largely complementary nature of the networks of the two airlines, the Department of Justice’s Antitrust Division (DOJ) raised a number of potentially significant competitive concerns with regard to the transaction. Although one might speculate about different theories of harm based on different market definitions, both the merging parties and DOJ analyzed the merger in the context of markets for air travel between specific origins and destinations. The theories of harms focused on the possible weakening or loss of competition on those routes where there were overlaps between Delta and Northwest before the proposed merger. Delta (DL) and Northwest (NW) overlapped with nonstop service on 12 (nondirectional) domestic “city-pairs”: a rout from an airport in one city (the “origin”) to an airport in another (the “destination”). Table 18-1 shows that of these 12 overlaps, no other carriers flew nonstop on four routes, one other carrier flew nonstop on three routes, and two other carriers flew nonstop on three routes. Combined, the 12 nonstop overlaps annually accounted for 6.6 million passengers and $1.1 billion in revenue for the parties. In addition, Delta and Northwest both offered connecting service (with no more than two other competitors) on 702 city-pairs that accounted for 7.8 million passengers and $1.8 billion in revenue. Of the connecting overlaps, 478 (that accounted for 409 million passengers) had either no or one other competitor. These connecting overlap routes were concentrated primarily in the Southeast, connecting over Delta’s hub in Atlanta and Northwest’s hub in Memphis.

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  The Majoritarian Threat to Democracy: Constitutional Courts and the Democratic Pact

  Samuel Issacharoff

  Democracy at its core assumes two central principles: a right of participation by the citizenry and a fair aggregation mechanism such that the majority of those participants will ultimately prevail on contested issues of social policy. Each of the principles is subject to differentiation and contestation. Athens enshrined the concept of democracy with a definition of citizenship so narrow as to offend modern sensibilities. Athens also employed a lottery as a primary aggregation mechanism. While a lottery may be statistically likely to reflect the preferences of a cross-section of the citizenry, the system rejected the concept of formal proportionality among political parties that has become the dominant contemporary model internationally. Yet, the right of the majority to prevail in a contest among the citizenry cannot provide any guarantee of democratic legitimacy. If the terms of the contest are winner-takes-all, it does not matter that the prevailing side conclusively won the support of 51 percent of the voting populace. Without limitations on the scope of ensuing power, and without the possibility of renewed contestation, the claims of the victorious majority to compel the submission of the minority is without any moral force. The tragic “one man, one vote, one time” pattern of postcolonial Africa is a painful reminder of elections that served only as a referendum on who would wear the uniforms of state in consolidating autocratic power over historic enemies. Unfortunately, it turns out that a stable democracy requires that which it cannot offer in its opening stages. The majority’s ability to rule justly must offer the prospect of its being subject to removal if political alliances shift. Correspondingly, democracy must offer to the vanquished of today a chance of at least forming part of the victorious coalition of tomorrow. Democracy requires a credible commitment that elections not only usher in the holders of state power but may be the vehicle of their departure as well. The problem is that no democracy can offer such a credible commitment in its inaugural stages. Further, in countries marked by well-trod lines of violent conflict, especially those emerging from an authoritarian past that has robbed them of organically developed intermediary institutions of civil society, there is no reason to believe that anyone or any group would ever cede power and arms to representatives of its enemies. Over time, various strategies have emerged to address the problem of democratic commitment in divided societies. Following World War II, the dominant approaches were twofold. First, consociational divisions of power among the contending ethnic groups served to apportion political power and, hopefully, compel stable coalitions. Consociational models facilitate governance in the absence of a cohesive majority party and protect groups against abuses of power by pluralities or majoritarian coalitions built along historic fault lines. The key to consociationalism was to limit the capacity of the state to act violently against one or another of the social factions. Having all parties holding partial vetoes on state conduct limited the capacity of the state to act and, thereby, restrained state authority from using military and police powers against vulnerable groups. The second was to create a universal command of human rights that would in turn constrain the scope of governmental power. The human rights command was largely aspirational, despite its incorporation into treaties, but served to reinforce the demand that the state not turn its arsenal on the civilian population. Neither strategy brought about stable and tolerant rule in divided societies. The first, in its more formal commands in countries such as Lebanon or even Sri Lanka, failed to constrain renewed civil wars. The formal division of power led to frustration of groups whose political ambitions and abilities expanded over time, yielding a cauldron of discontent that the hardened lines of consociational rule had difficulty in containing. Meanwhile, the aspirational objectives of the latter proved insufficient to control governmental excesses as the history of the late twentieth century unfortunately demonstrated with depressing regularity. Over the past twenty years, a new wave of democracies has taken hold, most notably in the wake of the demise of the Soviet Union. Almost all the countries of the former Soviet bloc have deep divisions across the cleavages of ethnicity, language, or religion, and in many cases more than one. In all such cases, the critical issue of democratic stabilization is posed anew. While the newly democratizing countries are wealthier than the wave of postcolonial democracies right after World War II, they still share many of the disabilities that would predict unsuccessful efforts to stabilize rule across hardened social divisions. In this chapter, I want to suggest that there is continuity in the challenges faced by new democracies, but a significant change in the strategies that are of moment today. The continuity comes with the critical issue facing new democracies: the need for a credible constraint on the exercise of majoritarian power. The change comes in the form of institutional design, with reliance on consociational power sharing being replaced by a reliance on constitutional constraints on democratic actions that in turn are enforced by constitutional courts created for this express purpose.

