Faculty Chapters

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  On Law and Sorrow

  Joseph H. H. Weiler

  The distinction between law and spirit has had an enduring impact in Western culture, where the law, whatever virtues it may or may not have, however necessary it may be for order or even justice, is perceived as “cold” and in tension with the warmth of love and mercy, oblivious to sorrow and pain. I will shine some light on the edges and interconnections of these distinctions by putting them into the context by contrasting the religious law on mourning with the actual spirit of sorrow.

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  The Abraham Model of Multicultural Integration: Ger and Toshav

  Joseph H. H. Weiler

  This book explores the philosophical, legal, and theological roots of Western multiculturalism, that is, the encounter and coexistence of different cultures within a liberal society. Rather than concerning themselves with the particulars of cultural dialogue, the authors of this volume go deeper and question the very reality of “multiculturalism” itself. As a whole the volume devotes attention to the origins of human nature, arguing that regardless of how different another person or culture seems to be, universal human experience discloses what it means to be human and to relate to others and to God. The contributors represent different cultures and faith traditions but are united in friendship and in the conviction that the Christian faith enables an authentic approach to long-standing debates on multiculturalism. Contributors: Massimo Borghesi, Francesco Botturi, Marta Cartabia, Carmine Di Martino, Pierpaolo Donati, Costantino Esposito, Stanley Hauerwas Antonio López, Francisco Javier Martínez Fernández, John Milbank, Javier Prades, David L. Schindler, Angelo Cardinal Scola, Lorenza Violini, Joseph H. H. Weiler.

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  Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy

  Joseph H. H. Weiler

  This essay examines, first, the reasons for the extraordinary impact and iconic status which are attached to Van Gend en Loos. It argues that the explanation lies in a confluence of structural factors and not in the ‘direct effect’ doctrine simpliciter. It then looks at the ‘darker’ side of the case—a proxy for governance—its contribution to a European narrative of efficiency which disregards the traditional mechanism of democratic legitimacy.

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  Crossing the “Public/Private” Divide: Saipem v. Bangladesh and Other Crossover Cases

  José E. Alvarez

  It is now widely accepted that commercial arbitration and investor-state arbitration are two different species of adjudication, even though the latter was based on the procedures used for the former. Commentators as different as Toby Landau and Gus Van Harten have argued that while commercial arbitration is merely an alternative form of dispute resolution that may be an attractive option to private parties, investor-state arbitration, especially when it emerges from a state's pre-existing commitment in an investment protection agreement such as a bilateral investment treaty (BIT), is a species of “public” adjudication. The “publicness” of investor-state arbitration is said to result from the fact that it invariably involves a government as one of the litigants and often implicates regulatory issues of wide public interest, has greater potential effect on the public fisc, and typically generates arbitral rulings that are treated as de facto “precedents.”

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  Limits of Change by Way of Subsequent Agreements and Practice

  José E. Alvarez

  Much as I would like to express disagreement with Gerhard Hafner and generate some illuminating discordance into this discussion, I substantially agree with his chapter and his presentation of it. I largely agree with the premise that the traditional rules for treaty interpretation contained in the Vienna Convention on the Law of Treaties are malleable tools that can be made to apply to every treaty—from institutional charter to bilateral ‘contractual’ arrangement. The application of arts 31 and 32 VCLT can usually lead treaty interpreters to the conclusions that they want. These rules permit, for example, interpretative distinctions leading to the more flexible or teleological interpretations that we see in connection with human rights treaties. For these reasons, among others, I agree with Professor Nolte and the underlying reports reproduced for this conference that a close study of the way subsequent practice is used in treaty interpretation is warranted. The ILC is ideally situated to undertake such a project, thereby laying out where we have been and where we are likely to go. However, I suspect that a study—not an ILC-generated set of new rules on treaty interpretation—is what is needed.

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  What Is to Be Done?

  José E. Alvarez

  The volume publishes the proceedings of a colloquium held at the University of Paris in July 2010. The aim of this colloquium was to fill a lacuna that characterizes the contemporary francophone international legal scholarship. Indeed, as noted by the editors in their foreword to the book, after a prolific period during the 1970s and 1980s, French and francophone scholars have gradually lost interest in Third World-related issues and ignored this topic in their research and teachings. This trend is regrettable and unfortunate because despite some pro gress and improvements, international relations are still marked by significant inequalities and disparities between rich and poor countries, while several regions of the world remain in a situation of extreme poverty. Therefore, there is an urgent need to renew and revive the reflection of French-speaking international lawyers on their discipline by inciting them to critically question the present existence and effects of the rules of international law relating to the Third World in the current globalized context. To achieve this goal, Mark Toufayan, Emmanuelle Tourme-Jouannet and Hélène Ruiz Fabri had the idea of bringing together, in Paris, francophone and anglophone scholars and prominent representatives of the critical Third World Approaches to International Law (TWAIL). TWAIL scholars were invited to expose their ideas and thoughts, and their French-speaking counterparts were asked to react and comment on these thoughts.

