Faculty Chapters

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  Introduction: Making Legal Historians

  Daniel J. Hulsebosch and R. B. Bernstein

  This book presents chapters that offer an illuminating cross-section of the questions, sources, and narratives used by historians working in the field of American legal history today. Its goal is to honor William E. Bill Nelson's convictions about the historical enterprise, above all the central importance of identifying a genuine problem, undertaking original research, and telling a compelling story. The volume's contributors do not subscribe to a single programmatic theme or method. Instead, they ask different questions, use an array of sources, and tell their stories in individual ways. The remainder of the chapter briefly discusses Nelson's contributions to scholarship on American legal and constitutional history, followed by an overview of the subsequent chapters.

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  Courts, Constitutions, and the Limits of Majoritarianism

  Samuel Issacharoff

  As my colleague Richard Pildes has proclaimed, we are in the Age of Democracy. Today more citizens participate in popular elections of government than at any other time in the history of world affairs. Democratization movements throughout the world have produced institutions of self-governance in regions where this was previously unthinkable. Even countries deep in the throes of tyranny or kleptocracy attempt to maintain a veneer of participatory engagement by their citizens, hoping perhaps that the act of casting a ballot serves as a sudden guarantee of legitimacy. The welcome expansive role of elections once again raises questions as to what properly constitutes democratic government, however. The term “democracy” is frequently used in its most minimal sense, as a system through which the majority, either directly or through representative bodies, exercises decision-making political power. And certainly, so long as the system is reasonably free and involves an uncorrupted popular selection of the head of state, a society is deemed democratic. Whether majoritarian selection is sufficient is another question altogether. Consider the Copenhagen criteria for accession to the European Union (EU) as a case in point. In order to be eligible for admission to the EU, a candidate state must have a demonstrated commitment to democracy. Little beyond this minimal condition is specified, leaving both the EU and potential entrants subject to ad hoc decision making on a country-by-country basis. The reason is largely historic and emerges from an era in which the democratic world in Europe could be quite aptly defined by the exclusion of the Soviet bloc, Francoist Spain, and the military regimes in Greece and Portugal. Little more analysis was needed, and such classification was straightforward. But when faced with claims for integration from the East, with divided societies such as the Baltics, Romania, and Bulgaria, or fratricidal societies such as the Balkans, this definition becomes predictably insufficient. In such countries, the question is not simply one of the majority being able to rule but of the limits on what the majority may do with its power. The emergence of new systems of self-rule forces us to ask whether such a spare definition is sufficient or whether further institutional constraints on the majority are necessary in order to produce stable governments capable of protecting other core liberal values, such as equality, rule of law, and freedom of speech. Once we turn to fractured societies marked by deep cleavages over race, ethnicity, language, or religion, the use of an elected head of state as the shorthand for our democratic aspiration becomes woefully inadequate. Popular selection only determines who shall rule; it does not speak of the constraints that must accompany the exercise of that power. In deeply divided societies, the emergence of stable democratic rule requires dampening animosities so that the population as a whole views the exercise of state authority as politically legitimate or, perhaps more modestly, does not rise in armed rebellion against the state. To this end, some guarantee is required that elections are not a one-shot, end-stage game in which access to state power will permanently define the relation of conqueror and vanquished. In a divided society, constraints on pure majoritarian democracy provide credible commitments that the faction in control of government will face limits in the use of state power against minorities in that country and that new majorities may emerge to dislodge the incumbent officeholders from power. For several decades now, the task of defining permissible bounds of constrained democracy has been the central challenge taken up by theories of consociationalism. In his classic account, Arend Lijphart identified the critical elements of the consociational experiment as turning on an ex ante allocation of political representation and other public benefits along the lines of the central cleavages of the society and the creation of a mutual veto or concurrent-majority voting rule to enforce that agreement. The key to the consociational model is that power will be allocated across competing interests in the society, independent of the political process. Thus, elections in consociational democracies typically can decide who among the candidates of a particular ethnic or racial group will hold an office that was predetermined to be assigned to that particular group; whether a particular group or interest should hold office is decided outside the electoral process through the formation of what Lijphart terms the “grand coalition.”

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  Commentary

  Mitchell A. Kane

  Professor Seer has provided in his chapter a thorough examination of the question of deductibility of gifts to charitable bodies in third countries under the proposed Council directive regarding a common consolidated corporate tax base. There are two features of the proposed directive’s treatment of this issue which are particularly worthy of note. First, donations to charitable bodies in third countries are deductible essentially on the same terms as donations to charitable bodies in Member States, at least where certain informational requirements are met. This commentary will refer to this feature as the “parity” provision. Second, donations to charitable bodies (in both Member States and third countries) are deductible only up to 0.5 per cent of revenues for a taxable year. This commentary will refer to this feature as the “cap” provision. Interestingly, this cap appears to be substantially lower than analogous caps under the national laws of various Member States. For example, some countries, such as the United Kingdom, apply no cap at all. German law likewise presents a notable contrast to the proposed directive. Specifically, Germany applies a cap under a sort of split-rule, according to which the cap on deductibility is set at the higher of 20 per cent of net income or 0.4 per cent of gross revenues plus payroll. Presumably the German reference to a gross base, in addition to a net base, is meant to allow space for deductibility of fixed contributions in years where a company has low net income, or even a loss. Germany also allows a carry-forward of any disallowed deductions under the cap.42 By contrast, the cap under the proposed directive refers only to a revenue base and has no carry-forward provision. The likely consequence of this is that in medium to high profit years the proposed directive could very likely set the cap at a rate well below that under the national law of Member States such as Germany that permit calculation of a cap on a net basis at relatively higher rates. In light of the basic parity approach under the proposed directive, it would be unwise to analyse the issue of donations to third-country charitable bodies in isolation. Rather, a full understanding of the proposed directive’s treatment of the third-country case is best developed within the scope of an analysis that considers the broader issue of donations to charitable bodies formed in any state outside that of the transferor, whether a Member State or a third country. This is precisely the tack that Professor Seer has followed in his chapter, which places the analysis of donations to charitable bodies in third countries within the context of a general discussion of the following issues: the overall character of charitable donations as business expenses or not; the justification for deductibility of charitable donations to the extent they are not business expenses; and the ECJ jurisprudence on the deductibility of charitable donations to organizations in other countries. Professor Seer reaches the following conclusions on these three matters. First, he finds that charitable donations are generally not to be considered business expenses. Second, he takes the deduction of charitable donations to be justified in certain cases, notwithstanding the fact that they are not business expenses, on the grounds of a tax surrogate theory. That is, to the extent that the charitable body performs functions which relieve the sovereign of its obligations, then such donations function as tax surrogates and ought to be removed from the tax base. To the extent the body does not relieve the sovereign of its obligations, then the above-stated justification fails and the donation should not be deduct- ible. Given the rationale underlying the tax surrogate theory, it is not surprising that national legislation has tended to afford deductions only in the case of donations to bodies internal to the state. In other words, although sovereigns sometimes undertake obligations that are to be fulfilled in third countries, this is the exception rather than the rule. At the very least, it is to be expected that a donation to a third-country charitable body will relieve the sovereign of fewer obligations than a donation to a like organization in the home country. Third, the ECJ jurisprudence on these matters, chiefly the Hein Persche case, has required that to the extent a Member State allows deductibility of charitable donations at all, it must do so in a non-discriminatory way that does not impede the free movement of capital under Article 63 TFEU.46 Thus, Member States must allow deductibility for transfers to internal bodies and bodies organized in another Member State on equal terms. The basis for this decision is that limiting deductibility to internal bodies serves only a revenue preservation function and as such cannot justify an incursion on the fundamental freedoms. Professor Seer finds an inevitable tension here. The tax surrogate theory survives as the best justification for charitable donation deductions, notwithstanding the ECJ’s jurisprudence. Thus, the theory that undergirds the national legislation in the first place is at odds with the result under ECJ decisions that such national legislation be applied in a non-discriminatory fashion.