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  Epilogue: Bush v. Gore and the Constitutional Right to Vote

  Samuel Issacharoff and Richard H. Pildes

  The purely partisan perspective on Bush v. Gore focuses on the ongoing, contested dimensions of a close election and the controversial role of the Supreme Court in declaring game over. On this telling, the Bush v. Gore decision was a denial of the right of every vote to be counted amid an institutional power grab for the Republican Party. From this point of view, the main legacy of that dramatic moment in constitutional and political history is that everything possible should be done to allow postelection validation of all votes, including the expanding role for provisional ballots. The reform upshot was the Help America Vote Act (HAVA), a complicated legislative gambit that tried to rationalize state voter registration records at the state level, created a generally useless Electoral Assistance Commission, and enshrined a system of post-election challenges to provisional ballots that, while perhaps better than the other available options, is also a litigation nightmare just waiting to happen. Perhaps the passage of time will allow an alternative story, one in which the postelection partisan scramble was even more important as a window into the much more pervasive and structural dysfunctionalities of the American electoral system. This alternative account begins at the top with a winner-take-all Electoral College system that created the cliff effect necessary for Florida 2000—the ability of a few hundred actual votes to determine whether Florida’s twenty-five Electoral College votes would be entirely captured by George Bush or Al Gore. From there, the story of electoral dysfunction would cast attention on how control of federal elections is still, more than 200 years since the Constitution’s creation, overwhelmingly left in the hands of the states and, ultimately, in those of local county administrators. Voting lists are kept in local polling books; volunteers (mostly female and mostly senior, even on a more probing reexamination) staff election administration generally with inadequate training and little more than episodic engagement with complicated election rules. This account would add in the local administrators who purchase voting machines from friendly vendors and devise ballots based on whimsical expectations of voter capabilities. And the list would run to partisan control of the machinery of elections. Here we would engage the devotion of major electoral resources to combat illusory claims of in-person fraud by constricting early voting, adding identification requirements, and generally clogging the machinery in ways that invite a takeover by Starbucks or Cheesecake Factory, or any competent market-tested firm able to satisfy basic consumer needs. Under this alternative viewpoint, the Bush v. Gore decision may have been partial, incomplete, hesitating, right on substance but wrong on remedy—the list is by no means exhausted. Yet it may also have been the opening wedge in defining a broader claim of citizen expectation that voting should be accessible and fair. Any legal requirement of basic fairness would place a bull’s eye on the structural guarantees of dysfunctionality of the electoral system, starting with its partisan overseers and continuing right on through its localized administrators. On this more far-reaching reading, the Supreme Court’s efforts to find a guiding legal principle for constitutional oversight might provide a foothold for challenging some of the more bizarre excesses of our electoral system. A single case study of Ohio provides evidence whether this attempt to rescue a broader constitutional commitment to the right to vote is simply Panglossian, or whether the moment has finally come to integrate a conception of proper democratic functioning into the Constitution. We look to Ohio because the past three presidential elections have either turned on the outcome in Ohio or, perhaps more significant, because the past three presidential campaigns were waged on the presumption that Ohio could be the touchstone of the entire election.