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  Identity in the Twenty-First Century

  Kwame Anthony Appiah and Amartya Sen

  The United Nations wrestles daily with questions of peace and security, sustainable development, human rights, the rule of law, good governance, and humanitarian assistance. But at root, the UN's work is about mobilizing efforts to serve humanity. Kofi Annan, the UN's seventh secretary general, recognized a role in these efforts beyond that of diplomats and peacekeepers. He engaged not only the governments of the UN's 193 member states but also academics, artists, and other opinion shapers, aware of their enormous potential as advocates and valued partners in achieving the goals of the UN. As part of this initiative, in 2002 he established the Secretary-General's Lecture Series. The Brilliant Art of Peace presents lectures delivered by seventeen of the world's most eminent thinkers, including several Nobel laureates, during Annan's tenure. The lectures challenge prevailing thinking on important issues such as globalization, human rights, identity, religion, science and technology, economics, the humanities, language, music, and the United Nations. The reader will find humor, moral rigor, and wit in this thought-provoking and timeless collection. A must-have for any reader interested in the human condition.

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  Economic Analysis of Medical Malpractice Liability and Its Reform

  Jennifer H. Arlen

  This pioneering Handbook contains specially-commissioned chapters on tort law from leading experts in the field. This volume evaluates issues of vital importance to those seeking to understand and reform the tort law and the litigation process, taking a multi-disciplinary approach, including theoretical economic analysis, empirical analysis, socio-economic analysis, and behavioral analysis. Topics discussed include products liability, medical malpractice, causation, proximate cause, joint and several liability, class actions, mass torts, vicarious liability, settlement, damage rules, juries, tort reform, and potential alternatives to the tort system. Scholars, students, legal practitioners, regulators, and judges with an interest in tort law, litigation, damages, and reform will find this seminal Handbook an invaluable addition to their libraries.

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  Foreword: Lawlessness in China

  Jerome A. Cohen

  Although China has made great strides in erecting a formal legal system on the wreckage of the Cultural Revolution, there is widespread agreement that implementation has lagged far behind lawmaking. Thus, inevitably, one of the obvious themes that emerges from this important book is the extent of lawlessness in China. Lawlessness can take many forms. Under the leadership of the Communist Party's political-legal commissions that operate at every level of government, the police have mastered the range of lawless black arts, and the procuracy (prosecutors' office) and the courts have too often proved accommodating. The nation's “law enforcement” agencies, in plain view of the National People's Congress and the country's lawyers and law professors, have even stood on their head key provisions of major legislation designed to protect the rights of criminal suspects and defendants. How long, for example, can police detain a suspect before seeking the procuracy's approval of an arrest? The 1996 Criminal Procedural Law (CPL) in most cases gave police only three days. In certain circumstances they were allowed four more days, and in only three relatively rare instances were they permitted to hold the suspect for as long as 30 days before requesting procuracy approval. Yet in practice the police turned the rare exceptions into the rule by taking up to 30 days in every case, and no legislator, lawyer, prosecutor or judge has been able to cure this distorted application of the law. Similarly, the 1996 CPL provided for witnesses to testify in open court against an accused and subjected them to cross-examination by the defense, an immensely significant reform in principle. During 16 years of practice under the 1996 CPL, however, witnesses almost never appeared at trial, so the newly-enshrined right of cross-examination usually proved worthless. The illegal 2011 confinement of the celebrated artist/activist Ai Weiwei for 81 days of incommunicado “residential surveillance”—not in his residence but in a police facility—is a notorious illustration of how law enforcement twists the law. Ai's detention not only violated the CPL but even a published rule of the Ministry of Public Security that warned its subordinates not to convert authorized “house arrest” into unauthorized police detention. Will the newly-revised CPL that went into effect January 1, 2013, fare any better? One of its most controversial sections now authorizes the public security agency to detain persons incommunicado for up to six months of “residential surveillance”—in police custody, not at home-if they are suspected of terrorism, endangering national security or major corruption. How broadly will the police, including the secret police of the Ministry of State Security, define these three legislated exceptions to the demands of ordinary criminal procedure? Will the exceptions once again defeat the rules? Will the procuracy, which in the system the People's Republic imported from the Soviet Union is supposed to be the “watchdog of legality,” effectively monitor the exercise of police discretion? Under the new CPL will the judiciary develop into an institution for controlling police and prosecutorial misconduct? Until now, the courts, of course, have often had difficulty fairly applying the CPL in what has been their relatively narrow bailiwick—the criminal trial. Party interference, corruption, local protectionism and social networks have all led to distorted applications of the law. Farcical trials have been legion, especially in cases deemed “sensitive” for a variety of reasons. Yet the new CPL for the first time provides opportunity for the courts to review the legality of pre-trial police and prosecutorial investigative practices, including endemic use of torture to obtain confessions during interrogation of suspects. It remains to be seen how judges will interpret the new rules allowing them to summon investigators to court in instances where there are indications of coerced confessions and to exclude from the evidence illegally-obtained statements. To be sure, good faith interpretation of the CPL is not the only challenge presented by lawlessness to China's criminal justice system. In practice, in a perceived crisis, the CPL has in effect been suspended wholesale as well as in individual cases. In such instances the functional division of labor and checks and balances called for by the CPL since its first enactment in 1979 are ignored. Police, prosecutors and judges, in conjunction with other government and Communist Party officials, are then expected to act like “a single fist” in carrying out investigation, prosecution and criminal punishment. On some occasions, when local law enforcement cannot be trusted by the central government, central authorities organize and dispatch law enforcement work teams from Beijing to jointly dispense criminal justice in the troubled area.

