Faculty Chapters

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Economic Analysis of Punitive Damages: Theory, Empirics and Doctrine

Catherine M. Sharkey

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

Linda J. Silberman and Maxi Scherer

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

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

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

Frank K. Upham

When asked a few weeks after his dignity statement before the National People’s Congress on 5 March, 2010, Premier Wen elaborated: “When I said I ‘want all people to live with more dignity,’ I meant mainly three aspects: first, every citizen should enjoy the freedom and rights they are entitled to under the constitution and the law. Regardless of who it is, in the eyes of the law, everyone should enjoy equality. Second, the ultimate goal of Chinese development is to satisfy the increasing material demands of the people, there is no [goal] other than this. Third, society’s complete development must be based on people’s individual development. We want to give people freedom and complete development to create profitable conditions, let their wisdom and skills compete to burst forth. That was what I meant by dignity.” We can roughly characterize these three elements of dignity as legal equality, material sufficiency, and individual human flourishing. Although there remain millions of desperately poor Chinese, the PRC has made remarkable progress toward satisfying Wen’s second element. Progress on the other two elements remains uneven, ironically, perhaps partly because material progress has been so rapid. What many advocates of development fail to realize is that economic growth means change, and change, even in the form of material progress, creates losers as well as winners, destitution as well as affluence, and frustration as well as opportunity This chapter considers whether robust property rights could contribute to the alleviation of some of that pain. In doing so, it considers how property rights may give Chinese the sense of dignity referenced by Wen and that some Western legal philosophers consider intrinsic to law. Before we get there, however, we need to review what most people expect of property law, which is the facilitation of economic growth, not the provision of human\ dignity. We compare the Chinese experience with common assumptions about property rights in society and find that property has not contributed to economic growth in China. In other words, it has not been careful enforcement of property rights that has helped “satisfy the increasing material demands of the people” in Premier Wen’s terms. We also review recent Western scholarship describing roles for property unrelated to economic growth but directly related to concepts of human dignity and speculate how these roles might operate in Chinese society and specifically how property rights could respond to Wen’s call for enhanced opportunities for the “people’s individual development.” We conclude by departing from the celebration of dignity both by Western philosophers and the Chinese Premier and use contemporary American criminal justice to ask whether a legal system focused on individual human dignity may paradoxically threaten other perspectives on justice, perspectives from which China appears more successful than it does in dignitarian terms.
Democracy and Human Rights: Good Companions

Jeremy Waldron

The impression of antagonism between democracy and human rights is fostered, I suspect, by the association of human rights with the practice of judicial review. Many people (including me) believe that strong judicial review is a non-democratic practice sustained by anti-democratic sentiment. But some people support judicial review nonetheless. Because they think it appropriate to use a non-democratic institution to settle disputes about what rights we have and what they require, they conclude that the idea of human rights must be an un- or non- or anti-democratic idea and they expect supporters of democracy to be uncomfortable with it. I think they are wrong, on all counts. In this chapter I shall maintain that the appearance of antagonism between the two ideals is an illusion. I will not do so by arguing, with jurists like Ronald Dworkin, that there is nothing undemocratic about empowering judges to settle important issues that affect the legitimacy of democracy. Dworkin does not believe that democratic ideals oppose the assignment of final decisions in such matters to the judiciary. I think they do. Mostly I think it is high time to break the connection between rights and judicial authority, and to highlight once again the consonance and affinity between the idea of rights and the institutional practices of democracy.
International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence?

