Faculty Chapters

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  Transfer of Title (Movable Goods)

  Franco Ferrari

  The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate. In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.

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  UNCITRAL

  Franco Ferrari

  The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate. In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.

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  Uniform Law

  Franco Ferrari

  The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate. In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.

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  Competition, Development and Regional Integration: In Search of a Competition Law Fit for Developing Countries

  Eleanor M. Fox

  This chapter addresses the development dimension of competition policies in regional trade areas. In the context of regional collaboration, what character and design of competition law and policy will best enhance development? The question evokes a more generic one: In general, what competition law and policy will best enhance development? I approach these questions by looking first at the daunting economic challenges of developing countries, the fit of competition policy and law to help address the challenges, and the choices available to developing countries as they choose a competition law perspective. I then review the benefits and costs of the regional context. The chapter argues that developing countries must develop their own brand of competition law, resisting pressures to copy ‘international standards’ without regard to fit; and it makes suggestions as to how to find common ground on rules and standards that developing countries and regions can call their own.

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  Foreword

  Eleanor M. Fox

  Leniency Regimes—Jurisdictional Comparisons is the essential reference guide for companies, their legal advisers and private practitioners. Covering 29 major jurisdictions worldwide this title offers you insight into the leniency regimes, and much more: • Includes contributions from leading local practitioners who are experts in the field of competition/antitrust law • Reader-friendly Q&A format allows for easy cross-jurisdictional comparisons • Contains key information and highlights all of the major aspects of leniency regimes in major jurisdictions • Facilitates understanding of what can and cannot be done in the various jurisdictions • Provides insight into the increasingly complex and important questions companies face when considering whether to apply for leniency on a worldwide level • Helps in managing cross-border leniency applications and complying with the obligations associated with completion of leniency applications

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  Frameworks of Inquiry in the Sociology of Punishment

  David W. Garland

  The publication of Foucault's Discipline and Punish has changed the way we think about punishment and penal institutions. The effect of this book has been to stimulate a sudden and very welcome take-off in the sociology of punishment, but it has also imposed a particular direction which should be recognized as such. Discipline and Punish proposes a new way of thinking about punishment, which tries to reorient penological thought away from its conventional assumptions towards a new set of analytical terms. It offers not so much a theory of punishment as a mode of theorizing about punishment. It suggests rules for study, methods of analysis, and ways of seeing, all of which add up to a definite style of thought which has been widely influential. Foucault's rules for the interpretation of punishment are set out clearly near the beginning of Discipline and Punish, as he is about to commence his investigation of modem penal practice. They are sustained throughout all of the analyses which follow, and, in Foucault's handling of them, they help produce some of the most trenchant and illuminating analyses of punishment ever written. These rules of study are, however, perspectival, as Foucault himself acknowledges. They produce an interpretation from a particular viewpoint—“from the point of view of power”—and, as Discipline and Punish says quite clearly, other interpretations and other perspectives are also possible and may be equally illuminating. The problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy. We now think of punishment as power, and not just in terms of power. A consequence of this may be to mistake a deliberately partial account (in both senses of “partial”) for a general one which cannot really stand on its own. Foucault's insistence is that punishment be interpreted in terms of power. It is to be thought of as a set of power/knowledge techniques situated in a field of political forces—as a set of mechanisms for administering the bodies of individuals and, through them, the body politic. The history of punishment is to be understood as “a chapter of political anatomy”; as an expanding technology for gaining knowledge of, and power over, individuals, so as to subject their bodies, minds and actions to an imposed pattern of control. Penal policy is, in a profound sense, a political strategy of control. This doesn't amount to a theory of punishment because Foucault makes it clear that the nature of penal practices, as well as the strategies for their deployment are historically variable—in fact they tend to become more knowledgeable, more powerful and more rational over time. Nonetheless we are told how to theorize this developing object: we should “regard punishment as a political tactic”, focus upon its “positive effects”; conceive of it as a “technology of power”. Working within these rules, Discipline and Punish presents us with a description of punishment as “administrative practice”, “a technique of improvement”, a means for the “control and transformation of behavior”, and ultimately as a set of “disciplinary mechanisms”. Now if one stares hard at this framework, and refuses to be distracted by its new terms and its hypercritical tone, the characterization of punishment that emerges is fairly straightforward, and is developed around a single interpretive theme. Foucault is insisting upon what one might call the Benthamite orientation of modem punishment. He is characterizing penal institutions, practices and discourses as so many instruments for the administration, direction and ordering of individual conduct. This notion of punishment, stripped of its irrational features and oriented exclusively towards behavior-control, is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation. But there is a twist. Whereas Bentham set out his rationalistic control framework as an ideal to aim for, and deplored the ritualistic, nonutilitarian actualities of punishment, Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modem penal institutions. Bentham's vision is taken to be a reflection of the very nature of things-we live in a Benthamite world-and Foucault's rules press us to study it accordingly. Now Foucault is never explicit about this suggestion that Bentham's dream has become a reality, though he plays with the idea by using the Panopticon image to characterize the nature of modem society. But underlying this overblown figurative device there is a much more serious utilization of Bentham's approach as the key to understanding punishment. We are invited to approach the study of penal institutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power. Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control. The possibility of nonutilitarian procedures, irrational commitments or dysfunctional elements is thus precluded in advance. If such phenomena do seem to occur they simply force us to look elsewhere for their function—to keep searching until we uncover their hidden utility for power.

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  Whatever Happened to the Death Penalty?

