Faculty Chapters

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  Conceptions of Consent, Family, and Jurisdiction in Forensic Genetic Genealogical Searches

  Erin E. Murphy

  The announcement in April of 2018 that law enforcement officials in the United States had identified a serial rapist and murderer known as the Golden State Killer (GSK) heralded a new era in forensic genetic investigation. At a press conference announcing the arrest on the United States’s official National DNA Day, investigators initially refused to disclose their methods. Instead, a litany of law enforcement officials, and even a victim’s relative turned DNA advocate, spent time promoting the passage of a pending expansive DNA law and even repeatedly ‘sham[ing]’ a politician by name who had resisted his entreaties. But within days, reporters revealed that the suspect had been traced through a crime scene profile uploaded to GEDMatch, a recreational genealogical database, which produced links to a dozen or so distant relatives. After building out a family tree with ‘thousands’ of members, investigators honed in on Joseph James DeAngelo, who eventually pled guilty to the crimes. The investigators who conducted most of the research became minor celebrities, and their success spawned a cottage industry of crime-solver television shows and new forensic genetic genealogical (FGG) service shops. An FGG search differs from traditional forensic DNA in several respects. First, FGG searches involve a more invasive and comprehensive form of DNA testing than the traditional form of forensic genetic testing. FGG compares hundreds of thousands of single nucleotide polymorphisms (SNPs) in the coding region of the genome, rather than a couple of thousand short tandem repeat sections (STRs) deliberately chosen from non-coding or ‘junk’ regions of the DNA strand. Second, FGG searches use largely unregulated commercial and recreational databases, rather than law enforcement databases subject to strict controls to safeguard of both privacy and quality assurance. Third, rather than look for an exact match, FGG searches uncover scattered leads in a suspect’s family tree, from which genealogists then reverse engineer the rest of the tree to isolate one branch or a single suspect. In this respect, FGG searches differ even from familial searches of DNA databases, which typically focus on close male relatives of a suspect and have a poor success rate at achieving even that. FGG searches also require law enforcement to comb through highly personal records—such as those containing birth, death, census, law enforcement, educational, financial, social media, real estate records and so on—to build out a family tree. In the course of the investigation, investigators might also seek DNA samples from biological relatives in order to help fill gaps or steer the direction of the investigation. These complex FGG investigations also take place wholly in secret, and investigators in the US have deliberately hidden their true scope from the public. For instance, in the GSK case, later reporting revealed that neither investigators nor the DNA database companies had been forthcoming—and not just in the press conference, but in the year-long victory lap of media appearances that took place after the arrest. In fact, it was not a hit in the GEDMatch database that broke the case. It was not only public databases that were searched. And DeAngelo was not the sole person who had been suspected of the crime and not even the only person from whom investigators had taken DNA. Instead, as explained later in this chapter, the investigation had involved dubious police practices, more genetic sleuthing and more innocent people placed under police suspicion than the police had let on. Within two years of that event, hundreds of cases had used genetic genealogy methods to identify suspects, resulting in dozens of convictions. Commercial providers like Parabon and Bode International have officially started offering FGG services, and other companies have joined suit. The searches have proven largely efficacious, relying on a combination of the size of the database searched, the discerning power of the search algorithm, the depth and range of coverage in non-genetic records necessary to build out family trees and the skill of the particular genealogist. At the same time, there are some indications of increasing trepidation among the general public with regard to recreational genetics. Illumina, the company that dominates the recreational genetics-testing technology, ‘hit a lull’ after years of exponential growth; analysts have speculated that concerns about privacy may be a contributing factor, as well as possible exhaustion of the pool of interested consumers. A recent announcement from the Pentagon in the United States may serve only to underscore this fear, as they warned service members of the risks of recreational genomics. And in the US, several legislators have spoken about enacting a total ban, and a few states have imposed restrictions on the practice, including the first comprehensive regulatory scheme in the state of Maryland. The emergence of FGG affords a valuable platform from which to assess an incipient technolegal world—one in which cutting-edge technologies clash with well-established legal, social and political concepts. Forensic genealogy harnesses several distinct scientific advances, including the availability and affordability of inexpensive, large-scale single nucleotide polymorphism (or SNP) testing of the genome; the commercialisation of recreational genetics by private companies; and the development of open-platform sites to share genomic data. Hitched to one another by law enforcement, these technosciences pose a challenge to fundamental legal concepts that have long constrained law enforcement. Namely, they unsettle notions of consent, the spatial and relational limits on knowledge generation and conventional legal structures governing law enforcement access to information. Focusing primarily on the law and practice of forensic genetic genealogy in the United States, this chapter addresses each of these sites of conflict.