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  Foreword

  Benedict Kingsbury and Richard B. Stewart

  In most critical iconographies of iniquities of contemporary global regulatory governance, a prominent place is accorded to the complex regime of intellectual property law and its effects on universal affordable access to, and development of, essential medicines. The rules and supervisory institutions of the Trade-Related aspects of Intellectual Property Agreement of 1994 (TRIPS), and the various “TRIPS plus” rules in a congeries of different bilateral and regional or plurilateral agreements including the Central American Free Trade Agreement (CAFTA), the Anti-Counterfeiting Trade Agreement (ACTA) and the draft Trans-Pacific Partnership agreement (TPP), are explained in a familiar political account. In that narrative, the powerful governments of the North, themselves highly responsive to their major innovation creative industries including pharmaceutical companies, have by dividing and dragooning brought developing country governments to make agreements which increase local prices of pharmaceutical products without incentivizing local production capacity or investment in combatting major diseases other than those occurring in rich countries. The case studies and analysis in this highly original and indeed pathbreaking book do not so much challenge as look behind this overarching narrative to document, within a common conceptual framework, a highly variegated experience among eleven Latin American democracies with similar overall trajectories of movement from essentially no patent protection of pharmaceutical products in the 1980s to becoming, over the next two decades, compliant with TRIPS or TRIPS plus. These countries have varied not only in what they have sought and been able to achieve in relevant international negotiations and institutions, but also in very specific but significant features of the implementation and application of international rules in their national law and institutions (such as patent offices) allowing for greater or lesser access to medicines. As the country studies show, pro-access national intellectual property practices do not necessarily correlate with lower prices, let alone better health outcomes—much more is involved in achieving health improvements—but the variations and the explanatory factors presented in the rich and fine-grained studies by the contributors are of great interest and importance.

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  Human Dignity and Proportionality: Deontic Pluralism in Balancing

  Mattias Kumm and Alec D. Walen

  The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. It is the central structural feature of a rights-based practice of justification. Notwithstanding its widespread acceptance, a number of challenges have been brought forward against it. Perhaps one of the most serious is the claim that an understanding of rights that makes the existence of a definitive right dependant on applying a proportionality test undermines the very idea of rights.4 In the liberal tradition, rights are widely imagined as “trumps” over competing considerations of policy. They are claimed to have priority over “the good” in some strong sense. They are described as “firewalls” providing strong protections against demands made by the political community. And they are thought to be grounded in human dignity, which in turn is held to be inviolable.9 Even though there are interesting and significant differences between conceptions of rights in the liberal tradition, they generally share the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy. Circumstantial all-things-considered judgments regarding what serves the general welfare are generally thought to present insufficient grounds to justify infringements of rights. If human dignity is inviolable, and rights are grounded in human dignity, must they not provide for very strong, perhaps even absolute, constraints on what governments may impose? Can a human and constitutional rights practice that puts proportionality analysis front and centre capture this core deontological feature of rights grounded in human dignity? Is not the proportionality test a misguided and dangerous invitation to balance away human dignity? In an earlier article one of us argued that any plausible structure of rights must be able to accommodate core anti-perfectionist, anti-collectivist, and anti-consequentialist ideas underlying the liberal democratic rights tradition. Whereas proportionality analysis could adequately accommodate anti-perfectionist commitments (by screening out, as illegitimate ends, perfectionist purposes in the first prong of the proportionality test) and anti-collectivist commitments (by weighing correctly the relevant considerations when conducting the balancing test), there were certain structural features of political morality that could not be adequately captured by the proportionality framework. More specifically, there existed a distinct class of cases, characteristically involving the protection of human dignity, where even measures meeting the proportionality test could still constitute a violation of rights. The idea of human dignity, it was argued, was connected to deontological constraints in a way that the proportionality test could not adequately take into account. The task was to distinguish those types of cases from ordinary cases to which proportionality analysis properly applied. If that distinction was not made, there was indeed a danger that human dignity would be balanced away. Because this is a position that embraces the proportionality test generally, but insists on carving out a distinct category of cases involving human dignity in which rights provide stronger, more categorical protection, this position might be called human dignity exceptionalism. Others have since then either endorsed or criticized this position. We argue here that human dignity exceptionalism is false. Whereas it was right to insist that the structure of political morality is not automatically captured by the four prongs of the proportionality test—at least not if the balancing prong is used in a fundamentally consequentialist way—the proportionality test and the idea of balancing in particular is flexible enough to allow for the structural complexities of political morality to be taken into account. The article was misguided in carving out a relatively narrow set of issues and limiting the idea of deontological constraints to them. Here we will illustrate how constraints that are not merely consequentialist operate in very different ways and inform the reasoning that takes place within the balancing test across a much wider range of cases. Deontology is ubiquitous, and there is nothing in the idea of balancing that precludes taking it into account. Indeed, balancing properly understood requires it to be taken into account.