  David W. Garland

  “(1) Auto da fe (2) Beating with clubs (3) Beheading: Decapitation (4) Blowing from cannon (5) Boiling (6) Breaking on the wheel (7) Burning (8) Burying alive (9) Crucifixion (10) Decimation (11) Dichotomy (12) Dismemberment (13) Drowning (14) Exposure to wild beasts etc. (15) Flaying alive (16) Flogging: Knout (17) Garrote (18) Guillotine (19) Hanging (20) Hari kari (21) Impalement (22) Iron Maiden (23) Peine Forte et Dure (24) Poisoning (25) Pounding in mortar (26) Precipitation (27) Pressing to death (28) Rack (29) Running the gauntlet (30) Shooting (31) Stabbing (32) Stoning (33) Strangling (34) Suffocation.” This is a list of execution methods compiled by a New York State Commission in 1888. The Commission had been charged with investigating the most humane and practical methods of carrying into effect the sentence of death. The Commission, and the state of New York, would eventually introduce a new item into the historical record: the electric chair—first used in Auburn Prison on August 6, 1890. There is a reason this list is so long. Capital punishment has been practiced in most known societies over the course of human history. One might say that, until quite recently, it was the historical norm, a cultural universal. But in modern liberal democracies - in societies like the Netherlands—the death penalty no longer exists. We rarely think of it, but this transformation is remarkable. The death penalty once formed an elementary particle of governmental power in every nation state. Today the practice is widely regarded as a shameful violation of human rights and is prohibited throughout most of the Western world. What happened? This answer is by no means simple. There are exceptions to the Western trend—the USA being the most notable—and outside the Western world the death penalty is still alive and well, especially in the Middle East and Asia. Even in the West, the direction of historical change is not always the same. But we can roughly sketch the overall arc of change and trace the social causes that brought about this remarkable development. In the early modern period—between about 1400 and 1700—newly-emergent state authorities took up the death penalty and accorded it a central role in the project of state building. Elaborate public ceremonies, horrifying execution techniques, and ritual proclamations were so many means to this end, with the most atrocious punishments being reserved for crimes of lese majesty and challenges to the state. By the mid-19th century, in a context of increasingly well-established and rationalized states, capital punishment's main purpose had altered, so that what had once been an instrument of rule, essential to state security, became an instrument of penal policy, focused on the narrower goals of doing justice and controlling crime. As its functions changed, so too did its forms. The death penalty came to be formatted as a penal sanction rather than a political spectacle. Its focus came to center on criminal rather than political offences. Its executions came to be more swiftly administered, not in the political space of the town square but in the penal space of the jail yard. It sought to minimize bodily pain rather than maximize it, as before. By the late 20th century, in the very different context of the modern liberal democratic welfare state, capital punishment had ceased to be a central measure of crime control and had become increasingly rare and controversial. By century's end, it had been abolished by all the developed Western nations other than America, and by several non-Western nations besides. The widespread use of the death penalty - in earlier centuries in the West, and in much of the world still today—should hardly surprise us. If we set aside contemporary moral qualms and political objections to its use, it is easy to see why capital punishment has been so important. As a political weapon and a penal instrument, the death penalty has an irresistible power. Putting political enemies, serious wrongdoers, and dangerous individuals to death is an obvious, effective, and efficient way for authorities to eliminate the threat such individuals represent. Imposing a death penalty on law breakers permits authorities to proclaim their power, impress onlookers, exact revenge, undo pollution, restore social order and send a warning to would-be offenders. Nor has this self-evident efficacy diminished in the contemporary period. If swiftly applied, frequently utilized, and imposed with the requisite amount of pain and publicity—as it still is in places such as China, Iran, Saudi Arabia and Singapore—the death penalty retains much of its power as a penal and political instrument.

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  What States Can Learn from Municipal Insolvency

  Clayton P. Gillette

  Any discussion of a statutory regime for restructuring state debts inevitably invites comparison to the existing scheme for managing municipal insolvency under Chapter 9 of the Bankruptcy Code. This is not to say that a state bankruptcy regime would have to follow the procedures established for municipalities. One could imagine a state bankruptcy regime far different from the current form of Chapter 9, such as a minimalist regime that limited judicial intrusion or creditor intervention but gave the state substantial flexibility to impose an orderly mechanism for restructuring its debts, or a regime that covered only a subset of obligations that states incur. Nevertheless, examination of Chapter 9 should lead drafters of potential legislation governing states to avoid procedures that have proven inefficient in the municipal context and might even suggest that the entire enterprise of providing a federal scheme for state debt adjustment is misguided. That is not to say that a state bankruptcy procedure should simply reflect a “cleaned-up” version of Chapter 9. Many of the features of Chapter 9 reflect a constitutional relationship between states and their political subdivisions that is quite different from the relationship between the federal government and the states, and the relative autonomy of fiscally distressed states provides them with alternatives to bankruptcy that are less available to municipalities. This chapter explores the successes and failures of Chapter 9 and relates them to the options that states have for addressing their own insolvency.

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  Introduction: Social Science and Human Rights

  Ryan Goodman, Derek Jinks, and Andrew K. Woods

  A considerable gap remains between the international human rights regime’s aspirations and its achievements. Narrowing this gap is one of the central challenges for legal and policy actors, and it animates a growing body of scholarship. International lawyers and policy experts have been central to this effort, naturally enough. But our contention is that this gap cannot be closed with the tools of traditional legal and policy analysis alone. So we set out to find leaders in a wide range of disciplines to help us identify innovative research that could have a major and lasting influence on the study and promotion of human rights. The concept for this book began with a question: could recent social scientific study of individual and organizational behavior—research that has had a transformative impact on many disciplines, including politics, economics, communications, psychology, sociology—similarly transform the field of human rights? We sought specifically to tap into cutting-edge empirical research that has generally not addressed human rights as a descriptive matter nor converted descriptive analyses into policy recommendations. Of course, it has long been recognized that human rights issues cut across many facets of life. The field of human rights studies is, according to some schools of thought, a quintessential humanist subject. Many human rights issues have seen rich expression in film, art, and literature—currently on the syllabi of many human rights courses. But our aim was not to add to the considerable scholarship about the inherent interdisciplinary nature of human rights as a subject. Instead, we began with the assumption that the challenges faced by the human rights regime demand reflective advocacy and institutional design crafted with the benefit of the academy’s most robust empirical insights. We were accordingly interested in research insights on topics such as cognitive errors in decision making, psychological and evolutionary pressures for good and evil, the influence of social structure on collective beliefs, effects of social marketing campaigns in creating individual preferences, and modes of governance in effectuating resistance and compliance. A group of extraordinary, leading scholars from across the academy agreed to participate in this initiative. This book is the result. All the contributors accepted our challenge to present research related to the book’s core objectives, yet many of their chapters do not include the words “human rights.” This is by design. The chapters in this volume were selected because they suggest new avenues for human rights research, and could lead to important advocacy tools or policy reforms in the human rights arena. In order to capture the benefit of research that does not directly deal with human rights, we did not ask the authors to extend their work to that topic artificially. The authors employ different empirical methodologies and exhibit different areas of specialized knowledge. Those differences explain, in significant part, how explicitly each author chose to analyze implications for the human rights field. To expand the potential reach of each contribution, we drafted an editors’ Coda for each chapter. The Codas take the findings from the relevant chapter as inspiration for potential human rights regime designs. In short, our aim in this volume is to provide readers with an overview of the exciting range of empirical insights drawn from the social sciences and with a deep sense of the implications for the human rights regime. The volume can therefore be read as a basis for future academic exploration and for developing new tools for promoting human rights. We view this project as another step toward an interdisciplinary revolution in human rights scholarship and practice.