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  The Sexual Subject: Recasting the Sexual Citizen

  Melissa Murray

  How do we construct sexual citizenship? Put differently, how do we as a society identify those whose sexual conduct and identities as sexual beings are consistent with our notions of citizenship and the public good? Often, identifying the ideal sexual citizen means identifying the traits associated with sex and sexuality that we deem useful, beneficial and productive—the kinds of sexual conduct we value, reward and encourage. But, as is often the case when constructing ideals, our understanding of that which is normatively desirable and desired is often informed by its foil—that which is decidedly undesirable. In this regard, the construction of a normative ideal of sexual citizenship has been tethered to the production of the sexual outlaw—those individuals who live their lives outside of the bounds that constrain citizenship. But it is not just that the law’s construction of the ideal sexual subject depends on the construction of its foil (the sexual outlaw); law also constructs sexual citizenship in ways that are deeply gendered and raced.

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  Constitutionalizing Reproductive Rights (and Justice)

  Melissa Murray and Hilarie Meyers

  In Griswold v. Connecticut and Roe v. Wade, the U.S. Supreme Court framed constitutional protections for reproductive rights around the right to privacy. But the Court’s emphasis on privacy was not inevitable. Rather, in the 1960s and 1970s, advocates challenging laws prohibiting contraception and abortion offered a wide range of constitutional grounds in which to root reproductive freedom, including claims of race, class, and sex inequality. Nevertheless, mainstream reproductive rights groups reiterated Griswold and Roe’s privacy logic in their advocacy efforts, further entrenching the rhetoric of privacy, individual choice, and negative rights. However, advocates on the ground sought to recuperate the concerns of race, sex, and class inequality that had previously marked reproductive rights advocacy, and by the 1990s, the reproductive justice movement had emerged as a counterpoint to the traditional reproductive rights framework. Over time, the intersectional elements of the reproductive justice movement have infiltrated mainstream reproductive rights advocacy, widening the range and scope of reproductive rights discourse. But critically, as aspects of reproductive justice have been integrated into mainstream reproductive rights discourse, those opposed to reproductive rights—from antiabortion groups to members of the Supreme Court—have sought to coopt the reproductive justice movement’s rhetoric for their own purposes. Rather than viewing access to abortion and contraception as essential to women’s equality, this new conservative discourse argues that reproductive rights are rooted in, and function as, tools of, race, sex, class, and disability-based inequality and injustice.

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  Tax Aspects of Incorporations

  Gregg Polsky

  This chapter discusses the United States federal income tax issues that arise in connection with the formation of a new corporation (Newco). When a Newco is formed, the initial owners may contribute cash, property, or services in exchange for shares of Newco stock. Because there is no built-in gain or loss inherent in cash, the acquisition of stock for cash does not result in any immediate tax consequences. Contributions of property or services, on the other hand, raise far more interesting tax issues. Section I of this chapter examines the tax issues relating to contributions of property, while Section II discusses contributions of services.

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  Does Common Ownership Explain Higher Oligopolistic Profits?

  Edward B. Rock and Daniel L. Rubinfeld

  There is compelling evidence that both concentration and profitability in oligopolistic industries have increased over the past two decades. Over roughly the same time period, the concentration of shareholding in the hands of the largest institutional investors has dramatically increased, with a corresponding increase in the degree to which investors (such as Vanguard, State Street, and BlackRock) own large equity stakes in competing portfolio companies. A number of authors have argued that the growth in this ‘common ownership’ has caused the increase in oligopoly profits and have proposed a variety of policy responses. In this paper, we review the available evidence. We argue that as of now (a) the evidence that common ownership is the driving force behind the increasing oligopoly profits is unconvincing, (b) there are plausible competing explanations for the correlation between profitability and common ownership. As a result, (c) regulatory intervention directed against common ownership is not currently warranted, given the significant costs of such intervention. This paper proceeds as follows. In Section 13.2 we provide an overview of the evidence that concentration and profitability have increased. In Section 13.3, we consider the evidence that increased common ownership is the cause of the increase in profitability. Section 13.4 considers alternative explanations for the correlation between increasing concentration, increasing profitability, and increasing common ownership, along with the available evidence in support of these alternative hypotheses. Section 13.5 considers the policy implications of the current state of play.