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  Hubs and Spokes: The Transformation of the British Prison

  Emma Kaufman

  The foreign national prisoner crisis began in 2006. On 25 April of that year, British Home Secretary Charles Clarke announced that over the preceding seven years more than 1,000 ‘non-citizens’ had been released from prison without being considered for deportation. Clarke’s revelation prompted a media frenzy: ‘Home Office Blunders Left Foreign Rapists in the UK’; ‘We May Never Find Foreign Murderers and Rapists’; ‘Foreign Criminals “on the Loose”’. Even the relatively staid BBC ran a series of stories describing how ‘foreign criminals’, notably ‘murderers and rapists’, had been ‘allowed to walk free’. Ten days later, Clarke was dismissed. The Home Secretary’s dramatic departure provided a superficial conclusion to the prisoner ‘crisis’. Behind the scenes, however, the scandal continued long after the presses stopped. In the weeks and months following Clarke’s dismissal, the government initiated a wide scale restructuring of both its migration control apparatus and its prison system. These efforts culminated in a broad new policy on foreign national prisoners, which establishes special prisons for ‘non-citizens’ and deputizes prison staff to act as quasi-immigration agents. Dubbed ‘hubs and spokes’, the new policy also ‘embeds’ immigration officials in penal institutions and obliges prisons to hold prisoners beyond the length of their criminal sentences. This chapter asks how such an expansive penal policy came to pass and what it can tell scholars about the meaning of imprisonment. How and why did hubs and spokes develop from a heated political scandal? What does this story reveal about the relationship between immigration and incarceration? How do policies like hubs and spokes affect the purpose of the prison? These questions guide the chapter and, in the process, situate a relatively short lived political scandal within a wider set of concerns about the regulation of mobility in a global world. Drawing on a year of fieldwork in and around five men’s prisons, I examine both the origins of the prisoner ‘crisis’ and its aftermath in penal policy and practice. Ultimately, I argue that the prison is a key—and too often overlooked—site for migration control.

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  Gender and Punishment

  Emma Kaufman and Mary Bosworth

  Gender is strangely missing from studies of punishment and society. Outside the work of a few scholars, all of whom are women writing about women, gender is usually ignored or relegated to the footnotes of this field of scholarship. To be sure there are some exceptions—Ben Crewe’s (2009) recent account of prison life in HMP Wellingborough contains a number of references to masculinity, as does Eamonn Carrabine’s (2006) genealogy of the Strangeways’ prison riot. Fifteen years ago, Joe Sim (1995) warned of the dangers of the ‘hypermasculinity’ that, he said, was endemic in prisons. In general, however, those authors most associated with the study of punishment and society—David Garland, Jonathan Simon, Dario Melossi, Loïc Wacquant—have apparently seen little explanatory or analytic value in gender. This article sets out to explain why gender matters and how gender theory, in particular, might inform critical accounts of punishment. To do this, we begin by mapping the themes of contemporary gender studies, a diverse and evolving field. We first examine the emergence of women’s studies, its divergence from gender studies and queer theory, and the connections between feminist work and questions about race, class and sexuality. We then trace the presence and absences of those ideas in contemporary studies of punishment and society. This brief genealogy reveals notable gaps in criminological writing on gender and punishment, particularly around key concepts in feminist and queer theory. We explore those overlooked concepts in the context of wider debates about criminological methodology, asking how the study of punishment would shift if gender were a more prominent site of enquiry. This concluding turn to methodology aims to bring questions about gender into the compelling debate about how and why scholars examine the wider social context of punishment practices. This enquiry has been described as ‘the sociology of punishment’, the study of ‘penality’ and in this volume, as a key part of the field known as ‘punishment and society’. Our task is to situate gender within that sociological line of thought. Our aim, in short, is to explore what happens when gender is placed at the centre rather than at the periphery of criminological analysis.

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  The Prison and National Identity: Citizenship, Punishment, and the Sovereign State

  Emma Kaufman and Mary Bosworth

  Settler countries have always built prisons as one of their first orders of business, not only to hold offenders but also to mark out the symbolic and actual limits of the nation state. In periods of conflict, new institutions of confinement spring up to hold enemy combatants, displaced refugees and prisoners of war. As immigration and crime control measures have intersected over the last decade, prisons in a number of countries have ended up housing a growing population of foreign national offenders and immigration detainees. Today, in the USA and in England and Wales, foreign national prisoners whose criminal sentences have expired can be held indefinitely in prisons and detention centres as they await deportation. Given this range of examples, it is somewhat surprising that criminologists have spent so little time exploring the relationship between imprisonment and national identity. With notable exceptions, scholars almost universally treat the prison as an institution bounded by and contained within the nation state. This chapter seeks to disrupt that tradition of prison studies by drawing on testimonies gathered from a range of custodial institutions in England and Wales. Comparing accounts from foreign national prisoners and immigration detainees, we explore the implications of the global and transnational reach of the prison. Ultimately, we argue that the prison is a site for the construction and contestation of the late-modern nation state. Our claim is both theoretical and empirical. The prison is not only a projection of national sovereignty and an expression of state power. It is also a concrete space where global inequalities play out. Aiming to capture both of these dimensions of imprisonment, this chapter weaves together policy analysis and first-hand narratives. We begin with an account of incarceration trends in Britain, which in the last decade has witnessed significant increases in the foreign national prisoner population and a rapid expansion of the immigration detention estate. The first two sections of the chapter trace these structural developments and highlight some of the many convergences between immigration and criminal imprisonment. The next section examines these systems of incarceration in the context of feminist and post-colonial theory. Using interviews we conducted in prison and detention centres, we draw out the voices and experiences of incarcerated ‘foreigners’ to explore how the practice of imprisonment creates an exclusionary vision of British national identity. In the end, this chapter argues that any answer to the question ‘why prison?’ must begin from critical assessment of the relationship between punishment, citizenship and sovereignty.

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  Roles of Law in the Regulatory States of the South

  Benedict Kingsbury and Megan Donaldson

  The rise of the ‘regulatory state’ in the North Atlantic world is often associated with ‘a process by which economic management becomes “proceduralised” . . . characterised by an increasingly rule-based, technocratic and juridical approach to economic governance’. Legalization overlaps with proceduralization, but legalization can have significant substantive and systemic as well as process dimensions (and conversely, much proceduralization takes place outside law). International bodies, such as the World Bank, which promote the creation of independent regulatory agencies (IRAs) and other elements of a regulatory state model in developing countries associate regulatory state reforms with the rule of law, purvey them through a language of governance (transparency, accountability, even participation) that derives force from its association with public law, and deploy ‘good governance’ indicators to measure the quality of national legal institutions. The chapters in this book invite consideration of the questions of how far legalization has in fact been a concomitant of the rise of regulatory states in distinct forms in developing countries, and what exactly such legalization has consisted of. Law has long figured in some way in the arrangements for provision of utilities services in most countries. Even state-owned utilities with service provision managed by departments of government (often, in the cases of electricity or piped water, based on decades-old arrangements with colonial-era governance models) were frequently subject to laws and administrative regulations defining entitlements of households or businesses to access services, or at least specifying lawful means of enforcing payment or compliance with conditions of access. Privatization or corporatization of state providers, the entry of private operators to compete with former monopolies, and regulatory cultures associated with newer technologies such as mobile telephones and internet services, have typically been accompanied by legal innovation and greater roles for law (at least formally). Law is integral to the construction of much of the apparatus of the regulatory state (establishing contractual arrangements, constituting regulatory authorities, and prescribing their modes of functioning); to defining and adjusting the relations between corporations, consumers, and regulatory authorities, and between regulatory authorities and the executive; and to courts or other legal institutions resolving disputes arising out of the regulatory process. Although legalization is often seen as a unitary phenomenon in relation to regulation, and associated with a certain set of ideals (including ‘rule of law’ and property rights), the case studies complicate this picture by illuminating several diverging ways in which the shift to a regulatory state may interact with particular aspects of law or legal institutions. Our reading of the case studies suggests it may be helpful to distinguish between at least four different phenomena involved in ‘legalization’: I. The use of structures or vocabularies of law (as opposed to, say, economics, morality, tradition) as a technique of governance. II. The practice, role and relations of ‘legal’ institutions such as courts, arbitral tribunals, and administrative agencies, together with the private bar, government counsel, and attorneys-general. III. The use of particular forms of law (whether norms are contained in treaties or contracts, executive decrees or statutes; whether they take the form of detailed prescription or general principle and so forth). IV. Implications for the content of law at various different levels of abstraction (such as shifts in the importance of certain bodies of law vis-à-vis others, and the development of new norms within particular bodies of law). This commentary elaborates briefly on each of these four phenomena, drawing out some examples from the case studies, and identifying questions for further research. We suggest that it will be useful in future research not only to assess the significance (vel non) of legalization as an overall phenomenon in regulatory states in the South, but to ask more focused questions about what legal vocabularies are in play, how they relate to alternative vocabularies (such as economics, and econo-legal hybrids), what kinds of legal institutions and instruments are most central to particular regulatory systems, and what changes are observed to the substantive content of law. Breaking ‘legalization’ into a cluster of distinct phenomena, and trying to assess the range of changes within each that may be associated with the shift to the regulatory state, is likely in turn to help address whether, or how, law is distinctive among the panoply of available vocabularies, institutions, and governance techniques, and to give more critical purchase on notions such as ‘legalization’ and the ‘rule of law’ in regulatory systems.