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  Does the Globalization of Anti-Corruption Law Help Developing Countries?

  Kevin E. Davis

  International organizations routinely incorporate anti-corruption efforts into their good governance programs. An OECD treaty outlaws the bribery of foreign public officials, and the United Nations has promulgated a broad-based anti-corruption treaty. The arbitral system for international dispute resolution increasingly confronts allegations of corruption. Scholars are beginning to document the costs of corruption for the citizens of developing countries and for the integrity of international business dealings. The editors, Susan Rose-Ackerman and Paul D. Carrington bring together a diverse group of authors to evaluate these ongoing anti-corruption efforts and to consider whether new directions are warranted. After Rose-Ackerman's introduction, contributions by World Bank staffers summarize the promises and challenges of good governance programs in International Financial Institutions. The next section deals with other international actors, such as civil society, business, and the media. One chapter questions whether democracies will invariably support the anti-corruption agenda. The volume then considers the strengths and weaknesses of existing anti-corruption treaties and assesses the role of the Financial Action Task Force. The last section confronts the overlapping roles of public and private law in the control of transnational bribery. Chapters discuss the World Bank's sanctioning system and the status of contracts tainted by bribery, especially ones that are the subject of international arbitration. The volume concludes with Carrington's proposal for expanding international private law remedies for fighting corruption.

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  Law as Microagression

  Peggy C. Davis

  In January of 1988, the Chief Judge of the highest court of New York commissioned sixteen citizens to consider whether minorities in that state believe the court system to be biased. The answer was immediately apparent. With striking regularity minority people, in New York and elsewhere in the United States, report conviction that the law will work to their disadvantage. Every relevant opinion poll of which the Commission is aware finds that minorities are more likely than other Americans to doubt the fairness of the court system." Having quickly discovered evidence of a widespread minority perception of bias within the courts, the Commission was left to consider its causes. The causes are not easily established. Those who perceive the courts as biased admit that incidents of alleged bias are usually ambiguous; that systematic evidence of bias is difficult to compile; and that evidence of bias in some aspects of the justice system is balanced by evidence that the system acts to correct or to punish bias in other sectors of the society.

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  EU External Relations: The Governance Mode of Foreign Policy

  Gráinne de Búrca

  This chapter revisits the familiar question of the distinctive nature of EU foreign policy and external relations. It begins from a similar starting point from which much of the existing literature on the EU as a normative or civilian power begins, in assuming that there is something fairly distinctive about the way the EU conducts its external relations. But it departs from much of that literature in eschewing any claim that the EU is in some way more virtuous than other international actors, or that it is motivated mainly by values, principles or norms, rather than by its own interests. Rejecting the assumption of a sharp distinction between the EU’s promotion of values and its pursuit of interests, the analysis focuses instead on what I call the EU’s governance mode of foreign policy, namely its tendency to act collectively rather than unilaterally, and to establish and institutionalize stable external governance systems on a wide range of issue areas. The first part explains in further detail what I mean by the governance mode of foreign policy. The second part briefly outlines the evolution of the EU’s external role. The third part sets out a number of examples of the EU’s governance mode of external relations, and the final part raises a number of questions about the impact of the governance mode in international relations.