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  The Practice of Promise and Contract

  Liam B. Murphy

  This chapter defends an instrumental justification of contract law. The reason to have contract law is to make possible socially beneficial transactions that otherwise would not occur. The chapter thus rejects corrective justice accounts of contract (whether grounded in promisees’ expectation or reliance interests) and the idea that the point of contract law is to enforce the moral obligations of promisors. A strong connection between contract and promise is nonetheless defended. The basic role of contract law is to support the practice of the making and keeping of promises and agreements, and encourage its use. This makes performance of something just as good the natural remedy. The chapter argues that much economic analysis of contract remedies is myopic in that it either assumes what has to be justified (that promisees are entitled to the value of performance) or unjustifiably focuses on individual transactions, rather than the practice as a whole.

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  A Golden Straitjacket? The Struggle over Patents and Access to Medicines in Colombia

  César Rodríguez-Garavito

  This chapter discusses the history of patent regulation in Colombia. It traces the evolution of patent protection from its beginnings in the Andean Pact norms of 1991, to the changes introduced by free trade agreements with the United States between 2005 and 2012, and ending with the implementation phase of this treaty. It argues that the changes in patent law embody the combined strengths of two sets of actors—governmental and nongovernmental, national and international—that defend distinct visions of property and the right to health.

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  The Judicialization of Health Care: Symptoms, Diagnosis, and Prescriptions

  César Rodríguez-Garavito

  Middle-income countries (MICs) are, by definition, in a gray zone. As with middle classes within domestic societies, they find themselves in an intermediate ground between precariousness and opulence. Their essence is one of contrasts, as shown by the disparate geography of their large cities, from São Paulo and Delhi to Jakarta and Johannesburg. Economic contrasts go hand in hand with institutional contrasts. The institutions of MICs are hybrids: in them coexist elements of weakness and strength, incapacity and capacity. On some occasions, there is disparity between different institutions - for example, between an authoritarian government captured by private interests, on the one hand, and an independent judiciary that protects citizens’ rights, on the other. In others, the asymmetry is found within a single institution – for example, a tax-collecting agency or police force that is efficient in the cities, but absent or incapable of fulfilling its mission in the rest of the country. This double economic and institutional contrast makes MICs particularly fertile ground for the judicialization of conflicts regarding socioeconomic rights (SERs). Among the economic variables that favor judicialization, income level and distribution stand out. By definition, MICs have more resources than low-income countries (LICs), but tend to have a distribution of wealth just as or more unequal than the latter. The aforementioned institutional asymmetry increases the probability that these demands turn into litigation. This is because governmental agencies are not sufficiently strong to adequately and regularly resolve citizen petitions, but (in contrast to what happens in LICs) do tend to be sufficiently strong and accountable to fulfil judicial orders. When courts are independent and have adequate institutional capacity, litigation offers a particularly promising route to demand the fulfillment of SERs. This combination of factors is particularly notable in the more well-off MICs, that is, those referred to as upper-MICs. To avoid the risk of overgeneralization associated with the use of the extremely broad MIC category, my arguments in this chapter are confined specifically to those countries with higher incomes within that category and a democratic political system committed to the rule of law. I have in mind, above all, those democratic upper middle-income countries (DUMICs) in which courts have been particularly active in the protection of SERs, such as South Africa, India, Brazil, Colombia, Argentina, and Costa Rica. To empirically support my analysis, I focus on the right to health, which is the most litigated in these countries. Table 12.1 gives a general idea of the level of litigation regarding health in these countries. As shown in the table, Colombia is, by far, the most prolific country in health litigation. Therefore, it represents an extreme case that allows us to see more clearly, as though under a magnifying glass, the causes and effects of the intervention of courts in the distribution of resources in DUMICs. With this methodological logic, in this chapter I focus on the analysis of the evidence regarding Colombia. The chapter has two main goals. First, from an analytic point of view, I seek to examine how and why conflicts over the right to health have arrived en masse to Colombian courts and tribunals. Put in terms of research questions, I explore the following puzzles: What has been the magnitude of these constitutional claims regarding health? Who goes to court and what do they request? Why is Colombia the country with the largest amount of legal cases on the topic? What has been the response of judges? What impact have their decisions had? And, crucially, what does the Colombian story tell us about the factors underlying the judicialization of health in DUMICs at large? Second, from a prescriptive point of view, I aim to use the findings on Colombia to tackle questions of institutional design and practice that have sparked much public debate and numerous regulatory reform proposals in DUMICs. Who should resolve the disputes on the right to health (and SERs in general), so that the solutions are at the same time efficient and comply with constitutional norms and international treaties on SERs? What administrative and legislative reforms can reduce the volume of health litigation? In what cases should courts intervene? How should they intervene? What mechanisms of institutional dialogue between the judiciary, on one hand, and the other branches of state power and relevant sectors of civil society, on the other, can maximize transparency, citizen participation, and the protection of the right to health and SERs at large? To tackle these questions, I divide the article into three sections. I begin by exploring, in a medical manner, the symptoms of the phenomenon of judicialization of health. I combine original and secondary data to delineate the evolution of constitutional litigation on health in Colombia. Continuing with the medical analogy, I then offer a diagnostic of the situation, that is, an analysis of the causes and effects of the massive use of the courts in health disputes. I conclude the chapter and the medical parallel with a prescription section, in which I delineate administrative and judicial approaches that, while preserving a key role for courts, avoid the inequities and inefficiencies of the indiscriminate judicialization of health, and promote citizen participation in complex decisions about the health care system. My argument is twofold. First, with respect to the diagnosis, I maintain that the judicialization process stems from a combination of factors that, albeit particularly marked in Colombia, are common to other DUMICs, that is, deep and persistent failures of the health system; a particularly accessible and proactive judiciary in the protection of SERs; and civil society actors that have gone to the courts en masse to resolve conflicts regarding the right to health. With respect to the impact of this type of case, I maintain that although it has offered an indispensable escape valve for the claims stemming from the profound failures of the health system, and has been the most efficient mechanism for protection of the right to health, it has also had counterproductive effects. In order to theorize and empirically document the positive and the negative consequences of judicialization of health in Colombia and DUMICs at large, I present a typology of effects of rulings on SERs. Second, in relation to institutional and jurisprudential reforms, I maintain that the most promising approach is one that promotes public deliberation and dialogue among the courts, the executive, and the legislature about the complex decisions related with the health care system. This approach combines insights from the fields of public health and public policy, and developments in constitutional theory and adjudication that support a move to “dialogic judicial activism” on SERs, which focuses on structural remedies as opposed to case-by-case litigation.