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  Economic Analysis of Joint and Several Liability

  Lewis A. Kornhauser

  A plaintiff sometimes has a common claim against multiple parties. In some of these instances, each defendant may be jointly and severally liable for the plaintiff’s harm. In others, the liability of each defendant is several only. Under joint and several liability, each defendant is liable for the entire harm though the total (judicial) recovery by the plaintiff is limited to the total harm. Under several-only liability, by contrast, each defendant is responsible for only her portion or share of the harm. The regime of joint and several liability has great practical importance as well as significant and subtle legal and economic consequences that were largely unnoticed prior to the use of economic analysis. Prior to the economic analyses of joint and several liability, conventional wisdom identified two major differences between regimes of joint and several liability and regimes of several-only liability. First, joint and several liability reallocates the cost of potential insolvency of a defendant from plaintiff to the solvent defendant. Second, under several-only liability, the plaintiff must collect from each (losing) defendant, while under joint and several liability, the plaintiff need only collect from a single defendant. Joint and several liability, thus, depending on the precise details of the legal regime, either reallocates the cost of collection from plaintiff to the defendants or reduces those costs. The economic analysis of joint and several liability confirmed the second claim, but modified our understanding of the first largely because economic analysis also revealed an important, and hitherto unnoticed difference between the regimes: the regimes affect the value of the underlying claim. Specifically, the expected value of a claim is at least as great, and generally higher, under joint and several liability than under several-only liability. The higher claim value under joint and several liability alters not only the risk of insolvency, but also the ex ante decisions of the defendants to take care. Joint and several liability applies to important classes of torts and other wrongs. In most medical malpractice actions, the plaintiff sues multiple parties; an adverse outcome from surgery may provoke litigation against the surgeon, the anesthesiologist, the hospital, and one or more nurses. Each of these defendants, if negligent, is jointly and severally liable for the plaintiff’s injury. Similarly, under the antitrust laws in the United States, firms that agree to fix prices are jointly and severally liable for treble damages that such price fixing cause. In the environmental area, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) imposes joint and several liability for the cost of remediating contamination caused by hazardous waste on past and present owners of the contaminated site, the generators of the hazardous waste, and those who transported the waste to the site. In the United States, the federal securities laws imposed, until 1995, joint and several liability on both the corporation and its auditor for knowing or reckless material misstatements of fact in the firm’s financial statements. Today, the firm can be held jointly and severally liable with any responsible officers or directors for securities fraud. These examples cover a wide variety of legal and economic relations, each of which has distinctive features, both legal and economic. The economic literature explains how some of these variations in the underlying transactions lead to different behaviors, but many differences remain unexplored. A brief review now, however, may help to delineate the scope of this survey. Three distinct reasons argue for the imposition of joint liability on multiple tortfeasors. First, one joint tortfeasor may serve as an insurer of another. This justification is often invoked when commentators note that joint and several liability shifts the risk of insolvency of one tortfeasor from plaintiff to the other tortfeasor. In some contexts, however, insurance may serve as a primary reason for the imposition of joint liability. The second, and perhaps the classic reason the law imposes joint liability, states that it is when the harm is “indivisible” in order to deter wrongdoing. Consider two related hypotheticals. In the first, two people, Row and Column, go hunting. Row carries a shotgun and Column carries a rifle. They observe motion in the brush and discharge their weapons, striking and killing plaintiff. Plaintiff would have died had either hunter struck him alone: his injury is indivisible. Each defendant is jointly and severally liable for plaintiff’s injury. In the second hypothetical, the situation is identical except that Row negligently wounds plaintiff’s arm and Column negligently shoots his leg. Now the harm is divisible. Row is responsible only for the wounded arm while Column is responsible only for the wounded leg. Deterrence argues that joint and several liability applies in the case of indivisible harm, while several-only liability apply to the case of divisible harm. In the former case, each defendant has acted wrongly. To deter her conduct, she must internalize the cost of her action; joint and several liability partially accomplishes this goal. In the case of divisible harm, each defendant acted wrongly but each caused a separate injury; consequently each internalizes the appropriate costs under several-only liability. Of course, many instances in which joint and several liability applies fall between these two categories. In the hazardous-waste scenario, for example, harm is indivisible but the actions of each party exacerbated the total amount of harm suffered.

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  Contracts between Legal Persons

  Lewis A. Kornhauser and W. Bentley MacLeod

  Contract law and the economics of contract have, for the most part, developed independently of each other. While contract law has existed for centuries, if not millennia, the economic analysis of contract is both very recent and largely divorced from the content and structure of contract law. Current reviews of contract theory, such as Laffont and Martimort (2002) and Bolton and Dewatripont (2005), do not discuss either the substantive law of contract or the role that courts play in enforcement. In this chapter, we begin to bridge this gap. We briefly review the notion of a contract from the perspective of a lawyer and then use this framework to organize the economic literature on contract. The review thus provides an overview of the literature for economists who are interested in exploring the economic implications of contract law. The title, “Contracts between Legal Persons,” limits the review to that part of contract law that is generic to any legal person. A legal person is any individual, firm, or government agency with the right to enter into a binding agreement. Our goal is to discuss the role of the law in enforcing these agreements under the hypothesis that legal persons have well defined goals and objectives. The possession of well-defined preferences does not imply that legal persons never make mistakes. In fact, a key ingredient to understanding the observed form of contract law requires the introduction of some imperfections in decisionmaking. Since the seminal work of Herbert Simon (1982), there has been little disagreement that a complete understanding of human institutions requires the incorporation of errors in decisionmaking. However, there is little agreement regarding the best way to achieve this goal. In this review, we follow the widely accepted hypothesis that imperfect and asymmetric information are key ingredients of any theory of contract form. We show that these elements are sufficient to tie together the various strands of the literature. We then outline a plan for future research. The review is divided into three substantive parts. Section 2 focuses on the primary legal concepts on which contract law rests—including the notion of a legal person and what is meant by an enforceable agreement. We focus on the substantive remedial regime that determines how contracts are enforced and on two features of the process of adjudication—fact-finding and interpretation—that determine what obligations the parties have and when they have been breached. Section 3 examines how the implicit assumptions underlying the economic literature on contract compares to the substantive law of remedy. Economic models of contract make stylized assumptions regarding how the law enforces contracts. In many cases, these assumptions are consistent with existing law. In some cases, particularly when the contract requires a person to act in a particular way, the implicit assumptions are inconsistent with existing law in such jurisdictions as the United States. This inconsistency is manifested in some recent work that builds on results in mechanism design. The same inconsistency may help explain, as Tirole (1999) observes, the gap between the predictions of these models and observed contract forms. In addition, Section 3 discusses the literature on economic analysis of law that begins to bridge the gap between the spare assumptions on remedial regime in the economic literature and the complexity of the law. Section 4 discusses the sparse literature on fact finding and interpretation. This literature asks two questions: 1. When parties write an incomplete contract, how should a court determine the obligations that the parties have? 2. How do courts find facts? In terms of the economic literature, what is the technology of verification? Section 5 concludes the chapter. We deploy the conceptual scheme of contract law summarized in Section 2.2 to organize a summary of the literature on the economics of contract. Our characterizations of some of the underlying economics literature may thus seem a bit askew, but we hope that the legal perspective will open additional avenues of research.