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  Constitutions and Constitutionalism

  Stephen Holmes

  Democratic theory conventionally defines a constitution as a ‘higher law’ that cannot be changed through normal lawmaking procedures in a popularly elected assembly. Exceptional legal entrenchment is said to insulate constitutional rules from the majoritarian controls that purportedly govern ordinary legislation. In this way, a constitutional text strives to make fast the form of government (a presidential or parliamentary, a unitary or federal republic), the limits of government (inviolable rights and immunities), and the goals for which the government is empowered to act (to ensure domestic tranquility, provide for the common defense, and promote the general welfare). With this rough understanding of a democratic constitution in mind, constitutional theorists routinely plunge into a heated debate over the counter-majoritarian dilemma, namely the question: Why would constantly renewed generations of voters remain committed to an inherited arrangement that was intentionally crafted to be difficult to change? The so-called counter-majoritarian dilemma, however, is both politically fraught and analytically confused. American liberals, for example, have an incurably schizophrenic attitude toward counter-majoritarian institutions. On the one hand, they favor rigid restraints on racially bigoted majorities but, on the other hand, they oppose rigid restraints on economically redistributive majorities. American conservatives are no more consistent. A theoretically coherent and nonpartisan approach to counter-majoritarian institutions is nowhere to be found. The very idea of counter-majoritarianism suffers from a deeper flaw, moreover. The lex majoris partis is one of those decision rules that allow a population of human beings to make collective decisions for the first time. It may be a rational rule, but it is nevertheless a rule that is presupposed by, not produced by, collective choice, and that includes the choices attributed to an imaginary popular sovereign. Unless such a constitutive rule is already in place, the nation or the people cannot hammer out the kind of ‘constitutive will’ that could subsequently be thwarted or betrayed. This consideration reveals the flaw in Jon Elster’s much-discussed but abortive attempt to explain, by drawing an analogy between constitutional conventions and Ulysses ordering himself to be bound to the mast of his ship, how a democratic people could impose a constitution on itself.3 That this eye-catching parable does little to illuminate the origins, survival, and function of democratic constitutions (by which democratic peoples purportedly bind themselves) is by now widely acknowledged, even by Elster himself. The main defect of the analogy is that Ulysses operated as a coherent decision-maker, capable of issuing authoritative commands and being duly obeyed, prior to ordering his sailors to lash him to the mast. Only the acknowledged captain of a deferential crew, not a politically amorphous population operating without pre-established decision rules or a clearly demarcated boundary between members and nonmembers, could play such a constitutive role. Unlike hundreds of thousands of independent villagers and subsistence farmers strewn across a lengthy Atlantic coastline, compact political elites have a pre-constitutional capacity to create, amend, interpret, and enforce constitutional rules that favor their real or imagined interests. But this does not necessarily mean that ‘constitutionalization’, as neo-progressives continue to urge, is ‘driven primarily by political interests to insulate certain policy preferences from popular pressures’. Political, social, and economic elites have reasons to bind themselves that are related only incidentally to parrying majoritarian demands. This issue has been muddled in US historiography because the Contracts Clause was obviously inserted in the Constitution by creditors and their allies to resist the demands of debtors and tax delinquents.6 But governments routinely commit to repaying loans not only to resist the Sirens’ songs of tax relief and paper money but also in a bid to become a Siren. By making credible commitments to pay back loans, a government can entice money, at relatively low interest rates, from the pockets of money-lenders in a way that unbound borrowers cannot easily do. The unlocking of foreign and domestic credit by governments that have established a reputation for creditworthiness is a good example of elite self-binding for the elite’s own advantage. It suggests that the powerful can have a strong incentive to make their behavior predictable even in the absence of popular pressures. But this is only one example among many.

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  Rethinking Liberalism and Terror

  Stephen Holmes

  Throughout his protean career, Benjamin Constant never wavered in his denunciation of two blood-stained instruments of arbitrary rule: courts that strip ordinary procedural rights from individuals being tried for particularly heinous offences and the demand that penal sanctions be used not only to punish convicted criminals but also to prevent prospective criminals from committing future crimes. Both irregular courts and preventive police actions were rationalized during his lifetime by declarations of national emergency and appeals to public safety. What strikes the contemporary reader of his hostile commentary on these matters is the label he attached, as a matter of course, to the two policies under scrutiny. He described them, in a way that was uncontroversial at the time, as central pillars of the Reign of Terror. The label is disconcerting today because the very policies that he singled out for opprobrium have now come to be widely seen as central pillars of the War on Terror. Putting aside for the moment the deaths of innocent civilians in foreign wars, the level of lawless governmental violence was unquestionably greater in 1790s France than in the United States during the first decade of the twenty-first century. It would make no sense, therefore, to compare the Reign of Terror with the War on Terror as domestic political nightmares. What does make sense is to compare, at least indirectly and by implication, the reasons given for deviating from ordinary legal rules in the two cases. That these justifications might not be all that dissimilar is already suggested by Constant’s observation that ‘during the whole course of our Revolution our governments claimed they had the right to violate the constitution in order to save it’. Writing after the most virulently illiberal phase of the Revolution was concluded, Constant advanced several persuasive criticisms of the revolutionary attempt to revive, in modern times, a renowned institution of ancient republicanism, namely dictatorship for the sake of public safety. Resurrecting the anachronistic Roman idea that threats to public safety justify the government’s temporary abandonment of legality, the perpetrators of the Terror set the stage for their own gruesome downfall. Not only did their out-of-place revival of a classical model suggest a fatal disconnect from reality, but their dismantling of procedural rights in criminal cases, during what they considered a national emergency, proved not only ‘unreasonable’ but certifiably ‘insane’.