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  The Practice of Equality

  Samuel Scheffler

  This Chapter discusses two views of equality: the distributive view and the relational view. According to the first view, equality is an essentially distributive value. We can directly assess distributions as being more or less egalitarian, and justice requires that we strive to achieve fully egalitarian distributions, except insofar as other values forbid it. According to the relational view, equality is an ideal governing certain kinds of interpersonal relationships. It plays a central role in political philosophy because justice requires the establishment of a society of equals, a society whose members relate to one another on a footing of equality. This chapter develops the relational view in greater detail and argues that it is not, contrary to what some have suggested, merely a variant of the distributive view.

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  The Need for a Federal Statutory Approach to the Recognition and Enforcement of Foreign Country Judgments

  Linda J. Silberman

  The topic of my panel at the 2013 Sokol Colloquium—of which this chapter is a product—was a discussion of “common law” versus statutory approaches to enforcing foreign country judgments. One will not be surprised that I, as one of the Reporters for the American Law Institute project—Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute—not only favor a statutory approach but also believe that a federal statute is vastly superior to a state statute, even when the state statute is a Uniform Act. Quite apart from the specific ALI proposal for a federal statute, I strongly believe that the law on recognition and enforcement of foreign country judgments should be that of a uniform national standard. That objective can only be accomplished with a federal statute; neither a common law approach nor promulgation of a Uniform Act can achieve that goal.

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  United States Supreme Court Hague Abduction Decisions: Developing a Global Jurisprudence

  Linda J. Silberman

  Leading authorities explore the successes and shortcomings of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the thirty years that have elapsed since that Convention entered into force. Special attention is given to national legislation implementing the Convention and to judicial practice applying Convention and legislative provisions. The Convention continues to attract ratifications, and lawyers from many countries will find the thoughtful articles contained in this volume helpful in understanding comparative approaches to this increasingly important domain of international legal cooperation.