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  Jurisdictional Underpinnings of International Taxation

  H. David Rosenbloom and Fadi Shaheen

  This chapter discusses the jurisdictional underpinnings of international taxation. It looks at certain principles of public international law and raises related questions that may be useful to consider when efforts are made to reach a broad consensus on changes to the rules of international taxation. The chapter assesses whether, from a public international law standpoint, existing domestic tax laws and bilateral income tax treaties can rise to the level of customary international law and, as such, impose limitations on jurisdiction to tax.

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  Perspectives from the United States and Canada

  Geneviève Saumier and Linda J. Silberman

  This joint contribution on Canada and the United States examines how these two States deal with cross-border recognition and enforcement of civil judgments. This collaboration made sense to the authors given that these jurisdictions have a long history of recognising each other’s judgments and exhibit similar openness to judgments from other countries. A comparative consideration of each country’s perspectives on the HCCH 2019 Judgments Convention was expected to yield interesting insights for readers from Canada and the United States, but also for those less familiar with the intricacies of recognition and enforcement law in these two countries. As the United States and Canada both have a federal system and share, for the most part, a common law tradition, one might think that the two countries would share similar perspectives about the Convention. But, as we will explain further, the views about the recognition and enforcement of foreign country judgments in the two countries present significant differences. The two countries do have generous and substantially similar regimes for recognising and enforcing foreign country judgments, but the concerns about the recognition and enforcement of their own judgments abroad are somewhat different. This contribution will explore those issues and conclude on a cautiously optimistic note on the prospects for ratification of the Convention for both countries. Even though the Convention will enter into force on 1 September 2023 as a result of ratifications by the European Union (EU) and Ukraine on 29 July 2022, patience may be the key with respect to ratifications by the United States and Canada. The chapter is structured to provide the perspective of both countries in relation to outgoing judgments (section II), incoming judgments (section III) and the treaty ratification and implementation process (section IV). In so doing, it will consider the history and current landscape in both countries and will discuss specific provisions of the HCCH 2019 Judgments Convention that may raise questions in one or both countries.

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  What Does ‘Consent’ Mean?

  Stephen J. Schulhofer

  Stephen Schulhofer here addresses the foundational question what sexual consent means, that is, whether the inner mental state or observable behaviour matters. He begins with a survey of current American law and the discussions about the reform of the Model Penal Code, describing that little consensus on the meaning of consent can be found in positive criminal laws. In his own normative analysis, he defends the performative model against the alternative of attitudinal consent. From this starting point, it needs to be decided which kind of message is relevant: absence of ‘no’ or expression of ‘yes’? Schulhofer defends a contextual affirmative consent model, arguing that affirmative consent does not necessarily require verbal expression and that silence and inaction, depending on context, can be part of the relevant observable conduct.