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  Waldron, Machiavelli, and Hate Speech

  Stephen Holmes

  I am not particularly knowledgeable about the subject of hate speech. I am not a philosopher at all. Yet Peter Molnar has pursued me persistently to contribute to this project. I could not understand why he kept calling me up and sending me emails telling me I should speak on a subject I know nothing about. I finally realized that the answer had to be that I once bumped into him at Washington Square Park and we had a conversation about hate speech. That conversation took us back to the mid-1990s, when I heard Ronald Dworkin lecture in Budapest. Dworkin was speaking, of course, a few hundred miles away from the Balkan tragedy, where hundreds of thousands of people were killed on the basis of violent hate ideologies, and on a continent in which a hundred million people were killed in that century on the basis of violent hate ideologies. My recollection is that he argued for total freedom to express hatred of other people, without considering this context. It does not take Sigmund Freud to understand that, if you have two continents, in one of which one hundred million people were killed on the basis of highly violent hate ideologies, accompanied and propelled by extreme hate speech, and in the other of which, at least by comparison, basically nothing happened, you will get different judicial traditions. This is not a legal point; it simply reflects the fact that what drives people most in their judgments is their own experience—or, to be precise, their remembered experience. When you forget about the Great Depression, then you say, “Well, government doesn’t need to regulate the banks anymore.” When you forget about the Vietnam War, you can say, “We should go over to Iraq.” So, what you remember—your experience—is far more consequential than norms or philosophies.

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  Fragmentation and Utopia: Towards an Equitable Integration of Finance, Trade, and Sustainable Development

  Robert L. Howse

  The aspiration to equity, providing to each his or her due, is inseparable from the utopian idea. We can help to achieve more equitable outcomes through better appreciating of the elements of equity implicit or sometimes explicit in the existing rules of international law, interpreting and applying them together with or in light of other norms of international law, such as those entrenched in the UN Human Rights Covenants. The World Trade Organization (WTO) rules on exchange actions and balance-of-payments justifications for trade restrictions clearly reflect a conception of equity that takes into account the particular needs and situations of developing countries. A realistic utopia implies fully recognizing that equitable considerations are not narrow exceptions to technocratic governance of finance, or merely a form of aspirational rhetoric or soft law, but are central to the task of an international financial system embedded in the general project of international law. In the way that WTO dispute-settlement organs have interpreted the provisions in question, especially as they relate to developing countries, equity understood as differential treatment has too often been marginalized or even dismissed.

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  'Importing’ Regulatory Standards and Principles into WTO Dispute Settlement: The Challenge of Interpreting the GATS Arrangements on Telecommunications

  Robert L. Howse

  This chapter examines the importation of regulatory standards and principles from other specialized international regimes into the World Trade Organization (WTO). It reflects on the systemic issues that must be taken note of in such importation and the administrative challenges that these create for the WTO adjudicator, who has to define, in context, the appropriate relationship between the specialized regimes and the WTO and adapt the external standards and principles to the purposes of the WTO—it cannot simply apply external norms in the WTO as if they were treaty norms, to be interpreted in accordance with the Vienna Convention on the Law of Treaties. The case I have chosen to illustrate these challenges is telecommunications, where the market access supposedly guaranteed by WTO free trade disciplines depends crucially on the shape of the domestic regulatory landscape, as well as institutions and norms of international regulatory cooperation. During the earlier era of the multilateral trading system, based on the General Agreement on Tariffs and Trade (GATT) of 1947, the concern with domestic regulation was largely focused on discrimination problems: against imports in favour of domestic products (National Treatment) and between imports from different Members (Most-Favoured Nation). The multilateral trading system was viewed mostly as a framework for negotiated bindings on the reduction or elimination of discriminatory border measures restricting trade, such as tariffs or quotas. In order to sustain such a bargain, it was necessary to ensure that Members did not ‘cheat’ on, or circumvent, these commitments through reintroducing measures amounting to import-discrimination in their domestic policies. The official theology of the trading system sanctioned complete regulatory autonomy and wide regulatory diversity: as long as they did not discriminate, Members were free to adopt whatever approach to domestic regulation they saw as appropriate. This outlook was well suited to an international regime like the GATT, which lacked the institutions, expertise or explicit mandate to engage in ‘positive integration’ through regulatory rapprochement or harmonization. It is notable, however, that not even the non-discrimination norm is an absolute constraint on regulatory autonomy in the GATT regime. In practice, it is largely impossible to determine, in a given case, which regulatory distinctions amount to impermissible ‘discrimination’, and which do not, without reference to some benchmarks or standards for, crudely speaking, ‘legitimate’ regulation. This has been clearly seen in the debates about the meaning of ‘like’ products in the National Treatment obligation, such as whether social, environmental, ethical and health considerations may be taken into account in determining whether products are ‘like’ for purposes of domestic regulatory treatment. Moreover, policies that violate National Treatment or Most-Favoured Nation might be justified, under certain conditions, where necessary or rationally related to particular policy objectives, such as public morals, health and the conservation of exhaustible natural resources. While it is often suggested that in such cases the adjudicative exercise is limited to considering the relationship between means and objectives, and thus involves no substantive judgments about the purposes of regulation or its desirability, in practice judging the necessity or rationality of a particular regulatory device necessarily entails second-guessing a set of domestic regulatory choices informed by diverse concerns (culture, social and community structures, administrability, the constitutional system, etc.) and representing a balance of values. Without some conception, at least implicit, of best or acceptable regulatory practices, it is hard to make fine judgments about whether a given instrument choice is really the necessary or rational means to a particular objective. In part due to recognition of this difficulty, as well as the related instability of the non-discrimination norm as a means of disciplining domestic policy, two of the specialized agreements that emerged out of the Uruguay Round gave a significant role to international standards as a means of managing the interface between domestic regulation and trade liberalization in the case of trade in goods. These were the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Sanitary and Phytosanitary Measures (SPS). The international standards were imported in various ways from non-WTO standardization regimes, such as the International Standards Organization (ISO) or the Codex Alimentarius, as normative benchmarks for judging the acceptability of WTO Members’ domestic regulations from the viewpoint of trade liberalization.

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  Regulatory Measures

  Robert L. Howse

  This article explores regulatory measures in the World Trade Organization (WTO), showing how it is extremely difficult to distinguish between measures that are a legitimate exercise of domestic regulatory autonomy from others which may be seen as a form of protectionism. Even in the early years of the regime, when the reach of the General Agreement on Tariffs and Trade behind the borders was minimal, there were difficulties associated with determining impermissible versus permissible discrimination, without reference to some standards. The article then goes on to address agreements that deal with these concerns, including the Sanitary and Phytosanitary Measures Agreement and the General Agreement on Trade in Services. It also discusses the National Treatment obligation with respect to non-fiscal laws, regulations, and requirements that affect imported products; the product–process distinction; the concept of public morals; the ‘necessity’ test; the requirements of the chapeau; the Agreement on Technical Barriers to Trade and the role of international standards; and food and agriculture regulation. Finally, the article investigates the implications that the WTO's regulatory measures generate for the organization's democratic deficit.