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  Legal but Unacceptable: Pallin v. Singer and Physician Patenting Norms

  Katherine J. Strandburg

  In intellectual property discourse, the edge tends to be defined by disputes between producers and consumers or between upstream and downstream innovators. This chapter tells a different kind of story, about the edge between the patent-based innovation system and a user innovator community governed by norms of reputation and sharing. In this story, the user innovator community is the medical profession. In the mid-1990s, at the height of a period of expansive patent rights, Dr. Samuel Pallin patented an improvement to cataract surgery procedure and sought to license it to other eye surgeons in return for royalty payments. One of those eye surgeons was Dr. Jack Singer. Singer responded to the royalty demand not only by refusing to pay it, but by spearheading what eventually became a political movement against medical procedure patents. Beginning in 1994, physicians lobbied Congress to redraw the line around patentable subject matter so as to exclude medical procedures. Though they did not achieve that objective, they succeeded in convincing Congress to pass 35 U.S.C. § 287(c) in 1997. § 287(c) eliminates remedies against physicians for infringement of many medical procedure patent claims. Though physician inventors routinely patent medical devices, opposition to patents on medical procedures and medical diagnostic methods holds strong. This chapter examines that opposition through the lens of user innovation. User innovators invent and improve technologies for their own use, rather than to license or sell them to others. Examples of user innovations include improved manufacturing processes, certain types of software, sports equipment, scientific research tools, and many business methods and service improvements. User innovation succeeds because it depend on users’ superior, and “sticky,” knowledge of unmet needs and the ways that technologies perform on the ground. Because of their shared interests, users of a particular type of technology often form communities in which the norm is to share information about problems with current technology, suggestions for improvements, innovations they have made, and critiques of those innovations. Patenting is generally eschewed by these communities and innovation is rewarded with reputation. Physicians who devise new medical procedures, diagnostic tests, medical devices, surgical instruments, and the like are also user innovators. This chapter views the story of Pallin v. Singer and the physician movement that led to the passage of § 287(c) as a narrative of user innovator community norms.

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  Monitoring, Datafication and Consent: Legal Approaches to Privacy in the Big Data Context

  Katherine J. Strandburg

  Knowledge is power. ‘Big data’ has great potential to benefit society. At the same time, its availability creates significant potential for mistaken, misguided, or malevolent uses of personal information. The conundrum for law is to provide space for big data to fulfill its potential for societal benefit, while protecting citizens adequately from related individual and social harms. Current privacy law evolved to address different concerns and must be adapted to confront big data’s challenges. This chapter addresses only one aspect of privacy law: the regulation of private sector acquisition, aggregation, and transfer of personal information. It provides an overview and taxonomy of current law, highlighting the mismatch between current law and the big data context, with the goal of informing the debate about how to bring big data practice and privacy regulation into optimal harmony. Part I briefly describes how privacy regulation in the United States has evolved in response to a changing technological and social milieu. Part II introduces a taxonomy of privacy laws relating to data acquisition, based on the following features: (1) whether the law provides a rule- or a fact-based standard; (2) whether the law is substantive or procedural, in a sense defined below; and (3) which mode(s) of data acquisition are covered by the law. It also argues that the recording, aggregation, and organization of information into a form that can be used for data mining, here dubbed ‘datafication’, has distinct privacy implications that often go unrecognized by current law. Part III provides a selective overview of relevant privacy laws in light of that taxonomy. Section A discusses the most standards-like legal regimes, such as the privacy torts, for which determining liability generally involves a fact-specific analysis of the behavior of both data subjects and those who acquire or transfer the data (‘data handlers’). Section B discusses the Federal Trade Commission’s (FTC’s) ‘unfair and deceptive trade practices’ standard, which depends on a fact-specific inquiry into the behavior of data handlers, but makes general assumptions about data subjects. Section C discusses rule-like regimes, such as the Privacy Rule of the Health Insurance Portability and Accountability Act4 (HIPAA Rule). Part IV points out some particular features of the mismatch between current law’s conceptualization of the issues and the big data context, using the taxonomy developed in Part II as an aid to the analysis. It then makes several suggestions about how to devise a better fit.

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  The Rare Disease Clinical Research Network as a Nested Commons

  Katherine J. Strandburg, Brett M. Frischmann, and Can Cui

  Information sharing, collaboration, and community building among researchers, doctors, and patients are critical to rare disease research. It is very difficult to do clinical research on rare diseases; rareness means small numbers of patients, who usually are dispersed among geographically scattered medical centers. This chapter reports on a case study of the Rare Disease Clinical Research Network (RDCRN)’s Urea Cycle Disorders Consortium (UCDC) that employed the knowledge commons framework described in Chapter 1 of this volume. This case study is a step toward understanding whether and in what ways the RDCRN contributes to progress in combating rare diseases. Government funding for research is limited, and it is important to try to understand how various ways of structuring that funding influence the outcomes. Observations from close study of the UCDC generate hypotheses about the RDCRN approach that can be tested in comparative studies of other consortia.