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  Foreword

  John E. Sexton

  We—humankind—are at an inflection point, a critical threshold. We soon must choose between the fear that is the currency of populism and the hope that is harboured by those who, like Teilhard de Chardin, described the possibility of a Second Axial Age. In his volume, The Origin and Goal of History, Karl Jaspers described the period from 800 to 200 BCE as the Axial Age because ‘it gave birth to everything which, since then, humankind has been able to be’. It was the era when Lao-tzu and Confucius revolutionized Chinese thought; Buddha, Mahavira and the rishis who wrote the Upanishads transformed philosophy, religion and ethics in India; and the followers of Zoroaster in Persia explored profound questions about the nature of good and evil. In the Levant, Jewish prophets such as Isaiah and Jeremiah sounded calls for higher levels of moral awareness. In Greece, Pythagoras, Socrates, Plato and Aristotle articulated the fundamental ideas of Western philosophy. Before the Axial Age, the dominant form of consciousness was cosmic, collective, tribal, mythic and ritualistic. By contrast, the consciousness born in the Axial Age, which was then extended by successor waves such as Christianity, Islam, the Enlightenment and the scientific revolution, carries a sense of individual identity that permeates the cultures of the world today. Since the middle of the last century, we have begun to see signs of a Second Axial period. Although first described by theologians, the Second Axial Age also has a progressive, secular dimension that Teilhard predicted—a process of ‘planetisation’, a shift in the forces of social evolution analogous to biological evolution, proceeding from ‘emergence’ and ‘divergence’ to ‘convergence’. The first groupings of humans were familial and tribal, engendering loyalty to a group and separation from other groups. Humanity then diverged, creating different cultures and nations. But the spatial finitude and spherical shape of our planet were intrinsic constraints: so, human beings now occupy all of earth’s readily habitable areas, and modern communication and transportation systems mean that groups can no longer detach completely from the world. Today, humankind is pressed into a full planetary community. Even as powerful forces of difference and division incline us against one another, we are being drawn into a global society. But this global world need not compromise the great gift of experiential diversity. Teilhard saw not a homogenisation but rather ‘creative unions’, in which diversity is enriched. ‘In any domain’, he wrote, ‘whether it be the cells of a body, the members of a society, or the elements of a spiritual synthesis, union differentiates’. Whether subatomically or globally, elements unite in ‘centre-to-centre unions’. Just as physics describes centres of mass in the universe that are drawn together, capitals of the world will be connected even more than they are. They will touch one another at their creative cores, releasing new energy and much deeper understanding. This powerful centre-to-centre contact offers the promise that we, the citizens of these cities and of this integrated world, may discover what is authentic and vital not only about others but also about ourselves. New York University has embraced this Teilhardian view of the world in reshaping itself over these last two decades in a Global Network University. Founded nearly two hundred years ago in the world’s premier ‘glocal’ city (global and local simultaneously) to be ‘in and of the city’, NYU found it natural to become ‘in and of the world’. Today the university is located in 16 idea capitols on six continents, anchored by full research campuses not only in New York but also in Abu Dhabi and Shanghai. This is not an independent set of ‘branches’; rather, it is a fully integrated circulatory system through which faculty, staff and students flow freely—and, along with them, their ideas. It is in this context that these extraordinary volumes both operate and cooperate, simultaneously touched by this planetisation and shaping it. My NYU colleague, Professor Colette Mazzucelli, both in her work at NYU and as the president of the Global Listening Centre, has practiced a kind of secular ecumenism. At NYU’s New York campus she teaches seminars across schools in conflict resolution, religious radicalisation and ethnic conflict—each a story of division. But from these potentially disheartening stories she draws a contrapuntal lesson of hope—through aggressive listening and genuine dialogue. So, it is in this volume that she, James Felton Keith and C. Ann Hollifield offer us a homage to and an example of collective, nuanced conversation that truly advances knowledge and understanding. This volume, collecting as its content does the thoughts of participants spread throughout our global society, presents genuine centre-to-centre dialogue. And it does in fact release new energy and deeper understanding. It remains for us to emulate this example still more pervasively in all of our conversations. Congratulations to the editors and the authors. Onward and upward together!

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  Common Law Tort as a Transitional Regulatory Regime: A New Perspective on Climate Change Litigation

  Catherine M. Sharkey

  This book chapter explores how common law (state or federal) tort law evolves to fill regulatory voids. Particularly in areas that pose emerging, and incompletely understood, health and safety risks, common law tort liability holds out the potential for a dynamic regulatory response, one that creates incentives to develop additional information about potential risks and stimulates innovation to mitigate and/or adapt to these risks. In this temporal model, common law tort plays an essential role in transition, allowing for experimentation with various risk-minimization methods and remedial approaches until optimal approaches emerge which could then be enshrined in more uniform regulations. The chapter identifies and assesses this dynamic, information-forcing role for common law tort liability in the realm of climate change litigation. In this model, common law tort, rather than a relic of the past, emerges as relevant to the future of environmental risk regulation, as indeed superior to legislation and/or regulation in terms of addressing newly emergent risks. Moreover, the model suggests that the interaction between common law tort and federal statutes and regulations will remain interactive and dynamic over time. The chapter then uses climate change litigation as a case study to shed light on the expansion of common law public nuisance to fill a regulatory void in this area, revealing the modern relevance of common law tort in environmental law. The chapter concludes with a preliminary evaluation of the extent to which experimentation among states and municipalities with regard to various adaptation measures fits the optimal model of common law tort in transition, with a final gesture toward forces at play that may stymie the common law’s evolutionary impulses.