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  No to a Transfer Union, Yes to an Economic Justice Union

  Mattias Kumm

  One thing that economists agree on is that in order to move out of the crisis rather than have it continue indefinitely, losses have to be allocated sooner rather than later. Only once this politically painful step has been taken, can Europe move on. But who should pay for the mess? If the crisis were the result of profligate spending of some states, then it seems logical that these states should bear the burden of their actions before they can count on European support, and that this support should come with strict conditions. This, in effect, is what the ESM and Fiscal Compact are meant to ensure. But if, as is considerably more plausible, the sovereign debt crisis is, to a large extent, the result of a banking crisis, the answer may turn out to be very different. There is something arbitrary about burdening the states in whose jurisdictions the banks requiring bail-outs happen to be domiciled. The banking crisis would not have had the same intensity and structure if it were not for the European common currency and European freedom of capital guarantees. The EU has exercised its concurrent competencies over the area of banking and financial markets and is in the process of deepening its involvement in the sector by the establishment of a Banking Union. Furthermore the bank-bailouts themselves have considerable cross-border positive externalities. Given the interdependence of the banking sector, the failure of major banks in one state would have had difficult-to-control contagion effects across Europe. Under such circumstances, it seems more plausible to allocate financial public sector risks resulting from financial sector failings at the European level. The costs of bank-bailouts are, to a significant extent, the result of genuinely European risks, for which it would be appropriate to hold the European Union, as a whole, accountable. But if the European Union as a whole, rather than individual states like Spain, Ireland or Slovenia, is to be held accountable for the costs of the bank-bailouts, inter-state transfer mechanisms, such as those foreseen by the ESM, should not be used. These costs should be paid for by genuinely European funds, raised by European taxes or levies. The way money is raised and spent comes with its own political presumptions and burdens of justification. It should not be seen as just a neutral technical device. There is something deeply incongruous and misleading in first having individual states bail out banks, and then transferring money from one state to another, so that stronger states end up supporting weaker states. This mechanism misguidedly creates the impression that stronger states have to bail out weaker ones because the weaker ones cannot handle their responsibilities, even when the original responsibility belongs to the European Union. Inter-state transfer mechanisms corrode solidarity in Europe, because they give the misleading impression that one state has to ultimately pay for the failures of another.

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  Can Executive Review Help Prevent Capture?

  Michael A. Livermore and Richard L. Revesz

  Centralized review of federal regulations has become a core institution in the contemporary administrative state. Presidents of both political parties have embraced it, with relatively few changes since President Reagan put in place the basic architecture in 1981. Although the institution of centralized review continues to receive criticism from some quarters, there is broad consensus that it is likely to remain a persistent feature of the administrative state for the foreseeable future. Since its inception, centralized review has been closely linked with theories of agency capture. Many of its most prominent defenders have grounded the legitimacy of regulatory review in fears that unchecked agencies will be systematically biased in the exercise of their powers, including by accommodating powerful special interests to the detriment of general social welfare. According to this line of thinking, centralized review facilitates presidential control over agencies, which helps to ensure that administrative action is responsive to the broad national constituency represented by the president rather than to parochial special interests. There are two important problems with this account. First, the background assumption of the conventional account – that the president responds to a national, rather than parochial, constituency – is overly simplistic. Presidents respond to a range of incentives that may not be well aligned with the broad national interest. More important, the Office of Information and Regulatory Affairs (OIRA), which is charged with carrying out centralized review, is not the functional equivalent of the president. Even if increased presidential control is desirable, it is not obvious that OIRA review always achieves this goal. This does not mean, however, that OIRA cannot and does not play an important role in mitigating the threat of agency capture, but it does so for four reasons unrelated to proximity to the president. First, because OIRA is a generalist institution, it is more difficult to capture than a single-issue agency. By creating a generalist body like OIRA to oversee agency decisions, the institutional structure of centralized review can reduce the potential influence of special interest actors on regulation. Second, OIRA often plays a coordinating role, bringing together different agencies, which are each likely to be influenced by different interest groups. Because this coordination function requires interest groups to capture multiple agencies involved in decision making, it reduces the ability of any one interest group to dictate decisions, by raising the cost of capture. Third, cost-benefit analysis, which is the standard used to conduct regulatory review, is a professionally accepted methodology that is available for public scrutiny. It therefore acts as a check against capture by raising the risk of detection for agencies tempted to massage the economic analysis in response to interest group pressure. Finally, there is a tradition of appointing relatively independent individuals without strong connections to special interest groups to run OIRA, which helps reduce the threat of capture. Two steps can be taken to expand this anti-capture role. First, retrospective review can require interest groups to continually reinvest in capture to ensure their preferred regulations are not amended or rescinded, which in turn decreases the return on investment of capture and acts as a disincentive to agency capture. A recent retrospective review process initiated by the Obama Administration, however, has focused too much on cost cutting, rather than net-benefit maximization, creating the risk of antiregulatory bias. This process should be reformed to be more balanced, examining how agencies can increase benefits as well as reduce costs. Second, OIRA should expand its review of agency inaction. In large part, OIRA has focused its review on agency action, examining major rules that are proposed by agencies before they are finalized. There has been significantly less review of agency inaction – that is, of the cases where net benefits could be generated through rulemakings in new areas. This bias has historical roots in the original conception of OIRA as a check against overzealous regulators. However, because an agency’s failure to act can be as detrimental to social well-being as overactivity – and can just as easily result from agency capture – it is important that OIRA establish an institutional mechanism to ward against both kinds of failure. This chapter proceeds in three parts. The first part provides a brief overview of the thirty-year history of OIRA oversight of agency rulemaking, discussing and criticizing traditional capture-related justifications for OIRA review. The second part examines the features of OIRA that suggest it can reduce capture risks, focusing on its role as a generalist body, its coordinating function, the nature of cost-benefit analysis, and the tradition of drawing OIRA directors from the academic community rather than from interest groups. The final part of this chapter discusses steps that can be taken to improve regulatory review with an anti-capture role in mind.

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  Matters of “Trifling Moment”: New Netherland and the New York Tradition of Arbitration

  Troy A. McKenzie and Wilson C. Freeman

  When legal scholars look to the past, they evaluate what they learn in the light of present‑day practice and dispute resolution. The Dutch in New Netherland had a robust arbitration tradition that may be compared to our present arbitration system. Troy McKenzie and Wilson Freeman examine the practice of arbitration, explaining how it worked in New Netherland, and the lessons it gives us. The chapter traces the utility of arbitration as an adjunct of the judicial system, comparing today’s use of arbitration with that in New Netherland.

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  The Presumption of Constitutionality and the Individual Mandate

  Gillian E. Metzger and Trevor W. Morrison

  The tax power question in NFIB was both statutory and constitutional, with the decision whether the ACA’s individual mandate fell within Congress’s tax power turning on whether as a matter of statutory construction it could be construed as simply taxing the decision not to purchase insurance. Resolving that question involved a choice between two constitutionally based rules of statutory construction: that statutes should be construed to avoid serious constitutional doubts, and that Congress must clearly invoke a head of legislative authority before it will be deemed to have exercised it. The Chief Justice embraced the first rule; the joint dissent implicitly chose the second. The Chief Justice’s choice was correct, but he should have acknowledged more forthrightly that statutory interpretation can be a mode of constitutional implementation and should have framed his analysis around the bedrock principle of judicial review known as the presumption of constitutionality.