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  Property Rights, Commodification, and Land Disputes in Contemporary Socialist Asia

  Frank K. Upham

  China is in its fourth decade of rapid economic growth. Vietnam is close behind. With this growth has come massive social change that, whatever its ultimate net benefits, has created legions of losers: individuals, groups, and communities that have had the framework of their lives destroyed, in many instances through the destruction of their rights in land and homes. As with such people throughout history, the losers in Vietnam and China have not always gone quietly; on the contrary, loss of land, whether farmland taken for expanding cities or urban apartments taken for commercial development, has become both countries’ greatest source of social conflict. The reason is simple: more than perhaps any other social good, property rights, and especially property rights in land, are radically multidimensional and cannot be easily commoditized. With few exceptions, land not only has economic value—what is seen by the expanding cities and urban developers—but also provides the basis for social relations and in many ways constitutes those relationships through the creation of individual, group, and community identities. Furthermore, when land must be transferred or transformed to allow economic growth, the process implicates not only the mechanism of market exchange, but also the social, legal, and bureaucratic institutions that structure political power. This chapter tries to deepen our understanding of these contemporary events in two ways. In the second section, I put them into historical and comparative perspective by demonstrating that they repeat patterns of conflict that date at least to the English Enclosure Movement of the fifteenth century and have recurred in periods of rapid economic growth ever since. In the third section, I use property theory to deepen our insight into the nature and persistence of such disputes. Although contests over possession and control of land implicate economic interests, interpreting them primarily through an economic lens is dangerously incomplete. The result of doing so is likely not only to fall short of the economists’ goal of market efficiency, but also to engender and at times institutionalize continuing conflict. In the concluding section, I turn to the disputes described in this volume and attempt to place them in the context of evolving legal systems by analyzing the efforts of the Vietnamese and Chinese governments to respond to the widening social conflict arising from land dislocation. I argue that bureaucratic and judicial responses must address not only the financial impact of land transfers, but also the normative and behavioral changes that are at least as painful and may eventually negate the economic benefits that were the goals of the policy changes that set the process in motion. While adequate compensation may be a necessary element of any effective response, a legitimate process that is flexible enough to address the diffuse non-pecuniary effects of dislocation may be essential to the long-term social harmony that is the rhetorical goal of both governments.

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  Citizenship and Dignity

  Jeremy Waldron

  Theories of dignity have to navigate between two conceptions: the egalitarian idea of human dignity and the old idea of dignitas, connected with hierarchy, rank, and office. One possible way of bridging the gap between the two is to talk of the dignity of the citizen. In modern republics and democracies, the dignity of the citizen extends to a large sector of the population and connotes something about the general quality of the relation between the government and the governed. This chapter first explores Immanuel Kant’s account of the dignity of the citizen, and then it pursues the implications of the dignity of the citizen for modern society and modern theories of human dignity. Though the dignity of the citizen and human dignity are not the same concept, they are congruent in many respects and the former casts considerable light on the latter—in particular on the connection between dignity and responsibility and dignity and transparency in social and political relations.