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  Kent’s Commentaries

  Daniel J. Hulsebosch

  James Kent (1763–1847) was the nation’s most influential jurist between Independence and the Civil War. His life spanned the American Revolution, constitution making, the formative years of the new nation, and its aggressive western expansion to the Pacific Ocean. As a lawyer, judge, and treatise writer, Kent participated directly and indirectly in several aspects of this crucial phase of American nation-building. He entered Yale College one year after the Declaration of Independence. The war repeatedly interrupted his studies, but he continued to read on his own. During one break, he devoured the fourth volume of Sir William Blackstone’s recently published Commentaries on the Laws of England. The highlight of that volume is an essay on “the rise, progress, and gradual improvements of the laws of England.” Kent accepted entirely Blackstone’s thesis that English law was constantly improving, and he believed that English law was the bedrock of American law. For the rest of his life he sought to participate in what he called a transatlantic “republic of letters” and to contribute to a common Anglo-American project of articulating the best legal principles. “Best,” for Kent, meant those legal principles that integrated the states together as a nation, and the nation into the surrounding Atlantic world. Kent served on the New York Supreme Court from 1798 to 1813, the last seven years as its chief justice, and then became the state’s chancellor, its highest judicial officer, from 1814 to 1823. During that quarter century on the bench he published hundreds of opinions in more than twenty volumes of reports. When the state’s first official reporter failed to meet his standards, he nominated the replacement, a friend who served alongside Kent for twenty years. Upon his forced retirement at age sixty, Kent began lecturing at Columbia, something he had first tried briefly in the 1790s, and he commenced a national consulting practice. His son suggested that Kent publish his Columbia law lectures, and they became the core of his Commentaries on American Law, undoubtedly the best-selling law book—and one of the best-selling books of any sort—in nineteenth-century America. The first edition appeared in four volumes between 1826 and 1830. Kent was editing the sixth edition at the time that he died. It served as a civics text for college students, a primer for law students, and a handy resource for practitioners. Consequently, American judges cited the Commentaries regularly. In time, so too did judges in the common law world outside the United States because Kent became the most-cited American judge in the courts of nineteenth-century Great Britain.

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  Managing Conflict Through Democracy

  Samuel Issacharoff

  Though frequently heralded as a panacea for societal ills, the advent of democratic rule in historically fractured societies often risks amplifying—rather than ameliorating—pre-existing social, ethnic and religious tensions. Emerging democracies must manage these tensions lest electoral processes and the demands of governance be the trigger and the means for renewed conflict. In the period immediately after World War II, the preferred mechanism for attempting to dampen historic animosities was through a mechanism of formalised power-sharing that has come to be known in political science by the name consociationalism. In attempting to lessen the explosive potential of historical societal divisions, these new democracies apportioned governmental authority, with political roles delineated along historical fault lines. This chapter is concerned with the contrasting approach taken by what has been termed the ‘third wave’ of democratisation. This period followed the collapse of the Soviet Union and has spread democracy more broadly around the globe than ever before. In common with the earlier period of post war democratisation, the new round confronts the need to stabilise governance in historically divided societies. By contrast to the earlier period, however, the post-Soviet efforts take as their defining characteristic not the formalised power-sharing seen in prior eras, but a system of democratic competition for political office under a strong system of constitutional constraints on the exercise of political power. While the means of resolving social divisions have evolved, this move away from a system of prescriptive allocation of political power does not suggest that the fundamental problem this system sought to redress has gone away. Both in and out of Europe, recent developments shed light on a broader range of nation-reinforcing tools beyond some kind of pro rata formal power-sharing. Alongside increased attention to constitutional restraints on the exercise of political power has come the dramatic expansion, and apparent acceptance, of judicial review of the structures of governance. The role of judicially enforced constitutionalism offers a different avenue of nation-building than that assumed in the consociational models. Rather than securing national unity through formal power-sharing along the major axes of social division, constitutionalism tends to impose limits on the range of decisions that democratically elected governments may take. This chapter examines the institutional contours of fragile ‘third wave’ democracies and their structural limitations on the exercise of majoritarian power; it also explores the potential for robust constitutional protections to channel historic tensions into fruitful democratic engagement. The aim is not to devise a one-size-fits-all model of proper constitutionalism. I find this a dispiriting and more than mildly chauvinistic enterprise. Instead, I look at structured forms of power in divided societies in the terms by which the constitutional courts of those societies analyse the difficulties they present. In part, this is recognition of how much more sophisticated the world has become since the simple consociational models that were supposed to yield stability through formal power-sharing. In part as well, this is recognition of the stakes in truly fractured societies. The unfortunate lesson of history is that stable civilian governance is most likely to emerge from post-conflict societies when one ethnic group has accomplished clear dominance or destruction of the other. Even with the introduction of more aggressive international peace-keeping, the key issue in nation-building remains the creation of an integrated political authority claiming legitimacy beyond an ethnic or racial base.

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  Will Aggregate Litigation Come to Europe?