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  Group Litigation in the Enforcement of Tort Law

  Geoffrey P. Miller

  Legal systems in the United States and elsewhere provide mechanisms for consolidating similar claims in a single proceeding. These forms of group litigation—the American class action being the best known—tend to be used in cases where the plaintiffs have common claims and each individual plaintiff’s stakes are small relative to the litigation costs of the suit. We may evaluate any litigation procedure with respect to three criteria for optimal tort liability. First, in the case of negligence liability, the applicable legal rules should ensure that negligent injurers internalize the expected cost to victims of the injurers’ failure to take due care and that non-negligent injurers are not held liable. Second, rules and processes should, all else equal, promote risk spreading and compensation by enabling victims with good cases to recover while precluding recovery for those who do not have good cases. Third, litigation rules should, all else equal, minimize victims’ recovery costs. A challenge for legal design is to maximize the net benefits of this type of litigation by taking each of these three concerns into account. This chapter examines three settings in which group litigation can offer redress for harms due to tortious conduct: (a) consumer litigation for torts involving large numbers of small claims; (b) actions for securities fraud; and (c) actions involving large-scale injuries to persons or property (mass torts). Different forms of group procedures may be used to enforce legal rights in each of these three settings, the most important types being class actions, aggregate non-class litigation, and representative litigation based on the European model. This chapter first considers potential efficiency benefits of such litigation in terms of conserving litigation costs, improving deterrence, and providing compensation for harm. I then turn to the question of agency costs, examine the degree to which representative plaintiffs, courts, objectors to settlements, and government agencies can monitor class counsel, and consider the degree to which attorneys’ fees rules can incentivize counsel to provide vigorous and un-conflicted representation to members of the litigation group. The chapter argues that class actions and other procedures for group litigation offer the potential for improving social welfare by generating economic benefits that exceed their costs, but that this potential has not been fully realized to date.

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  In Defense of a Liberty-Based Account of Discrimination

  Sophia Moreau

  Recently, legal theorists such as Deborah Hellman and Tarunabh Khaitan, have suggested that a deep distinction can be drawn between two types of theories about when and why discrimination by governments is wrongful. In her chapter in this volume, Hellman calls these two types of theory “equality-based views” and “liberty-based views”. A theory is “equality-based”, on her understanding, if it explains why discrimination is wrongful by appealing to the principle that the state must treat everyone with equal concern and respect. Such views direct courts to assess whether discrimination has occurred by asking whether the challenged law or action has failed to treat some people with equal concern and respect. By contrast, theories that are “liberty-based” appeal ultimately to each person’s right to have certain freedoms, such as the freedom to marry the person you love and to make decisions about your life together without being constrained by traits that are extraneous under the circumstances, such as your sexual orientation. Liberty-based views require courts to assess whether discrimination has occurred by asking whether the claimant really is entitled to the freedom in question, and this normally requires asking whether the allegedly extraneous trait (such as sexual orientation) really should be treated as extraneous in these circumstances—that is, whether it really should be seen as irrelevant to the institution or the decision in question. And partly for this reason, Hellman argues that liberty-based views face a fundamental problem, one which she thinks equality-based views do not face. Liberty-based views require courts to make judgments about the nature and purpose of certain social and political institutions (for instance, judgments about the nature of marriage, or the purpose of universities, or the proper boundaries of a public health care system). This is problematic, according to Hellman, because in a liberal democratic society courts should aim, as far as possible, to decide cases without presupposing controversial value judgments that some reasonable citizens might not accept. Courts should, in her words, aim to decide cases only on the basis of “thin” normative principles, those which all reasonable citizens would accept regardless of their differing moral views. One of my aims in this chapter is to offer a defense of one type of liberty-based view. I shall try to convince you, in section III of the chapter, that if we are to understand the complaints of people who face discrimination, we have to appeal at least in part to certain freedoms they have been denied. But before I do this, I want to respond to Hellman’s critique of liberty-based views. I shall try to show that there are at least three problems with this critique. First, the allegedly deep distinction between equality- and liberty-based views is not as deep as it appears: liberty-based views, too, can be understood as attempts to make sense of the value of equality. Second, it is not true that liberty-based views of discrimination require courts to presuppose any more controversial normative judgments than do other conceptions of discrimination. To show this, I shall take as my examples my own liberty-based view and Hellman’s expressivist view. I shall argue that both views require courts to make certain judgments about the nature and purpose of social institutions, but that this is not problematic from the standpoint of a liberal democracy because these particular normative judgments do not presuppose that the institution in question is morally sound or necessary to society. Third, I shall suggest that even if I am wrong about this, the most that this kind of argument could show is that the right not to be discriminated against is not the kind of right that can legitimately receive constitutional protection in a liberal democratic society. That is, even if it were correct that liberty-based views require courts to make certain controversial moral judgments, this would not show that liberty-based views are mistaken. It would show at most that, on a liberty-based view, anti-discrimination law could not be a part of what Rawls calls “the basic structure” of society, since it could not command the assent of all reasonable citizens. But this does not imply that discrimination cannot receive any legislative protection; and it does not imply that liberty-based views are incorrect.

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  Familial Searches of DNA Databases

  Erin E. Murphy

  The continued growth of forensic DNA databases has brought about greater interest in conducting searches for “familial,” “kinship” or “partial” matches. Whereas a typical database search seeks the source of a stain by finding an exact match between a known person and a crime-scene DNA sample, familial searching instead looks for partial matches in order to identify potential relatives of the source. Familial DNA searches have long been conducted in the United Kingdom, and there has been increasing interest in the technique in the United States and in other nations. This chapter, which is adapted from a longer article titled Relative Doubt: Familial Searches of DNA Databases (109 Michigan Law Review 291 (2010)), argues against the practice of familial searching on a variety of grounds, including claims related to equality, accuracy, privacy and democratic accountability. However, in the event that arguments to prohibit the practice prove unpersuasive, this chapter sets forth recommendations for restrictions on familial searches that might ameliorate their possible iniquitous effects.

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  David H. Souter

  Burt Neuborne

  David Hackett Souter served as the 105th justice of the U.S. Supreme Court for almost 19 years, from October 8, 1990, to June 28, 2009, replacing the great liberal stalwart, William J. Brennan, Jr., Souter's nomination by President George H. W. Bush, who had campaigned in 1988 against an unduly “activist” Supreme Court, was thought by many to herald a dramatic shift in the Supreme Court's balance of power, endangering constitutional protection of abortion under Roe v. Wade, 410 U.S. 113 (1973), and placing many of the path-breaking decisions of the Warren Court at risk. In fact, within two years of his appointment, Souter saved Roe by authoring the portion of a celebrated joint opinion for himself and Justices Sandra Day O'Connor and Anthony M. Kennedy in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that invoked respect for past Supreme Court precedent, especially precedent recognizing constitutional rights, to preserve a slightly scaled-down version of Roe. Souter went on to become a major proponent of the importance of adherence to Supreme Court precedent, including Warren Court precedent, and a principal intellectual adversary of Justice Antonin Scalia in the philosophical struggle over how to interpret statutory and constitutional text. The conventional story is that President Bush, in accepting the urgings of White House chief of staff John Sununu and Senator Warren Rudman to appoint their New Hampshire neighbor, made a major political miscalculation in selecting a closet liberal who betrayed the president by increasingly voting with the Court's liberal wing. Following the conventional story, ideological conservatives have vilified Souter as a turncoat, while ideological liberals have welcomed him as a lukewarm convert. It is, however, both inaccurate and misleading to apply a political litmus test as the measure of Souter's career as a Supreme Court justice. As much as any justice in modern times, David Souter sought to avoid mixing politics and judging. In fact, Souter ran from politics. His aversion to the political spotlight bordered on eccentricity. After becoming a New Hampshire trial judge in 1978, Souter does not appear to have expressed a political idea in public. Instead, Souter self-consciously sought to forge a Supreme Court jurisprudence divorced from politics. He saw himself not as a political figure, but as a faithful agent of the legislature and the Founders, whether or not he agreed with their commands, and as a faithful steward of past judicial decisions, adhering to past precedent whether or not he would have voted the same way. Souter recognized, of course, that in many cases, the commands from text and precedent are ambiguous. In those settings, he struggled to understand the democratic purpose underlying the ambiguous text, or the judicial principle animating the ambiguous precedent, and then sought to resolve the case before him in a way that advanced that democratic purpose or judicial principle. When all else failed, he invoked nonpolitical tiebreakers, such as deference to administrative construction, the canon of constitutional avoidance, and the canon of lenity, to avoid political tie-breaking. The result is a body of Supreme Court decisions that do not fit neatly into any political category. In pursuing the twin goals of advancing democratic purpose and respecting judicial precedent, Souter sought to develop a jurisprudence of political neutrality championed by his Harvard Law School professor, Henry Hart, founder of the Legal Process School, and by Souter's two judicial idols, John Marshall Harlan, Jr., and Oliver Wendell Holmes. Souter's 19 years of intense judicial effort sought to take Henry Hart's Legal Process theories from the classroom into the real world. While the jury is out on whether he fully succeeded, if David Souter could not do it, perhaps it cannot be done. American legal theory about the art of judging is currently trapped between two extremes—a nihilism that views judges as politicians in black robes who make their minds up politically and then build a façade of legalisms to justify the outcome, and a formalism that reduces judging to a robotic exercise in reading dictionaries and deferring to law office history. David Souter sought a middle way. He believed that by using the traditional common-law tools of purposive interpretation of text, principled deference to precedent and intellectually honest history, and respect for fundamental values of adjudicative fairness, it was possible to build a stable jurisprudence that is respectful of democracy, faithful to the past, and open to the future.