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  The Future of the Corporate Tax

  Daniel N. Shaviro

  Recent calls for increased entity-level corporate income taxation of multinationals, on both a source and a residence basis, have a distinctly back-to-the-future cast. At least as to the bottom line, they have far more in common with 1986-era thinking than with which has often prevailed in more recent decades. However, their intellectual basis has substantially changed, reflecting the evolution of economic thinking to reflect twenty-first century trends. This historical back-and-forth has ample parallels in other areas, and precedents from earlier eras. In corporate and international tax policy, as well as with regard to taxing capital income and addressing high-end inequality more generally, the rise of standard neoclassical Econ 101 precepts that, in the preceding period, had been underappreciated was succeeded by a growing awareness of what those precepts leave out. Meanwhile, the popular back-and-forth has reflected fluctuating public perceptions regarding, not just the importance of distributional issues, but also unfettered free market capitalism’s merits and performance.

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  Enforcement of Arbitral Awards Set Aside or Annulled at the Seat of Arbitration

  Linda J. Silberman and Robert U. Hess

  Dissatisfied parties on the losing end of an award frequently seek to have the award set aside or annulled at the seat of arbitration. However, when the challenge is successful and results in a set aside of the award, there is no guarantee that the matter is finally settled. The award winner may attempt enforcement of the award elsewhere, but the judgment winner will seek to have the set aside honoured. The courts in those jurisdictions will have to assess whether and to what extent to give effect to an award set aside at the seat. This contribution assesses whether and if so, under what circumstances a decision to set aside an arbitral award affects subsequent attempts to recognize or enforce that award in other jurisdictions. In particular, we focus on the following questions: What is the role of a court asked to recognize and enforce an award that has been set aside at the seat of arbitration? Should the court 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? Alternatively, courts might consider a more flexible approach to address set asides, but any such methodology would require guidance and the identification of criteria to be applied.

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  Introduction

  Danielle Spiegel-Feld, Katrina M. Wyman, and John J. Coughlin

  Perspectives from worldwide experts on how major cities across the globe are responding to the major environmental threats of our time, including global climate change Over half of the world's population now lives in cities, and this share is expected to increase in the coming decades. With growing urbanization, cities and their residents face substantial environmental challenges such as higher temperatures, droughts, wildfires, and increased flooding. In response to these pressing challenges, some cities have begun to develop local environmental regulations that supplement national and environmental laws. In so doing, cities have stepped into a role that has been historically dominated by higher levels of government. Global Sustainable Cities takes stock of the policies that have been implemented by cities around the world in recent years in several key areas: water, air pollution, greenhouse gas emissions, and climate adaptation. It examines the advantages—and potential drawbacks—of allowing cities to assume a significant role in environmental regulation, given the legal and political constraints in which cities operate. The contributors present a series of case studies of the actions that seven leading cities—Abu Dhabi, Beijing, Berlin, Delhi, London, New York, and Shanghai—are taking to improve their environments and adapt to climate change. The first volume of its kind, Global Sustainable Cities is a critical comparative assessment of the actions that major cities in the global North and South are taking to advance sustainability.

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  Are Negative Spaces Likely to be Fragile?

  Christopher J. Sprigman

  Rochelle Dreyfuss was a key early contributor to the scholarship exploring the possibilities of “Intellectual Production Without Intellectual Property” (IP Without IP), sometimes also referred to as innovation in IP’s “Negative Space.” In this article, we explore Dreyfuss’s contributions to that field, and address some of the questions she posed about the possible reach of the negative space contributions, as well as how durable low-IP innovation communities were likely to be.

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  ‘A Previous Instance’ Yamamoto and the Uses of Precedent

  Jeremy Waldron

  When questions have been raised about targeted killing—that is, about the practice of hunting down and killing terrorist suspects identified by name—defenders of the practice often bring up the case of the 1943 killing of Japanese Admiral Yamamoto, the architect of the attack on Pearl Harbor, and they cite it as a ‘precedent’. Now, the first meaning given to the word ‘precedent’ in the Oxford English Dictionary is ‘a previous instance taken as an example or rule by which to be guided in similar cases or circumstances; an example by which a comparable subsequent act may be justified’. Can this apply to the Yamamoto killing? In what way can a single instance like this from almost eighty years ago contribute anything to the permissibility of a highly controversial practice today? If the Yamamoto attack is a precedent, it is a non-judicial precedent and its invocation invites us to consider how precedent operates outside the framework of judicial decision. Beyond that, we must also ask what kind of justificatory work a single instance can do in normative argument. Does it justify by being a shining example of the rightfulness of actions of this sort? Or does it justify by beginning a line of analogical conduct that increases in its justifiability the longer it goes on?