  Samuel Issacharoff and Geoffrey P. Miller

  The current wave of deregulation and market liberalization in Europe has had major repercussions for the prospect of litigated forms of collective redress. Once decried as the perversity of rapacious Americans, class actions are now the focus of significant reform efforts in many European countries and even at the level of the European Union. There are, no doubt, many reasons for the relatively sudden attention to means of collective redress. Some have to do with the need to create effective ex post accountability mechanisms to contain the potential adverse effects of goods and services freely entering the market. Others seek to create mechanisms for efficient resolution of the numerous intertwined claims that invariably arise from the mass production and delivery of goods and services across a broad market. One should not gainsay the significance of these reform measures. All represent efforts to mobilize means of private enforcement to foster prevention through the prospect of civil litigation. For countries steeped in the civil law tradition, the move away from centralized public enforcement is a sea change in legal structures. The marriage of private enforcement mechanisms and relaxed barriers to entry into increasingly deregulated markets is a significant change as well. Add to that the diversity of litigation tools that are being developed and one would have to be almost churlish not to marvel at the liberalizing spirit sweeping the Continent. And, yet, one need spend only a few minutes in conversations with European reformers before the proverbial ‘but’ enters the discourse, as in, ‘But, of course, we shall not have American-style class actions’. At this point, all participants nod sagely, confident that collective actions, representative actions, group actions and a host of other aggregative arrangements can bring all the benefits of fair and efficient resolution to disputes without the dreaded world of American entrepreneurial lawyering. And no doubt the American entrepreneurial ways must be resisted and will be resisted fully, in much the same way that Europe has held off the unwelcome presence of McDonalds or Starbucks in its elegant piazzas. To this dignified and self-assured conversation we bring a simple but unwelcome question: Really? We develop this chapter in two parts. First, we must acknowledge that the aversion to the American-style class action corresponds to sustained critiques of class actions in the U.S. as well. A number of American reforms, from revisions to the class action provisions of the Federal Rules of Civil Procedure to the Class Action Fairness Act, have taken aim at some of the misfirings of class actions. Some Supreme Court decisions, most notably Amchem and Ortiz, have burdened class actions with procedural strictures that have limited the class action as an effective vehicle for resolution of mass personal injuries. Thus, in the U.S., broad scale settlements of asbestos exposures or of pharmaceutical injuries are likely to take the form of bankruptcy workouts, or mass private aggregative settlements, as with the claims over harms caused by the anti-inflammatory drug, Vioxx. In this first section, we examine four sources of claimed dissatisfaction with the class action to assess which are meritorious, which are ill-founded, and which derive from a deeper contest over whether or not there should be private legal accountability for low value or negative value consumer claims. We then move on to draw certain conclusions from the American experience with collective actions to ask whether the proper incentives and institutional arrangements exist in the European reform efforts. Our aim here is not to advocate that American processes need be adopted; neither of us sets foot in McDonalds or Starbucks when in Europe. Rather, our inquiry is whether, based on some of the lessons that may be derived from both the American experience and the simple economics of incentive systems, the current European reforms are likely to be effective in realizing their stated aims. Our concern is that appears as an apparent cultural revulsion at accepting the reality of legal enforcement as entrepreneurial activity may leave the reforms without the necessary agents of implementation.

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  Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical

  Samuel Issacharoff and Erin Scharff

  A paradox lies at the heart of employment discrimination law. Why would an employer choose to discriminate against any qualified potential employee? After all, any unilateral employer decision to limit the range of potential qualified applicants necessarily constricts the supply of labor. Any employer indulging such a “taste for discrimination” on the basis of antipathy for a particular group (as with black applicants) or a mistaken indulgence in stereotyped thinking about the abilities of a group to perform certain work (as with women) would find the applicant pool limited and the cost of labor correspondingly increased. To the extent that such discriminatory behavior was widespread, the wage premium to the preferred group would also then rise. Under such circumstances, the market should serve as a strong corrective force. Any employer freed from the stereotyped rejection of qualified employees would find a broader pool of potential workers and would presumably save on labor costs. Without having to pay the premium for this undesirable indulgence in discrimination, the tolerant employer would have an advantage in the market for goods and services. Generalized across the economy, a competitive market should squeeze the margins necessary for any employer’s willingness to indulge inefficient discrimination. Despite the logic of the market, discrimination abounds in employment markets around the world. Employers may be cushioned from market accountability by customer prejudices, co-worker prejudices or even legalized mechanisms of discrimination, as in the Jim Crow South, that prevented potential black employees from acquiring the skills necessary to participate in the workforce. Hence the need for employment discrimination laws. By prohibiting employers from using certain protected characteristics as a basis for employment decisions, these laws condemn the subjugation of protected groups for a variety of reasons—prejudice, fear, unconscious motivations, cognitive distortions and assumed characteristics. They even prohibit capitulation to these biases among co-workers, customers or the public at large. This anti-subjugation principle is rooted in the promise of the Equal Protection Clause and has been applied, through the Commerce Clause, to correct discriminatory distortions in the private markets. But employment discrimination laws are not merely exhortations against the wrongs occasioned by retrograde views. All employment discrimination laws are, at least implicitly, redistributive. There is a tacit understanding that there are classes of persons who have benefitted from the privileged social status of their group and corresponding classes who are on aggregate worse off. Without mandating redistribution, the cumulative effect of employment discrimination laws must be to redress some of the historic advantages and disadvantages resulting from ingrained past injustices. After all, there would be no compelling reason for antidiscrimination laws’ sweeping intrusion into market-based employment decisions about hiring, promotion and pay, unless there were a corresponding belief that the revealed market preferences are somehow wrong. Even Title VII of the Civil Rights Act of 1964, the most axiomatic of non-discrimination laws, was more than a statement that hostility to blacks in the workplace is opprobrious. Rather, advocates hoped that Title VII would also address the lack of employment opportunity for blacks. First and foremost among these consequences was the denial of jobs, promotions and income as a result of invidious discrimination. While even Title VII claims occasionally floundered when they forced the courts to confront directly the question of who should bear the costs of remedying past racial discrimination, the tension between the anti-subordination and redistributive goals of employment discrimination law reveal themselves most clearly in the jurisprudence of other protected classes: pregnant women, older workers and people with disabilities. In place of the original civil rights syllogism, which argued that but for invidious discrimination, employers would treat members of protected classes just like any other job candidate or employee, these new protected classes require not equal treatment, but rather special treatment to ensure equal opportunities for workforce participation. In these cases, discrimination might be economically rational. Thus, for example, even benevolent employers might worry about the productivity losses inherent in maternity leave (whether paid or unpaid) or the fixed costs of making an office or store accessible to an employee with a disability. With the passage of the Pregnancy Discrimination Act (PDA), the Age Discrimination Employment Act (ADEA) and the Americans with Disabilities Act (ADA), antidiscrimination law was forced to confront its redistributive norm and to struggle with the difficult question of who should bear the costs of providing equal opportunity. In this chapter, we explore at some length the problems of pregnancy discrimination, age discrimination and disability discrimination to highlight claims that are not easily resolved within the traditional civil rights paradigm of antidiscrimination law. These claims strain the boundaries of antidiscrimination law because they push to the foreground questions of cost allocation and the accompanying policy judgments that tax the institutional capabilities of courts. Instead of relying on a conventional equality of treatment model of antidiscrimination, which focuses on combating discrimination that was at its core economically irrational, newer legislation sought to provide workforce opportunities to specific groups deemed vulnerable in the labor market, raising difficult policy issues not easily handled by employment discrimination law. Section I of this chapter will offer a broad overview of the development of employment discrimination law as it moves from problems of subordination and irrational discrimination to issues of redistribution and economically rational discrimination. Section II addresses the strains placed on employment discrimination law as it confronted demands of accommodation increasingly removed from a simple but-for model, looking specifically at the PDA, the ADEA, and the ADA. Section III offers suggestions for future development of this area of law. Section IV concludes.