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  Lewis F. Powell, Jr.

  Burt Neuborne

  Supreme Court Justices, at least in the modern era, have not been drawn from the ranks of the nation's preeminent practicing lawyers. The path to the Court has not been a brilliant career in practice but success In politics, government service, or, increasingly, service on a lower court bench. Earl Warren and Hugo Black came to the Court directly from electoral politics. William Douglas, Byron White, Arthur Goldberg, and William Rehnquist each held appointive office in the executive branch immediately preceding appointment to the Court. William Brennan, Potter Stewart, Harry Blackmun, Warren Burger, John Paul Stevens, Sandra Day O'Connor, David Souter, Antonin Scalia, and Anthony M. Kennedy all served as lower court judges in the state or federal systems for varying periods before being promoted to the Court. While each recent appointee practiced law at some time before being chosen for the Supreme Court, only two—Lewis F. Powell, Jr., and Thurgood Marshall—can be said to have earned a place on the Supreme Court because they were consummate practitioners of the lawyer's art. Thurgood Marshall was one of the nation's leading civil rights lawyers before entering public life. But his civil rights experience differed dramatically from Lewis Powell's corporate practice. As counsel to a broad social movement, Marshall looked to the courts for change. He sought sweeping doctrinal assistance designed to aid a category of similarly situated persons, only some of whom were actually before the Court. As a business lawyer, Powell viewed the law not as an engine of social reform or as politics by another name but as an analytically precise aid in resolving disputes in a predictable, pragmatic manner. For Powell, the law was a stable matrix within which to plan future action. Moreover, as a superb business lawyer, he understood that the enduring resolution of an ongoing dispute must, whenever possible, respect the core interests of each participant. Justice Powell was shaped by lawyer Powell. The cast of mind and habits of thought he cultivated during 35 years of successful private practice followed him to the Supreme Court. During his 15-year tenure from January 7, 1972, to June 26, 1987, Justice Powell authored more than 500 opinions, 254 of them for the Court. His lawyer's instinct for the pragmatic center repeatedly positioned him in the role of swing justice, mediating between the Court's ideological wings. Operating from the center, Powell often cast the balance-of-power vote that controlled the Court. His knack for being on the winning side never dropped below 80 percent in any term, and often exceeded 90 percent. In the 30 often closely divided religion clause cases in which Powell participated, he was on the winning side in every one. As a justice, Lewis Powell was cautious, precise, pragmatic, skeptical of bright line distinctions and doctrinaire solutions, mistrustful of governmental interference in private affairs, and, above all, committed to rigorous logical analysis as an aid to predictability and a guarantor of principled decision-making. In short, the very model of a modern private lawyer. His characteristic approach was to focus on the actual facts of the case before him; to identify with precision the competing interests of the parties; and, if possible, to evolve a moderate solution respectful of the core concerns of each. Only after he satisfied himself that the core concerns of the parties were in irreconcilable conflict would he openly balance one set of interests against the other and determine which should take precedence. Such a balancing process is, of course, necessarily subjective. In Justice Powell's case, it reflected a personal reluctance to substitute his judgment for the judgment of legislators and administrative officials—unless deeply felt traditional values such as free speech, family life, or property rights were threatened. When Powell perceived a threat to traditional values, he did not hesitate to use the full power of the judiciary in their defense. At several critical junctures in his tenure on the Court, however, Powell declined to lend his support to efforts to extend the Constitution's protection in nontraditional directions. Two pairs of cases illustrate Justice Powell's complex and enigmatic constitutional jurisprudence. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), he declined to recognize education as a fundamental right or wealth as a suspect classification, upholding the exclusive use of local property taxes to fund public education despite the resulting wide disparities in educational resources available in rich and poor neighborhoods. But in Plyler v. Doe, 457 U.S. 202,239 (1982) (Powell concurring), he ruled that education was so important that states could not bar the children of undocumented aliens from the public schools. Similarly, in Moore v. City of East Cleveland, 431 U.S. 494 (1977), Powell trotted out the heavy artillery of substantive due process to protect the constitutional privacy rights of members of an extended family to live together. But in Bowers v. Hardwick, 478 U.S. 186 (1986), Powell's crucial concurrence was the fifth vote that declined to grant constitutional privacy rights to homosexuals.

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  Missing Indicators, Disappearing Gender: Measuring USAID's Programming to Counter Violent Extremism

  Margaret L. Satterthwaite

  This chapter examines a curious and conspicuous lack of gender-sensitive metrics and indicators in the new fi eld of development assistance aimed at countering violent extremism (CVE). This absence is striking in the increasingly data-driven development world, where policies of the leading development agencies, including the US Agency for International Development (USAID), often prefer the use of indicator-dependent quantitative and experimental methods to measure change and identify the impact of their interventions. Speculating that the lack of data in this area might stem from gaps in the evidence undergirding the programs, this chapter briefl y considers the concept of “violent extremism”2 and the status of knowledge linking this phenomenon to terrorism, and examines the approach to gender embodied in USAID’s CVE programming. Finding that CVE programming is implicitly gendered but overtly gender-blind, the chapter then sets out a series of tools that USAID and other development agencies could use to analyze the gendered impacts of its work in this emerging area. In conclusion, this chapter suggests that the absence of gendered data is a product of the nascent evidentiary base on which CVE programming is built and a symptom of the implicit but myopic gender theory on which it depends.

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  The Legal Regime Governing Transfer of Persons in the Fight against Terrorism