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  Power and the Public: The Nature and Effects of Formal Transparency Policies in Global Governance Institutions

  Megan Donaldson and Benedict Kingsbury

  In 1956 the eminent French international lawyer Paul Reuter urged the construction of an international law of secrecy, to be built from general principles of law, and particularly from the spirit animating various municipal laws concerning secrecy. Surveying instances in which questions of the bounds of secrecy had recently presented themselves, from States’ refusals to provide documents or furnish witnesses before international tribunals, to conflicts within and between European institutions over access to particular materials, he traced the way in which secrecy or lack of secrecy had emerged as a problem in tandem with the proliferation of supra-State institutions. For Reuter, organizations had an inner life of which secrecy was a necessary corollary; indeed some measure of secrecy regarding the inner workings of these bodies was crucial for their autonomy. This sensibility has changed radically in recent decades. Openness and transparency are now widely seen as important elements of institutional legitimacy, for global institutions as much as for domestic authorities, and when municipal law is referred to in international organizations it is usually as a source of examples not for laws imposing secrecy, but for freedom of information regimes and legal rights that provide for more institutional openness. Each of these regimes of course also legitimates very considerable secrecy, and secrecy is routine in particular in much extra-national activity concerning security, finance, crime control, or business. However prevalent it is in practice, though, few governance institutions announce a ‘secrecy’ policy (as opposed to a policy of privacy for individuals), and the literature and public discussion is overwhelmingly couched in terms of transparency. Secrecy appears in the discourse as, at best, a sort of residual concession in the interstices of regimes ostensibly oriented to disclosure. The transition from Reuter’s Cold War perspective to the dominant presumption of transparency today is only a fragment of longer and more complex histories, in which struggles over information, within and beyond the State, have had profound implications for structures of material and discursive power, and for relations of political authority. In a crude way, however, this transition can be understood as the product of at least two related developments. The first is a greater focus on, and contestation of, secrecy in institutions of the democratic State, particularly as the governance roles of executive agencies and of other experts have expanded. The second is a further shift in the locus of decision-making authority to, or at least its diffusion through, new institutions beyond the State, and the growing imbrication of transnational, regional and domestic legal and administrative processes. The growth of governance beyond the State has had multiple effects for access to information. International organizations and international law have been important channels for the dissemination of norms of access to information applicable to governments and public authorities. Requirements that States make certain information available have been deployed in inter-State regimes for trade, investment, environmental protection, human rights and more. Many global institutions and initiatives, from certification regimes for products to social and sustainability reporting for corporations, aim to make visible supply chains, transactions and labour practices that would otherwise not be matters of public knowledge. However, the very proliferation and increasing reach of global governance institutions has also created new concerns about insufficient access to information and the potential weakening of democratic accountability within polities. These concerns are manifest in demands for greater ‘transparency’ regarding the interactions between governments and global governance institutions, and between different governments under the auspices of these institutions, as well as regarding decisions and policies formulated within the institutions themselves. At its broadest, ‘transparency’ in global governance institutions embraces matters as diverse as the publication of documents, protocols for who may participate as observers in an institution’s work, investigative powers of internal review bodies, and approaches to the ownership and management of archives. This chapter examines just one part of the picture: the emergence of a (still limited and partial) norm of transparency in various classes of global governance institution, as manifested in the spread among these institutions of general policies regarding access to information. Section 2 surveys the extent to which such policies currently exist and the diffusion of such policies in some key global governance institutions, and comments on the terms and diffusion patterns. Section 3 considers the extent to which these developments may be understood as part of an emergent ‘global administrative law’ of transparency. Formal policy instruments may bear only a tangential relation to a much more complex reality of how information is generated and handled and, as transparency policies generally make available only documents that already exist, the kinds of information that may be obtained under even the most expansive policy will be constrained by the institution’s approach to gathering and recording information in the first place. That fundamental fact notwithstanding, we focus this study on general transparency policies purporting to make information available regardless of the audience’s involvement in any particular issue, as these are the most far-reaching manifestations of a new embrace of transparency. In addition to their concrete effects, they channel normative argument about transparency in particular directions, provide a site for reimagining the relations between actors in global governance, and shape arguments about what greater demands should be made of global governance institutions in future. In section 4, we propose a series of hypotheses about the effects that transparency policies and other measures to ensure greater transparency of global institutions may have for States, within States, for the institutions, and for non-State actors. In section 5 we point to some ways in which transparency might further shape structures of authority in the global order, perhaps by enhancing a dimension of publicness in global governance institutions.