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  Indigenous Peoples

  Benedict Kingsbury

  IIndigenous peoples issues have increasingly been spoken of in the language of law and legal rights, and addressed through legal institutions, in a process of juridification that has intensified rapidly since the 1980s. Struggles over the broad approaches and concrete policies of State and international institutions on issues affecting indigenous peoples are framed in the language and concepts of law in an ever more diverse range of places and situations, at times representing not only a new politics of inclusion, recognition, or decentralization, but a new self-understanding of State and nation. Claims by indigenous peoples are made with growing frequency to, and are increasingly adjudicated by, courts and other juridical institutions in processes which can shape indigenous organization and the self-understanding of indigenous groups. This juridification is highly uneven, and its multivalent consequences may frequently be assessed as equivocal. Grotesque incongruities are frequent where, for example, an elegantly juridical process of prior consultation between a mining company and a forest people is conducted during a brief intermission before paramilitary death squads return. The juridical stratum may be isolated from material practice—not simply through conscious disregard, but more fundamentally in many situations where concepts and approaches embodied in legal texts are utterly unknown to the legislators, bureaucrats, and local political and community leaders whose actions and powers shape daily life. Yet juridification has been important, in some contexts transformative, and international law and institutions have been, and remain, a significant venue and driver for this process. This juridification has cemented the proposition that indigenous peoples are → subjects of international law, in a distinctive way. The earlier controversy about this issue was largely resolved by global intergovernmental bodies through adoption and partial implementation of key juridifying texts and institutions specifically recognizing legal rights of indigenous peoples. (These materials have not, however, resolved related questions such as how the practice of indigenous peoples may be relevant to the development of → customary international law.) The most important instrument, certainly in terms of its symbolic and ontological significance, is the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007 (‘UN Declaration’). While this Declaration is of particular importance, in many situations involving indigenous peoples the applicable positive international law derives in substantial part from other legal materials. A full discussion of this topic would thus require extended discussion of materials on the customary international law, general principles, and treaties relating to → human rights, discrimination, war, territory, fisheries, cultural property, development, and many other matters, as well as the institutions, governance dynamics, and major forces and interests affecting them. This work, however, has a much narrower focus. It begins with a note on the international legal concept of indigenous peoples, before providing an inventory of some of the international legal instruments and institutions that principally focus on indigenous peoples issues. It then outlines some of the key legal issues raised in claims by indigenous groups or their members, under five rubrics.

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  International Courts: Uneven Judicialization in Global Order

  Benedict Kingsbury

  ‘Law without courts’ seemed to Hugo Grotius an entirely coherent approach to the juridification of international relations. The first edition of his Law of War and Peace (De jure belli ac pacis, 1625) reflects an intense commitment to framing claims and rules for conduct outside the state in terms of legal rights and duties, but not to judicialisation, even though arbitration between sovereigns was addressed in earlier works he had read, such as Alberico Gentili’s Law of War (De iure belli libri tres, 1612 [1933]). Yet in modern times international judicialisation—the creation and use of international courts and tribunals—has been not only a significant component of liberal approaches to international order, but for some an indispensable concomitant of juridification. The opening section of this chapter provides an overview of the formation of what are now ten basic types of international courts. The following section offers some balance to the tendencies (implicit in the approach taken in the first section) to acclaim each flourishing legal institution as an achievement and to study only what exists, by considering the marked unevenness in the issues and in the ranges of states currently subject to juridification through international courts and tribunals. The final section addresses the question whether the density and importance of the judicially focused juridification that now exists has implications for politics, law and justice that are qualitatively different from what has gone before. This is explored by examining some of the main roles and functions of international courts, considered not simply as a menu but as a complex aggregate. International courts and tribunals are institutions, and are increasingly analysed as such. This includes basic institutional design, the specified functions and powers of the court, the degree of its embeddedness in related political institutions which may provide support or checks on it, the processes of appointment of the judges and their degree of independence and expertise as well as their socio professional reference groups, the funding and work capacity of the institution in relation to demands on it and its efforts to expand its reach or scale, whether the institution has an endu- ring identity and whether its judges are part-time (as the World Trade Organisation (WTO) Appellate Body is, by design). Some studies focus principally on the institution, and the ways in which the court also acts not judicially but administratively e.g. supervising appointment of defence counsel, or a compensation fund for victims. Explaining why these institutional features are the way they are says much about a particular court: its judgments, its substantive motivations in different cases, and its legal methods. Tribunals develop their own hermeneutics connected with many of these institutional factors—thus the WTO Appellate Body purports to adhere closely to the underlying treaty texts, while the Court of Justice of the European Community (CJEU, formerly ECJ) is more expressly teleological in aiming to achieve the purposes of the EU treaties. It is something of an international law myth that there is one unified approach to interpretation that is embodied in the 1969 Vienna Convention on the Law of Treaties and shared amongst all tribunals. The sociology of those practising in particular courts, and the wider constituencies for those courts, are also important. These institutional questions cannot, however, be considered further in the confines of this chapter. This chapter will not propose a tightly specified definition of ‘international court’. ‘Court’ undoubtedly exerts some pull as a regulative idea that is as an ‘ideal type’ which there is cognitive and sometimes political pressure for judicial-type institutions to approximate both in their design and in their operations. Mani (1980) put this in terms of rights to be heard, to a duly constituted tribunal free from corruption and fraud, to due deliberation, and to a reasoned judgment (which should more stringently be expressed as ‘reasoned judgment in accordance with the applicable law’). But it is doubtful that a single sharply delimited concept of ‘court’ prevails in international law practice. The term ‘international’ is used here to indicate courts created by intergovernmental agreement (including agreements made within, or by, intergovernmental organisations), or by agreement between a national government and a foreign private entity, where the court is legally situated either fully or partly outside the national juridical and governmental system of any state.

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  Introduction: Global Administrative Law in the Institutional Practice of Global Administrative Governance

  Benedict Kingsbury

  Long-term changes in the nature of global political and social order include the use of increasingly fine grained regulatory arrangements intended to overcome collective action problems and market failures and to take advantage of global cooperation. Although framing the changes in these politico-economic terms suggests that the key drivers are the maximization by each actor of achievement of its own (self-defined) interests within the constraints of the prevailing constellation of power, any global order model must also address values conflicts and cultural diversity, on the one hand, and the implications of dramatic but shifting inequalities of power, on the other. Two long-standing state-based models of global order blending these considerations provide the framework for standard approaches to international law: minimal interstate pluralism and more ambitious and moralistic interstate solidarism. Global regulatory governance (GRG) can be framed as a third model of global order, dependent on and layered over the existing models and grappling in distinctive ways with the considerations of power, value conflicts, and inequality. This introduction surveys some specific roles of law in the emerging GRG model, with particular attention to the present and future roles of global administrative law (GAL).