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  New York City's Water

  Katrina M. Wyman

  New York City’s drinking water comes from surface-water sources located outside the city. Although the city is surrounded by water, that water is not suitable for drinking because it is salty ocean water and brackish river water. The city built its system for importing drinking water, with legal assistance from New York State, starting in the 1830s and continuing into the twentieth century. The city continues to maintain the system, but it has been subject to considerable state and federal regulatory oversight since the latter twentieth century. The city also started building its system for managing wastewater in the mid-nineteenth century. As in other US cities, the introduction of a water-supply system in the nineteenth century facilitated the development of indoor water closets, which increased the need for a systematic approach to removing wastewater. Like many larger older US cities, New York City built a combined wastewater system in the nineteenth century that collects domestic wastewater and excess rainwater into a single system. The city built portions of the oldest of its fourteen wastewater-treatment plants in 1903; the system was significantly enlarged in the 1930s through the 1950s, but the city continued to dump untreated sewage into the Hudson River until 1986. The federal Environmental Protection Agency (EPA), acting under the federal Clean Water Act passed in the 1970s, finally forced the city to treat sewage before discharging it into the Hudson River. However, even today, when it rains heavily, the capacity of the city’s sewage system is exceeded, and the city dumps combined overflows of untreated sewage and rainwater into the waters around the city. Partly to comply with the requirements of the federal Clean Water Act, the city has been working for over a decade to install “green infrastructure” on public and private property to absorb rainwater and thus to reduce combined sewage overflow events. The city’s interest in green infrastructure as a means of dealing with stormwater—including the cloudbursts likely to become more frequent as the climate continues to warm—resembles that of other cities discussed in this volume, such as Berlin. This chapter begins with the management of New York City’s water supply and then discusses the management of wastewater and the funding of the water system. It concludes with some observations about the potential of cities as environmental actors, drawing on the lessons from New York City’s management of its water supply and wastewater systems.

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  Courts, Climate Action, and Human Rights: Lessons from the Friends of the Irish Environment v. Ireland Case

  Victoria Adelmant, Philip G. Alston, and Matthew Blainey

  In July 2020, in a country in which courts consistently defer to the executive, the Irish Supreme Court invalidated the government’s climate strategy. The National Mitigation Plan had outlined some vague measures, deferred most action, and acknowledged that short-term emissions would increase. NGO Friends of the Irish Environment argued it was ultra vires and that it violated the rights to life, bodily integrity, and a healthy environment. In an important victory for climate activists and litigants, the Supreme Court upheld the ultra vires claim and quashed the Plan, requiring the government to produce another. But this success was overshadowed by the court’s retrogressive and gratuitous findings which narrowed the existing doctrine on standing, essentially rejected the relevance of human rights provisions, and denied the existence of a derived right to a healthy environment. The judgment raises questions as to whether climate litigants should pursue a narrower range of grounds and how litigants might approach standing and the right to a healthy environment in future. It highlights the urgency of making strategic use of regional and international mechanisms in addition to domestic courts and the need for litigants to be upfront about the necessity of innovative legal reasoning in climate cases.

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  The Past and Future of Social Rights

  Philip G. Alston

  Social rights have yet to be accorded their proper place either in the history of the international human rights regime or in current practice. The concept of ‘generations’ of rights is as problematic as it is unhelpful in this regard. In the future, more historical work needs to be done on the relationships among conceptions of social rights, poverty alleviation and distributive justice, as well as on the relevance of national-level precedents and on the role of religion. The implications of extreme inequalities should also be a crucial element of future work, but the debate needs to be based on a deeper, more accurate and more integrated understanding of past approaches, as well as on clear definitions of the key terms and reference points. And more attention needs to be given to the crucial role played by a diverse array of civil society actors in this field. This final chapter lays out a research agenda that bridges the past, present and future of social rights.