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  The Global Governance of Public Law

  Megan Donaldson and Benedict Kingsbury

  This chapter examines the global governance of public law, taking the World Bank's Handbook for Evaluating Infrastructure Regulatory Systems as a case study. The Handbook exemplifies the efforts of global institutions to shape the institutions and content of national public law, not only in domains such as human rights, but in more technical, albeit highly political, areas of economic regulation. The chapter first considers the rhetorical techniques and conceptual apparatus evident in the Handbook, and particularly the invocation of a vocabulary of governance having affinities with both public law and more managerial discourses. It then asks to what extent the preparation of the Handbook, and evaluations for which it provides, might be made subject to public law principles, arguing that the Handbook illustrates both the potential and limits of two strands of thinking about public law beyond the state, ‘global administrative law’ and ‘international public authority’.

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  Double or Nothing: Technology Transfer under the Bayh-Dole Act

  Rochelle C. Dreyfuss

  The United States is fascinated with technology. Prior to the Tea Party (the first one), the colonies angered England by engaging in rampant technological piracy. Thomas Jefferson was an inventor and took a personal interest in the patent system. Many scientific institutions were established in the first century of the nation’s existence—the Smithsonian Institute and the American Association for the Advancement of Science in 1850; the National Academy of Sciences and the Department of Agriculture, in 1862. In 1862 and 1890, the Morrill Acts gave birth to the land-grant college system, which focused on innovation in agriculture, science, and engineering. To many Americans, it was technology—advances in aviation, radar, encryption, medicine, and nuclear energy—that won the Great Wars. Indeed, during World War II, President Roosevelt asked Vannevar Bush, his science advisor, to create a technology plan for the post-war period. The strategy Bush developed was centered on a linear theory of innovation in which development was perceived as moving from ‘upstream’ discovery of fundamental insights to their ‘downstream’ commercial application. In Bush’s view, upstream research—basic science—was too far removed from application to be an attractive target for commercial investment. At the same time, however, he saw this work as the wellspring from which multiple technological prospects flow. To assure continuing support for basic science, he recommended—and the U.S. Government pursued—a mixed program of intramural research within Government laboratories and Government funding of extramural research in universities and other nonprofit organizations. Funding agencies either placed the fruits of these efforts into the public domain (through publication) or patented and licensed them out on a non-exclusive basis. The expectation was that industry would adapt the advances, find applications, create new businesses and jobs, enhance productivity, and improve social welfare. Given its infatuation with science, it is not surprising that when the United States went into a period of stagflation in the late 1970s, it once again hung its hopes on technological development. While the economists of the day certainly agreed with Bush on the relationship between technology, productivity, and social welfare, many were skeptical about his notion of a linear progression from upstream science to downstream technological application. They argued that while upstream researchers may excel at identifying scientific and technological opportunities, they might lack sufficient understanding of business to recognize commercial opportunities. Further, there was concern that the advantages of cheap access to upstream research through nonexclusive licensing were outweighed by the costs associated with free-riding. It can be expensive to move advances from the lab bench to the marketplace: heavy investments could be required to scale up production, take account of user preferences, build distribution systems, and educate consumers about the value of the product. If second-comers can acquire rights equivalent to those of the first mover, they could undermine the first mover’s ability to recapture early (and often risky) investments. To deal with these problems, the United States doubled down. In 1980, it passed the Bayh-Dole Act, which gave universities (and certain other institutions) the authority to patent the fruits of federally supported research. The Act required the public to pay for inventions twice, first through the tax system and later via supracompetitive pricing. Arguably, however, the new regime also doubled the effectiveness of the Government’s investment. Universities could grant developers facing high downstream expenses exclusive rights, which would protect them from free-riders. Furthermore, by requiring universities, faculty, and industry to engage in licensing, the new system would expose academia to business problems, and industry to scientific research. Opportunity-recognition skills would improve for all concerned; upstream research would be better attuned to the market and industry would enjoy advanced information on scientific breakthroughs. But the Act also carried new risks. As Robert Merton has argued, the reward system in basic science is finely attuned to the demands of the research enterprise. Reputational rewards come from publishing early and sharing materials; the commitment to communitarianism ensures that good work is available to continually push the frontiers of knowledge forward. In contrast, concern for financial rewards promotes secrecy, data hoarding, and a focus on targeted projects; it can lead to conflict among faculty, students, and the administration. In fact, the Bayh-Dole approach could backfire. Upstream research could become more costly as research inputs became subject to patent claims. At the same time, downstream progress could falter as greater reliance on exclusive licensing eliminated the possibility for competitive development of fresh prospects. The Bayh-Dole Act has now been in force for 30 years; we are in yet another recession in which we are looking to technology for solutions. It is therefore fitting to ask how the wager made in 1980 has panned out: did the Bayh-Dole Act increase social welfare, as its supporters hoped, or did its emphasis on patenting poison the wellspring? This chapter begins with a short description of the Act. It next moves to consideration of the evidence. Finally, the chapter turns to the future. There is a strong element of path dependency at work in this arena. Reliance on Bayh-Dole within the research and academic communities make its repeal virtually unthinkable. However, the Act could be modified in light of experience. Furthermore, other countries might learn from the United States experience and enact technology transfer regimes that do better.