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  Global Administrative Law

  Benedict Kingsbury and Megan Donaldson

  Global administrative law can be understood as comprising the legal rules, principles, and institutional norms applicable to processes of ‘administration’ undertaken in ways that implicate more than purely intra-State structures of legal and political authority. The term ‘global administrative law’ came into use during the first decade of the 21st century. It encompasses most of the subject-matter addressed by jurists in the 19th and 20th centuries under the rubric of ‘international administrative law’ and, like this early work it proceeds from a view of what constitutes ‘administration’ beyond a purely domestic context, including some activities of national administrative agencies, and many activities of international organizations. But this newer term is preferred to avoid the misleading implication that the field is simply a branch of general international law and thus can be structured in terms of traditional (and now much-contested) criteria for → sources of international law and → subjects of international law. The variety of actors involved, the fact that many of these actors are primordial rather than exercising authority delegated by States, and the range of persons and processes affected by global administrative actors, make sharp distinctions between spheres of national and international administration increasingly difficult to maintain. Instead, much administration is taking place in what might be thought of as a global administrative space, involving blurring of national and international, and public and private, dimensions. Global administration (lato sensu) is of growing significance as both a result and a shaping feature of global ordering. Global administration can have serious effects on individuals and their rights, and on possibilities of national or local democracy or autonomy, as well as other deeply held values. Understanding the processes and trajectories of global administration thus has substantial practical and normative importance. Such an undertaking is rendered challenging by the massive volume, polycentricity, and obscurity of the interactions which constitute this administration. The patterns of power and authority in global administration are much less structured than those underpinning major parts of many domestic administrative systems. Institutional differentiation is less complete, roles are not clearly assigned, hierarchies are not highly specified, and bright lines do not exist between the spheres of administration and legislation or between administrative and constitutional principles and review authorities. Law and law-like structures play an increasingly significant role in global administration. Law has a dual effect, both channelling and magnifying administrative power, and constraining this power. Thus, adherence to legal standards and patterns can normalize and legitimatize the use of power, but law can also provide a basis for contestation, critique, and change in power and its exercise. However, global administrative law principles and mechanisms primarily address process values, rather than substantive values (such as distributive justice, political democracy, sustainability, non-domination, or individual autonomy and capabilities), which are extremely difficult to ground as generally-accepted bases for most global administrative structures. The focus on process limits the ambit and ambition of global administrative law, and attracts the criticism that it embraces current power structures and inequalities by militating for incremental reforms rather than radical revision.

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  Administrative Tribunals of International Organizations from the Perspective of the Emerging Global Administrative Law

  Benedict Kingsbury and Richard B. Stewart

  Much global regulatory governance--in fields as diverse as trade and investment, financial and economic regulation, environment and labor, intellectual property, international security, and human rights, as well as the internal management of international organizations—can now be understood as administration. The shift of regulatory authority and activity from domestic to global bodies has outstripped traditional domestic and international law mechanisms to ensure that regulatory decision makers are accountable and responsive to those who are affected by their decisions. In response to these deficits, regulatory decision making by global bodies is increasingly being held to norms of an administrative law character, including requirements of transparency, participation, reasoned decision and decisional review, with a view to ensuring greater accountability and responsiveness. The rise of administrative law-type principles and mechanisms to channel and discipline global regulatory decision making is the focus of the Global Administrative Law Project at NYU School of Law. The project, which engages academics and practitioners in North America, Europe, Latin America, Africa, Asia, and the Pacific region, seeks to study this burgeoning field of practice and theory systematically, with a view to analyzing its elements and shaping its inevitable future development so as to help realize such potential as it offers for justice and effectiveness in global regulatory governance. More than 200 papers mapping and analyzing these phenomena have now been written under the auspices of the project. Although the landscape is highly variegated, the overall picture these papers present is of the formation of a thickly populated global administrative space, and the development of principles and practices that may be termed Global Administrative Law. This paper highlights some implications of analyzing administrative tribunals of international organizations (including appeals boards, appeals tribunals and the like) as part of the administration of global governance and in particular as contributors to, and subjects of, the emerging global administrative law. These administrative tribunals reach their decisions by reference to such sources as: staff employment contracts; staff rules and regulations; internal orders, circulars, handbooks and practices of the organization; the constituent instruments of the relevant organization and of the specific tribunal; and a somewhat open-ended range of other sources including, in particular, general principles of law. Through their decisions on the use of these sources and their interpretations of particular principles they are producers of global administrative law materials. These materials are directly relevant to claimants and to the administration of the institutions each tribunal directly regulates; they are also relevant to other institutions and tribunals (indirectly) through the development of a corpus juris among different international organizations; and they have a wider impact in helping shape and refine concepts of general legal importance such as due process, discrimination, reviewability of discretionary decisions, a duty of care toward staff, and publicness. At the same time, these tribunals are themselves exercising public power in global governance, and thus they are increasingly subject to demands that the organizational design (matters such as appointment of members, enforceability of orders, and appeals) and the operations of these tribunals (fair hearings, reasoned judgments, etc.) conform to emerging standards of global administrative law. Moreover, while the jurisdiction of these tribunals is typically limited to matters concerning the staff of the particular organization involved, their design, jurisprudence and experience have implications for other initiatives to broaden the accountability of intergovernmental organizations, particularly to third parties these organizations may harm. The next section of this paper sets out in more detail the case for viewing much global governance as administration, and the basic elements of the global administrative law approach. The subsequent sections briefly explore a few of the ways in which a global administrative law approach may help international organizations, and specifically international administrative tribunals, to meet effectively some current challenges of legitimacy and accountability.

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  Appeal and Supreme Courts

  Lewis A. Kornhauser

  Volume 8 to Encyclopedia of Law and Economics, Second Edition. With contributions from some of the leading scholars in law and economics, this comprehensive book summarizes the state of economic research on litigation, procedure and evidence. Among the topics covered are the settlement negotiations; discovery; the incentive to sue; theories of legal evidence; evidentiary misconduct; and the privilege against self-incrimination. Procedural Law and Economics will be a valuable reference tool for academics and post graduate students in law, business, and economics. Anyone with a general interest how legal process does and should work will also find much to interest them in this book.