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  Standard-Setting in UN System Organizations

  José E. Alvarez

  The absence of explicit lawmaking authority has not prevented international organizations from producing ‘standards’ that deviate from the ways the traditional sources of international law—treaties, custom, general principles—are usually understood. Despite the fact the UN was not given plenary authority to conclude treaties, a functionalist ‘principle of speciality’ imposes subject matter limits on UN system organizations, and entities charged with progressively developing or codifying the law (such as the International Law Commission (ILC)) can only make recommendations, the extent of standard-setting by international organizations vastly exceeds what might be expected from such limitations.

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  Art in Theory: An Insight from Marcel Duchamp

  Kwame Anthony Appiah

  An insight from Marcel Duchamp: It’s not what it is or how it’s made that determines whether something is a work of art. The question is, rather, whether we choose to attend to it in a particular way. So it’s a mistake to divide the world into art objects and objects that are not art. Attending to something on a wall as a work of art has rewards, but the object on the wall could have been found, or made, like Duchamp’s urinal, for some other purpose. Artists, novelists, poets—but also curators and critics and theorists—are people who propose things for a certain sort of attention. And what is rewarding in accepting that invitation varies with who we are, what the thing is, when and where we are in place and in time. More than this, the rewards of attending to something—an urn, a poem, a movie, a dance—can change as we change, when we refocus our attention ... or when the world changes ... or when we invent new ways of treating something as an art object. As a result, there’s no single answer to the question of why the arts matter. That’s one of the reasons “art” escapes definition. So no definition, no theory: just three sketches of ways in which art matters.

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  Who Are We? Identity and Cultural Heritage

  Kwame Anthony Appiah

  What is the realm called “the West”? What does it mean to identify with “Western culture”? In excerpts from his book The Lies That Bind, Kwame Anthony Appiah demonstrates how the notion of Western identity has formed the basis of hierarchies, status, and structures of power. The idea of Western culture represents a modern construction, a grand “Plato-to-NATO” narrative arc with its precursors in concepts of Christendom and Europe. Although this volume focuses on the protection of immovable cultural heritage, Appiah reminds us that all cultural practices and objects must be regarded as mobile, mutable, infinitely complex, and ultimately resistant to ownership by any single group.

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  "Black Rage" and the Architecture of Racial Oppression

  Deborah N. Archer

  Deborah Archer employs Lauryn Hill’s 2012 song “Black Rage” as a lens through which the reader can understand the 2014 uprisings based on the killing of Michael Brown in Ferguson, Missouri. By flipping the popular American song “My Favorite Things” from Rodgers and Hammerstein’s The Sound of Music to describe the racism at the nation’s heart and the Black rage it evokes, Lauryn Hill offers a haunting and powerful ode to Black America in “Black Rage.” This chapter will include a close textual analysis of the song and discuss the ways it evokes Black America’s experience of racism and the Black rage which gives fuel to Black resistance. As “Black Rage” was dedicated to the residents of Ferguson, Missouri in 2014, the chapter will discuss the systems of racial oppression exposed in the months following the murder of Michael Brown and connect it to the broader architecture of racial oppression in America. By adapting the Rodgers and Hammerstein song, Lauryn Hill is saying that racism, and the Black rage it engenders, are also quintessentially American.

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  Doing the Deal

  Deborah K. Burand

  This guide focuses on key issues in impact investing, including legal structure, measurement and reporting, forming an impact investment fund, and doing the deal. It also examines regional and country coverage using the comparative approach and drawing on the expertise of local experts across multiple jurisdictions.

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  In Their Own Words: Alina Das, Immigration Attorney

  Alina Das

  Through powerful firsthand accounts, A Story to Save Your Life offers new insight into the harrowing realities of seeking protection in the United States. Sarah C. Bishop argues that cultural differences in communication shape every stage of the asylum process, playing a major but unexamined role.

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  Who Wants the Global Law School?

  Kevin E. Davis and Xinyi Zhang

  This chapter examines factors that influence student decisions about whether to participate in globally oriented legal education drawing on recent experience with a study abroad program at NYU School of Law. Calls for the globalization of US legal education often rest upon an unstated presumption that there will be significant demand for globalized legal education from students motivated by economically defined career goals. The case study suggests that the conventional view neglects the potentially confounding influences of imperfect information, on the parts of both employers and students, as well as social and cultural factors that influence students’ decision-making. The potential career impact of participation in a study abroad program was only one of several factors in students’ decisions. Other factors included the desire to have fun, influences from their peers, and general perceptions of the study abroad sites.