  Margaret L. Satterthwaite

  Crimes of terrorism are frequently committed by individuals and groups in countries other than those they target. Even when ‘home-grown’ terrorists are responsible for violent acts, they often flee across borders to evade justice. States seeking to punish acts of terrorism therefore regularly need to obtain custody of individuals accused of committing such acts. They may do so by requesting the extradition or deportation of a suspect from a state where the individual is found. States also directly apprehend suspected terrorists in other countries and deliver them to justice before their own or third states’ courts through ‘rendition to justice’. Finally, when terrorism occurs in the context of armed conflict, states may move suspects from one state to another through wartime processes such as the transfer of prisoners of war. In short, states use both formal and informal processes when transferring individuals suspected of terrorist crimes. The practice of rendition—the involuntary transfer of an individual across borders without recourse to extradition or deportation proceedings—is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos ‘the Jackal’ (Ilich Ramirez Sanchez) from Sudan to France. Although such renditions have been controversial in human rights circles, they have been celebrated by many as crucial in the fight against impunity for grave crimes and are sometimes called ‘rendition to justice’. The administration of former US President George W. Bush was criticized for the new practice of ‘extraordinary rendition’—the transfer of suspects to countries known for the systematic use of torture. US officials at the time defended the practice, relying on justifications developed to support ‘rendition to justice’ and arguing that the practice was legal. Despite these justifications, international human rights bodies and intergovernmental bodies including the Council of Europe, the European Union and human rights bodies of the United Nations have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the US legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited. Despite this consensus, the United States is not the only country that appears to have used the practice in the context of counter-terrorism. Reports indicate that governments in East Africa and the Horn of Africa have conducted extraordinary renditions in recent years. Ethiopia has been criticized for allegedly ‘abducting terrorism suspects from other countries’ and subjecting them to torture and secret detention, and Kenya has been accused of abducting and transferring suspects to the custody of Uganda, Somalia and Ethiopia, where they have been subjected to torture or cruel, inhuman or degrading treatment. There is no consensus concerning the practice of informal transfers—renditions of the non-‘extraordinary’ kind—more generally in the context of counter-terrorism efforts. In part this lack of consensus comes from the varied contexts in which informal transfers occur. Such transfers include the movement of individuals captured on the battlefield in Afghanistan to the detention facility at Guantánamo, the transfer of individuals captured in a variety of settings to secret offshore detention centres, the transfer of individuals detained by one state to the custody of their own state of nationality (sometimes for trial, but often simply for detention), and the transfer of individuals to the territory of the transferring state to stand trial before a regular criminal court. Soon after US President Barack Obama was inaugurated in January 2009, he promised to end the most severe human rights violations carried out by the US government in the name of fighting terrorism, including the use of torture and secret detention facilities. Although he signed Executive Orders ending the use of such practices, he did not order the cessation of rendition, defined as the transfer of an individual without the benefit of judicial or administrative proceedings. Instead, he formed a Task Force to examine the issue and to compile recommendations about how the process could be brought back in line with US law and international obligations. In July 2009, this Task Force recommended some improvements in the use of diplomatic assurances—promises from countries receiving detainees upon which the United States has relied when transferring individuals to states where they may face a risk of torture. However, the Task Force did not recommend any significant reform of rendition itself. The US practice of rendition has continued, and along with it controversy over the practice, since many governments have critiqued the US use of rendition while failing to formulate clear policies for their own actions in connection with the transfer of terrorism suspects.

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  Oversight of National Security Secrecy in the United States

  Stephen J. Schulhofer

  In a constitutional system, the legislature is expected to play an active role in formulating policy, and the courts are expected to play an active role in protecting individual rights. But nonetheless, where issues affecting national security are concerned, executive officials in virtually all constitutional democracies typically exercise unchecked power to conceal information that is essential to the effective exercise of those legislative and judicial functions. In its actual practices, the United States (US) largely conforms to this pattern of de facto executive dominance, even though its formal laws grant substantial power to regulate secrecy to Congress and the courts. Although some secrecy in national security matters is appropriate and inevitable, unilateral executive control over decisions whether to impose secrecy is not. American law provides five separate processes for overriding executive secrecy judgments. Along with semi-independent review within the executive branch and oversight by Congress, three distinct bodies of law grant a checking function to the courts: the Classified Information Procedures Act (CIPA, applicable in criminal cases), the state secrets privilege (SSP, applicable in civil suits), and the Freedom of Information Act (FOIA, a statute that creates a free-standing cause of action to demand disclosure of information held by the government). These five systems differ considerably in the degree to which they involve deference to the executive, or—in contrast—active, independent judgments about the need for secrecy. American law thus provides broad scope to compare competing approaches. In addition, where American adversary procedures for the review of executive-branch secrecy are at their height (in CIPA), they permit full-fledged representation by security-cleared counsel, a more vigorous checking capability than appears possible through the ‘special advocate’ approach favored in the UK. This chapter describes these American oversight systems and assesses them by focusing on the expertise and incentives of the participants in each. Executive control over sensitive information presumes a unique and highly specialized executive expertise, a notion not only touted by the intelligence community but widely accepted by members of Congress, judges and the general public. Yet this common conception involves a mixture of truth, hyperbole, misunderstanding and myth. The executive branch is not the exclusive repository of the knowledge and experience necessary to make sound judgments about when to maintain secrecy in national security affairs. Congress has considerable expertise in military, foreign policy and intelligence matters. While judges typically do not, courts have solid institutional capacities to elicit expertise. Nor is national security expertise the only proficiency required. Information-access judgments demand an appreciation for the value of both secrecy and transparency. Members of Congress and judges may not have deep familiarity with the former, but they thoroughly understand the latter. National security officials, in contrast, are predisposed by training and experience to abhor transparency; in this crucial expertise they are markedly deficient. Courts therefore have an indispensable place in a sound system for making information-access decisions. They offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are in fact superior in some essential forms of expertise. In one domain of American practice, criminal cases governed by CIPA, US courts routinely provide active oversight of classification decisions, an experience that demonstrates the capacity of the CIPA model to afford a fully adversarial and yet workable judicial check. This chapter builds on this adversarial judicial model and integrates it with a more robust legislative role, in order to propose a framework for effective oversight of executive branch judgments about access to national security information. Section 1 describes the existing executive secrecy apparatus. Section 2 examines the present structure of legislative and judicial oversight, and Section 3 assesses the extent to which Congress and the courts currently are able to prevent unjustified secrecy. As Sections 2 and 3 show, these outside institutions have considerable legal powers, but they now operate under self-imposed, informal constraints; their willingness to thwart improper secrecy is episodic and feeble. Section 4 develops an oversight framework more consonant with constitutionalism—a framework that combines robust national security safeguards with maximum feasible transparency and accountability.

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  Reply: Justice for Victims and Justice for Society

  Stephen J. Schulhofer

  While George Fletcher's book, Rethinking Criminal Law, is justly celebrated as the most widely cited and influential book on criminal law, his articles and essays have been comparatively overlooked. But it is in these essays where Fletcher hones and polishes the themes of Rethinking as well as advances new ground. They are critical in understanding the evolution of his views on criminal law. This volume collects, for the first time, a selection of his most famous previously published shorter works as well as some that are less known but equally important. Each of the twelve essays by Fletcher is paired with one or more new critical commentaries on that essay. These critical commentaries trace the significance of the respective essay in the development of the criminal law and assess its future significance. The commentators include leading criminal law scholars, philosophers, and a judge. Reflecting Fletcher's comparative law focus, the commentators hail from America, England, and Israel. Preceding these paired sets of essays/critical commentaries is an Introduction that broadly assesses Fletcher's body of work and career in criminal scholarship as well as provides an overview of each essay and critical commentary. Concluding the volume is a new, original essay by Fletcher in which he responds to his critics. Fletcher also reflects back on his six-decade spanning career and takes stock. Fletcher's essay concludes with some speculations as to the trend of future developments in the field. In the enterprise of theoretical criminal law, the essays in this book represent the pinnacle of the thinking of one of the fields' most celebrated scholars.

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  Economic Analysis of Punitive Damages: Theory, Empirics and Doctrine