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  The Patentability of Genetic Diagnostics in U.S. Law and Policy

  Rochelle C. Dreyfuss

  In the US, a confluence of developments has drawn attention to the issue of patents on diagnostics, particularly to patents involving genetic information used in the diagnosis of familial conditions. Foremost is the movement of patents into ‘upstream’ research. Arguably fueled, in part, by universities’ attempts to derive economic value from their faculty’s research efforts, the notion of patenting fundamental technologies initially enjoyed a warm reception in (not surprisingly) the court that was established specifically to hear patent appeals and stabilize patent law—the United States Court of Appeals for the Federal Circuit. As a result of Federal Circuit decisions—in particular its decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc.—patenting proliferated, including in the medical field. Thus, there are now patent rights covering around 20 percent of the genes said to comprise the human genome. There is, of course, ample precedent for using patents as a mechanism for spurring research and commercialization. However, because rights in this sphere can cover advances fundamental to the biological sciences, they could very well frustrate society’s ability to fully benefit from genomics’ considerable promise to revolutionize healthcare and transform pharmaceutical research. Patents on genes and on associations between genes and hereditary conditions can raise the cost of, and interpose other obstacles to, accessing diagnostic services. These patents also create an ‘anticommons’ that could undermine the development and implementation of more efficient diagnostic and research technologies. These techniques, including multiplex testing (which permits simultaneous analysis of large arrays of genes) and whole genome sequencing (the analysis of each person’s entire genetic endowment), would enhance research efforts and permit doctors to engage in ‘personalized medicine’ and tailor care to each individual patient’s predispositions. Indeed, concerns about patents on products (such as genes) that have informational content, and on processes (such as diagnostics) that exploit basic biology have surfaced in both the courts and in policy circles. In Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., a case about patent rights over a diagnostic process (in that case, associating an elevated level of a particular amino acid with a vitamin B12 deficiency), Supreme Court Justice Stephen Breyer dissented from the dismissal of review, suggesting that ‘sometimes too much patent protection can impede rather than “promote the Progress of Science and useful Arts.”’ In Bilski v. Kappos, the Court soundly repudiated State Street and confirmed that laws of nature, physical phenomena, and abstract ideas cannot be patented. And most recently, in Mayo Collaborative Services v. Prometheus Laboratories, the Court invalidated a patent on a different diagnostic process, warning of the ‘danger’ of ‘inhibit[ing] future innovation.’ Unfortunately, the Supreme Court’s decision in Mayo left many open questions. The case concerned a particularly straightforward association diagnostic test: it determined whether a patient was receiving the right amount of medication by looking at whether a metabolic product of that medication was within a specified range. The Court did not consider more complicated diagnostics, such as the effect of a genetic endowment on the potential contraction of a disease. Furthermore, Mayo (like Bilski) concerned only process claims; it did not deal with product patents, such as patents on isolated genes. Another case, Association for Molecular Pathology v. Myriad Genetics, Inc., is, however, waiting in the wings. Often called the ‘Myriad’ case, after the patent holder, Myriad Genetics, Inc., AMP involves (among other things) claims on associations between certain genetic mutations (the so-called ‘BRCA’ mutations) and breast cancer as well as claims on isolated DNA containing all or portions of the BRCA1 and BRCA2 gene sequences (that is, DNA molecules containing the sequences of nucleotides which, when mutated, cause an increased risk of breast cancer). In the trial court, Judge Robert Sweet held all these patents invalid. On appeal, the Federal Circuit reversed on the diagnostic claim and the Supreme Court sent the case back to the Federal Circuit to reconsider in light of Mayo. After the Federal Circuit reinstated its position, the Supreme Court granted review on the product claim.

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  Alternatives and Complements: Liability and Regulation as Remedies for Physical Injury

  Richard A. Epstein

  This pioneering Handbook contains specially-commissioned chapters on tort law from leading experts in the field. This volume evaluates issues of vital importance to those seeking to understand and reform the tort law and the litigation process, taking a multi-disciplinary approach, including theoretical economic analysis, empirical analysis, socio-economic analysis, and behavioral analysis. Topics discussed include products liability, medical malpractice, causation, proximate cause, joint and several liability, class actions, mass torts, vicarious liability, settlement, damage rules, juries, tort reform, and potential alternatives to the tort system. Scholars, students, legal practitioners, regulators, and judges with an interest in tort law, litigation, damages, and reform will find this seminal Handbook an invaluable addition to their libraries.