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  Civility and Formality

  Jeremy Waldron

  Incivility is like injustice in Amartya Sen’s account: it is easier to identify clear cases of injustice than to say what justice consists in, and likewise it is easier to identify conduct as uncivil, that is, as an instance of incivility, than to say what civility actually is. Moreover, just as Sen maintained that “we can have a strong sense of injustice on many different grounds, and yet not agree on one particular ground as being the dominant reason for the diagnosis of injustice,” so equally we can identify incivility (in the words of one law review article) as “hostility, combativeness, rude behavior, insults, threats, or demeaning conduct or words,” without being able to say which of these—the rudeness, the hostility, the insults – is key to the diagnosis. Maybe that doesn’t matter much for the codes that many jurisdictions and bar associations are having to set up to combat incivility among American attorneys. There seems no reason why such codes can’t just consist of a list of prohibitions, such as: “Never, without good cause, attribute to other counsel bad motives or improprieties. . . . Never engage in conduct that brings disorder or disruption to the courtroom.” Or, if they want to forsake the via negativa, they can add affirmative admonitions, such as “always uphold the dignity of the court” and “be punctual and prepared for all court appearances,” without having to prioritize the items on the list or privilege any one element as the essence of civility. And there may be philosophical reasons behind this approach. Both civility and its opposite may be family resemblance terms, which cannot be defined in terms of necessary and sufficient conditions. Some scholars have suggested that we can’t say much more about incivility than (like Justice Potter Stewart on “hard-core pornography”) we know it when we see it, though they reassure us that “there is sufficient consensus on the meaning of political incivility . . . that promoting political-civility norms is reasonable and practical.” Still it would be a pity if we could not say anything more than this about what civility involves; I do not mean the actions it requires, but the sort of virtue it is. It would be good to have some sort of abstract understanding of civility and incivility, not because abstraction is valuable in itself but because one might want an indication of how we extrapolate from the examples we are confident about and think about other cases that may be less familiar or more controversial or more challenging. Also it would be helpful not to confine our discussion of civility to particular settings—the legal profession or behavior in courts, for example. Civility for lawyers may not be the same as civility for politicians, and civility for politicians is not the same as civility for ordinary citizens in their arm’s-length dealings with one another. But they are still all instances of civility. So we need to be able to say something about what is in common here, even if we don’t offer it in the form of a definition. Also we want to be able to distinguish civility norms from other sorts of norms (such as professional ethics) in a given setting. We should not fall into the trap of regarding incivility as the sum of all bad things in people’s public dealings with one another. Consider the issue of hate speech, for example. Although hate speech is usually uncivil, incivility is not its specific vice, at least as the law understands it in countries that have hate speech laws. “Hate speech” is defined in the first instance as speech that is calculated to have a certain social effect: the British formulation refers to “words . . . intended to stir up racial hatred,” the Canadian formulation refers to statements that incite “hatred against any identifiable group,” and the New Zealand formulation (my favorite) refers to “words likely to incite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of [their] colour, race, or ethnic or national origins.” True, the British and New Zealand formulations require speech satisfying this condition to also be “threatening, abusive, or insulting” before it can be prosecuted, and that sounds like incivility. But not all such uncivil speech is penalized. What matters for the hate speech legislation is the effect the speech is calculated to have on social peace and on the dignity and security of vulnerable groups. That evil is additional to and in my view much worse than the incivility. (I do not find the effort of scholars such as Robert Post, who try to analyze hate speech laws purely in terms of civility norms, very helpful.) Sometimes to call something uncivil is radically to underestimate or misconceive its wrongness. I think it is good to cultivate a sense that there are many different kinds of wrongs and vices that may be exhibited when people speak or participate in public: mendacity, insincerity, vulgarity, indecency, a breach of privacy, defamation, the insensitive disruption of a funeral, inflammatory rhetoric, incitement to violence, and so on. Everything is what it is. There is no point in stretching the concept of incivility to cover all these things; and that means we have to have some sense of the specific character of civility. There is one other point about the value of abstract inquiry into the character of this virtue. It seems unlikely that civility is an absolute requirement or an unconditional virtue—a virtue in all circumstances, at least as it is currently understood—or that the positive and negative admonitions of civility codes are moral absolutes or categorical imperatives. Other chapters in this book provide examples. Sometimes hostility and combativeness are what a situation requires; sometimes it is important to be rude, to act outraged, or just to burst through the established liturgies that define and protect an existing form of life. Perhaps sometimes civility should give way on the other side, too: it should give way to love and to a kind of relation between persons that goes beyond the chilly limits of mutual respect. It may be a mistake to seek a definition of civility that makes it always good, always desirable, even as we recognize that—as things stand, in the peculiar pathologies of legal practice, say, or certainly political practice in early twenty-first-century America—civility is something that right now we need much more of.

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  Jeremy Waldron Discusses the Concept of Human Rights and Gives and Argument for "Welfare Rights"

  Jeremy Waldron

  That individuals have rights and that these rights mark important limits on what may be done to them by the state, or in the name of other moral conceptions—this is now a familiar position in modern political philosophy. Of course, the idea is familiar in non-philosophical contexts too. Many countries embody a list of rights in their constitution, proclaiming, for example, that the government will not interfere with the free speech of its citizens, or with their freedom of travel, their sexual privacy, their religious liberty, or their equal access to the law. These Bills of Rights also reflect the importance in the international community of the idea of human rights—the conviction that there are liberties and interests so basic that every society should secure them irrespective of its traditions, history or level of economic development.