  Catherine M. Sharkey

  Punitive damages have been a part of the civil law landscape in the United States since the nineteenth century, but the past two decades have witnessed a firestorm of renewed interest and debate over this supra-compensatory remedy, whose goals are to punish and to deter wrongful behavior. At first glance, this intense interest may seem puzzling given how rarely punitive damages are awarded. Punitive damages are at the tip of the tip of the iceberg in the civil justice system. The number of cases going to trial is very small, on the order of 3–5 percent of civil cases filed in state court. Of those tried cases, punitive damages are awarded in a small minority—less than 5 percent of cases in state courts. So, what explains the sustained interest in what is, as an empirical matter, a very extraordinary, rarely imposed remedy? First, punitive damages are awarded much more frequently in certain types of cases. Thus, the aggregate 5 percent figure might underestimate the significance of punitive damages, at least for certain categories of cases. In cases of fraud, slander/libel, intentional torts, employment discrimination, and products liability, punitive damages are more common, and are awarded in 12–30 percent of the cases that go to trial. In addition, a recent empirical study has shown that, in tried cases in which the plaintiff prevailed and punitive damages were sought (a variable usually not present in datasets), the estimated overall rate of issue of punitive damages was 29 percent. Second, even if punitive damages are rarely awarded, the magnitude of the awards (known to reach into the millions, and even billions, of dollars) may exert an oversized influence on our litigation system. Defendants (especially if risk averse) will take precautionary measures—perhaps even excessive ones—to avoid facing the risk of a small probability of a very large damages award. Moreover, the infrequency of punitive damages awards may obscure a much larger “shadow” effect on settlements: defendants may be driven to settle rather than face potentially crippling punitive damages. The statistics cited above are taken from comprehensive surveys of state courts around the country, giving rise to a fairly detailed portrait of punitive damages in average, mine- run cases. The datasets are comprehensive and representative, but, as a general rule, have not picked up many of the rare “blockbuster” punitive damages awards that, some argue, are the real problem. So, a raging empirical debate persists, with one camp in the legal academy asserting, based upon state court data that punitive damages are predictably related to the size of compensatory awards and relatively stable over time (Ted Eisenberg and various collaborators), and a competing camp arguing that when the blockbuster punitive awards are analyzed separately, punitive damages awards appear indefensible, or at least not rationally related to compensatory damages. Third, punitive damages, regardless of their frequency or magnitude, maintain scholars’ and practitioners’ active attention because their underlying theoretical justifications raise interesting questions about the very role of the tort system. Punitive damages connote punishment, which, at least initially, would seem to be the domain of criminal law, not the civil justice system. Indeed, punitive damages were historically awarded only in cases of malice or willful and wanton conduct, a subset of intentional tort cases. The paradigmatic case was that of intentional battery or assault, including acts of physical violence and dignitary affronts such as spitting upon one’s adversary. The standard verbal formulations of the doctrine require mental states ranging from “intent to harm without lawful justification or excuse,” to “reckless disregard of the interests of others.” Gross negligence typically does not suffice. With its emphasis on malice and willful and wanton conduct, the conventional definition focused on egregious conduct, or—in economic terms—conduct that substantially deviated from the optimal level of care. A newer generation of punitive damages cases, however, falls outside this narrow band of malicious, intentionally wrongful conduct and deals almost exclusively with the recklessness side of the equation. Indeed, the gradual acceptance of insurance for punitive damages over the last 50 years stems, in part, from the evolution of punitive damages themselves: whereas punitive damages were once awarded predominantly for acts that satisfied malice aforethought or intentional wrongdoing, now many punitive damages awards arise from what was essentially accidental conduct, albeit committed recklessly. This contemporary landscape of punitive damages cases presents new theoretical challenges. Should punitive damages be restricted to malicious or willful and wanton conduct? If not, when is it appropriate to award such supra-compensatory damages in the event of a defendant’s reckless conduct? Should theories treat knowing breaches that create a high risk of injury differently from accidents caused by recklessness? This chapter addresses these issues from one vantage point: the economic perspective. The primary economic rationale for supra-compensatory damages—itself traceable back more than a century to Jeremy Bentham, but not formalized in the specific context of punitive damages until recent decades—is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an actor to take cost-justified safety precautions, then supra-compensatory damages are necessary to force the actor to internalize the full scope of the harms caused by his actions. Alternative economic rationales—disgorgement of ill-gotten gains and enforcement of property rights—have been proposed to align the theory with the historical and conventional focus of punitive damages on intentionally wrongful behavior. The Calabresi-Melamed (1972) property rule/liability rule dichotomy provides one framework for choosing between the loss internalization (liability-rule) and gain elimination/voluntary market transfer (property-rule) models. Notwithstanding its academic prominence, the economic deterrence rationale has not dominated doctrine. In fact, the U.S. Supreme Court has all but rejected economic deterrence, by instead placing increasing emphasis on a competing retributive punishment rationale. But, since punitive damages lie squarely within the purview of state law, state legislatures and courts possess a degree of freedom to articulate state-based goals of punitive damages—such as economic deterrence—even in the face of heavy-handed federal constitutional review imposed by the U.S. Supreme Court.

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  Forum Shopping and Post-Award Judgments

  Linda J. Silberman and Maxi Scherer

  The forum shopping theme around which this book has been developed comes into play in multiple ways in the context of post-award judgments. Post-award judgments can take several forms, depending on whether the award is set aside, confirmed, recognized or enforced. Creative parties may forum shop for a set-aside, confirmation, recognition or enforcement judgment and seek to rely on its effects in subsequent proceedings relating to the same award in another country. The courts in that other country will have to assess the effects they give to the foreign post-award judgment. Our paper examines how courts should respond to such forum shopping attempts. It assesses whether a decision to set aside, confirm, recognize or enforce an arbitral award might affect subsequent attempts to recognize or enforce that award elsewhere. Part II of the paper considers the most straightforward of these issues: what is the role of a court requested to recognize and enforce an award that has been set aside at the seat of arbitration? Should it enforce the award and ignore the judgment of the foreign court? Or should it respect the decision of the foreign court and refuse to enforce the award? Additionally, what criteria should be used by a court in making its decision? The paper offers a tentative hypothesis that a “judgment route”—that is, the use of foreign judgment principles—should be invoked by a national court to assess whether or not to give effect to a foreign set aside. In Part III of the paper, we go on to consider whether such judgment principles have application to other post-award judgments, such as judgments confirming (or refusing to set aside) an award and judgments recognizing and enforcing a foreign award. The paper concludes and explains that the judgment recognition framework does not have application outside the “set-aside” context. Unlike a judgment setting aside an award, which is expressly included as an exception to recognition and enforcement in Article V(1)(e), other post-award judgments are not referred to in the Convention as possible exceptions to recognition and enforcement.

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  Psychic Numbing and Mass Atrocity

  Paul Slovic, David Zionts, Andrew K. Woods, Ryan Goodman, and Derek Jinks

  The twentieth century is often said to have been the bloodiest century in recorded history. In addition to its wars, it witnessed many grave and widespread human rights abuses. But what stands out in historical accounts of those abuses, perhaps even more than the cruelty of their perpetration, is the inaction of bystanders. Why do people and their governments repeatedly fail to react to genocide and other mass-scale human rights violations? There is no simple answer to this question. It is not because people are insensitive to the suffering of their fellow human beings—witness the extraordinary efforts an individual will expend to rescue a person in distress. It is not because people only care about identifiable victims of similar skin color who live nearby: witness the outpouring of aid from the north to the victims of the December 2004 tsunami in Southeast Asia. Nor can the blame be apportioned entirely to political leaders. Although President George W. Bush was unresponsive to the murder of hundreds of thousands of people in Darfur, it was his predecessor, President Bill Clinton, who ignored the genocide in Rwanda, and President Franklin D. Roosevelt who for too long did little to stop the Holocaust. The American example of inaction has been largely repeated in other countries as well. Behind every leader who ignored mass murder were millions of citizens whose indifference allowed the inaction to pass. Every episode of mass murder is distinct and raises unique social, economic, military, and political obstacles to intervention. We therefore recognize that geopolitics, domestic politics, or failures of individual leadership have been important factors in particular episodes. But the repetitiveness of such atrocities, which have been ignored by powerful people and nations and by the general public, calls for explanations that may reflect some fundamental deficiency in our humanity—a deficiency not in our intentions, but in our very hardware, and a deficiency that once identified might possibly be overcome. One fundamental mechanism that may play a role in many, if not all, episodes of mass-abuse neglect involves the capacity to experience affect, the positive and negative feelings that combine with reasoned analysis to guide our judgments, decisions, and actions. Research shows that the statistics of mass rights violations or genocide, no matter how large the numbers, fail to convey the true meaning of such atrocities. The numbers fail to spark emotion or feeling and thus fail to motivate action. The genocide in Darfur is real, but we do not “feel” that reality. We examine below ways that we might make genocide “feel real” and motivate appropriate interventions. Ultimately, however, we conclude that we cannot only depend on our intuitive feelings about these atrocities. In addition, we must create and commit ourselves to institutional, legal, and political responses based upon reasoned analysis of our moral obligations to stop large-scale human rights violations.