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  A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA

  Richard A. Epstein

  The United States has had two constitutions over the past 225 years. The first Constitution, which featured limited government and strong property rights, was crafted in 1787, after which it was duly ratified in a set of state conventions. The second was crafted during the New Deal by a set of Supreme Court decisions that inverted the old order by allowing large government agencies to operate freely in a regime of weak property rights. The second Constitution grants the federal government powers of taxation and regulation that are far greater than those in the 1787 Constitution. The force of this second Constitution, on both the liberal and conservative justices, was on full display in NFIB v. Sebelius (NFIB). Debate in the case blurred the lines between the two Constitutions by making it appear at critical junctures that the original Constitution supported this bold new initiative.

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  How to Create Markets in Contestable Commodities

  Richard A. Epstein

  Standard economic theory has a strong preference for proving the efficiency of competitive markets by analyzing the market for widgets. It is a fair question to ask exactly what a widget is in the context of this theory, to which the appropriate answer is that it is a close relative of the gidget, the second notable good in neoclassical economic theory. As befits the low regard that the dismal science holds in literary circles, the term “widget” was introduced in a play by George S. Kaufman and Marc Connelly, Beggar on Horseback, in a dismissive sense, to refer to “some mechanical product without artistic or spiritual value,” their own writings, for example. But this useful term has been fully co-opted by the economics profession for a useful function, namely, “to indicate a hypothetical ‘any-product.’” As will become clear, the word “widget” functions well when identification of a particular product is irrelevant to the exposition of a particular theoretical point.

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  Sequential Injunctions in Patent Litigation: The Gratuitous Novelty of TiVo v. EchoStar

  Richard A. Epstein

  On April 20, 2011, the Federal Circuit issued its long-awaited decision in TiVo v. EchoStar. The case revolved around the scope of injunctive relief in patent cases—but with a twist. In the conventional patent case of this sort, the usual question is whether to issue an injunction once it is found that the defendant has marketed or used an infringing device. In TiVo, the discussion swirled around a somewhat neglected variation on the main theme, which asks the question of what should be done with sequential injunctions. More precisely, the case asks how the system of injunctive relief should be administered the second time around, when the defendant, who is bound by the initial injunction, seeks to design around the original patent. Early in the case, the plaintiff TiVo obtained both an injunction and monetary damages against EchoStar for its breach of TiVo's patents. EchoStar then introduced into the market a workaround product, claiming it steered free of the TiVo patents; TiVo disagreed. The main issue in the TiVo case was whether the district court judge was correct in deciding to use a short-form trial, on the ground that there was a high probability that EchoStar's proposed workaround resulted in the creation of a second infringing device. In my view, the answer to that question should have been in the affirmative, so long as two questions were, as the district court urged, resolved for the plaintiff. The first of these was whether a comparison between “the adjudged product”—the defendant's original device—and the modified product—the product made in order to evade the injunction—were “more than colorably different,” at which point a full trial was required. Under KSM, answering this question lay within the sound discretion of the trial court. If the differences on the threshold question did not rise to that level, a contempt proceeding to enforce the injunction against the modified product was allowed if it could be shown that “the modified device has not been changed from the adjudged device in a way which affects an element of a claim.” Once that question was resolved, the plaintiff then had the burden to show by clear and convincing evidence that the second product still infringes the original patent, holding constant the construction of the original claim.

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  The Legacy of Progressive Thought: Decline, Not Death, by a Thousand Cuts

  Richard A. Epstein

  This chapter sums up the causes of the American Illness and argues that the chief source of this problem lies in the expansion of direct regulation through the administrative state at the national, state, and local levels. It reviews the key features of the progressive mindset; the progressive policies that led to unwise increased taxation; free trade in the international arena; affliction of permititis at the federal and state levels; recent developments of the Obama health care legislation; and employment relations in public and private sectors.

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  Individual Employee Rights at Work

  Cynthia Estlund

  There have been laws regulating the employment relationship for as long as there have been employment relationships. Throughout the industrialized world, societies have claimed a significant stake in workers’ terms and conditions of employment, and have been unwilling to leave them entirely to the vagaries of private bargaining within unregulated labour markets. For much of the twentieth century, the primary mode of societal intervention into the employment relationship took the form—or a variety of forms—of frameworks for collective representation and bargaining. But even when and where collective bargaining was the dominant mode of workplace governance, the collective freedom of contract was either constrained by legislation (e.g. setting a floor on labour standards), coordinated through (corporatist) institutions accountable in some manner to the wider public, or both. Work has long been deemed too important to leave its regulation entirely to the decisions of workers and employers alone. So alongside the development of legal frameworks for collective bargaining—which aim to reform the bargaining process between workers and employers—modern industrial societies have also regulated the substantive terms of employment. With few exceptions, they have done so in response to the demands of workers and their allies for protection from employer treatment that is deemed unfair, exploitative, arbitrary, or otherwise contrary to societal norms of decent work. To that end, legislatures, and sometimes courts, have imposed mandatory rights and minimum terms or conditions of employment that are more generous to employees than those which the latter might otherwise have agreed to, individually or collectively, under prevailing labour market conditions. (To be sure, many of these employment mandates also correct for collective action problems, information asymmetries, or other impediments to efficient contracting; but they still operate largely in favour of employees, as constraints on employers, and as floors rather than ceilings on what the parties may agree to on their own.) By contrast, employers are generally thought capable of protecting their own interests in the employment relationship, and are rarely given the benefit of mandatory terms of employment more favourable than those they can exact for themselves through voluntary agreements.

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  Deregulating Union Democracy: Creating a Marketplace for Workplace Representation Services

  Samuel Estreicher

  "No King is as safe in office as a Trade Union Official," so quipped George Bernard Shaw in a 1930 play, The Apple Cart. After forty years of federal guarantees of union democracy under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Landrum-Griffin Act), we are no closer to the democratic ideal of active membership involvement and contested elections, let alone two-party systems. Without gainsaying that some improvements may have occurred in some places, I believe it is time to reassess the entire system of regulation of internal union affairs. My argument is that union democracy regulation is both ineffectual and counterproductive, and we should move to a system where the law is indifferent to the form the bargaining agent takes—whether it be democratic or autocratic, nonprofit or for-profit—as long as employees in the bargaining unit have low-cost opportunities to cast secret ballot votes on the economic decisions of critical importance to them. The pursuit of union democracy is ineffectual because we know from decades of research on union member participation in internal union affairs that union members do not treat internal union elections as salient elections requiring a claim on their scarce attention span for matters not directly affecting their material interests. Hence, they do not make the investment in information and attendance at meetings necessary to exercise an informed choice or to participate in a way that would ensure an effective influence. This can also be viewed as a form of "collective action" problem: (i) monitoring union performance and active participation are costly and time-consuming; and (ii) the benefits of improved union performance cannot be confined to those willing to make the investments in monitoring and participation.

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  Negotiating the People's Capital

  Samuel Estreicher

  What follows is the second part of an unofficial transcript of an off-the-record conversation among three of the labor movement's leading strategists. (The first installment appeared under the title Strategy for Labor, 22 J. Lab. Res. 569 (2001), and has been updated as Strategy for Labor Revisited, available at http://www.ssrn. com). This second meeting was also convened by C, or "cooperationist," who had been for more than ten years the president of a local union, part of a major industrial union, representing 3,000 employees who had been hired to staff a new manufacturing plant in a Southern town ("Newplant"). Newplant had been widely touted as a breakthrough in U.S. labor-management relations because it was consciously designed to promote greater participation of production and maintenance workers in business decisions and a "partnership" role for union officials alongside traditional management officials. In bitterly contested local elections last year, C was voted out of office and now serves in a staff capacity at the AFL-CIO. A, or "adversarialist," perhaps surprisingly a longstanding friend of C, is the research director of another industrial union. A was very active in the Students for A Democratic Society in the 1960s, and after graduating from Oberlin College began his career as a labor organizer, working for a succession of unions that had been active in the McGovern-Kucinich wing of the Democratic Party. S, or "stay the course," is the highly respected chief of staff for a national union representing government workers. [Section headings and parenthetical references are supplied by the editor and do not appear in the original transcript.]

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  NLRB Lacks Authority for Its D.R. Horton Decision

  Samuel Estreicher and Katherine C. Huibonhoa

  The two-member Board in D.R. Horton ruled that a class action waiver in a predispute arbitration agreement required as a condition of employment violates Section 8(a)(l) of the National Labor Relations Act ("NLRA"), which makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" Section 7. In turn, Section 7 protects employees' rights "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.'' The theory of the agency's ruling is that because employees are protected from employer retaliation for engaging in group assertion of workplace claims by filing a group lawsuit, the right to file and maintain the lawsuit on a group basis become ''protected activities" that may not be "restrict"[ed], NLRB v. D.R. Horton, Inc. even by otherwise lawful individual employment agreements. In essence, a minor aspect of the NLRA—the protection of the act of asserting a group claim over non-NLRA rights—becomes a basis for the NLRB's reaching out from its proper role of enforcing collective law into a new world of individual employment law. With this decision, the Board overstepped its bounds in two critical respects.