Jeremy Waldron

CHAPTER X OF Hart’s book, devoted to the subject of international law, presents a frustrating combination of insight and obtuseness. The insights are to be found in Hart’s discussion of national sovereignty and in his consideration of the significance of the absence of organised sanctions to support law in the international realm. The obtuseness—some of it perhaps more obvious to us now, 50 years after the publication of The Concept of Law, than it was in 1961—has to do with Hart’s attempt to apply the apparatus of secondary rules and, in particular, the idea of a rule of recognition to the international realm, and, as a consequence, his characterisation of international law as, in many respects, more like a system of ‘primitive’ law than like a municipal legal system. Hart is not prepared to dismiss out of hand the question of whether international ‘law’ really is law. He thinks it is an open question whether international law is sufficiently like the standard case of law to be described as law, and his comments have led a number of international jurists to suppose that Hart must have been a sceptic about this subject. Maybe that judgment is made too quickly. But it is clear that theorists of international law have not found much in this chapter to help them with their enterprise. Nor have Hart’s followers found much here to discuss or elaborate. One can’t help thinking that the feel of this chapter—it seems like an afterthought, it departs quite markedly from the flow of the main argument of the book’s later chapters, and it is not revisited at all in the 1994 Postscript—has contributed to sense among analytic jurists in the positivist tradition that jurisprudential issues associated with international law are issues of marginal significance, mostly not worth the attention of serious legal philosophers. Hart notes at the beginning of The Concept of Law that ‘only a relatively small and unimportant part of the most famous and controversial theories of law’ are concerned with issues about the propriety of using the term ‘law’ to describe normative arrangements in the international realm. And both Hart and his supporters seem happy to follow his famous predecessors in that regard. The agenda set out at the beginning of The Concept of Law was ‘to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system’. Analysis of issues involving international law was always going to be a distraction from this task, and Hart did not venture in the chapter to consider the possibility that we would regard international law as a paradigm of law along with the law of a familiar municipal system; he was unwilling to raise that possibility and unwilling to consider how different our philosophical analysis would have to be if both of these were treated as paradigms instead of only one. So international law was treated from the outset as a borderline case. And although Hart acknowledged that such borderline cases generate not only semantic hesitations (about the proper use of the word ‘law’) but also challenging problems, he announced pretty firmly that his discussion of these problems ‘at various points’ is at best ‘only a secondary concern of the book’. Little wonder that his followers seem to have been encouraged to infer the instruction—if encouragement were needed—‘Don’t waste your time on these topics’. All of this is a great pity, because in recent decades the nature and status of international law has emerged as one of the issues in jurisprudence with greatest importance for real-world political debates. Responses to the terrorist attacks on the United States in 2011 and events at the United Nations leading up to the American-led invasion of Iraq led many American lawyers and to question the significance and politicians sometimes even the existence as law of what was called ‘international law’. Very few of the legal philosophers working in the field defined by Hart’s The Concept of Law saw fit to participate in this debate. No leading modern positivist saw fit to try to map onto these controversies what Hart had said in of chapter X the book. Whether this has been due to embarrassment at the chapter’s inadequacies or to a broader indifference would be difficult to say. (The former explanation is probably implausible, for it would presume a degree of alertness to the detail of Hart’s account, and a knowledge of international law, sufficient to be able to identify the inadequacies of the chapter that positivist jurisprudence has seldom disclosed.) Either way the silence is deafening. Analytic legal philosophy has been disgracefully bereft of good writing on international law, and on adjacent issues such as the rise of global law and global standards (such as human rights) for the legitimacy of national law. That is beginning to change, though it has to be said that there is still no leadership in this regard from Hart’s most prominent followers.
People Participating as Peoples: Interests, Ideas and Identity

Jeremy Waldron

“We the people”, the opening phrase of the preamble of the United States Constitution, reflects what was then a revolutionary concept—that power comes from the people. It is participation by the people(s) that justifies, at least partially, the continuing exercise of governmental authority over them. New Zealand's system of government is ideal for examining the participation of the people(s) in governance due to its Westminster origins, small size, accessibility of government, absence of an upper house, MMP electoral system, busy legislative programme and active select committees. The insights gleaned from this book are also readily applicable elsewhere. One of the underlying themes of We, the People(s)—and the reason for the 's' in the title—is the participation of sub-state groups as collectives in governance, such as indigenous peoples and other non-dominant groups. We, the People(s) canvasses a variety of important issues relating to the place of the people(s) in governance. Contributors include: Jonathan Boston, Peter Cane, David Caygill, Claire Charters, Richard Ekins, Amokura Kawharu, Dean R Knight, Karen Knop, Elisabeth McDonald, Matthew SR Palmer, Sir Anand Satyanand, Jeremy Waldron and Margaret Wilson. Contributors: Rt Hon Sir Anand Satyanand, Richard Ekins, Matthew Palmer, Karen Knop, Amokura Kawharu, Claire Charters, Margaret Wilson, Jonathan Boston, Jeremy Waldron, Elisabeth McDonald, Peter Cane, David Caygill, Dean Knight
To Bestow Stability Upon Possession' Hume's Alternative to Locke

Jeremy Waldron

This chapter proposes a shift in emphasis from Locke and Lockean-type theories of the foundation of property rights, to Hume. It argues that while both are bottom-up theories, Hume’s, like the pure force/last occupancy theory, is much less morally demanding and much less demanding of historical information, than Nozickian theories. Unlike the pure force/last occupancy theory, however, Hume’s has some claim to offer a justificatory, even a moral account. It is morally less demanding than Locke’s theory, but it is a moral account nonetheless. The chapter then sets out the main features of Hume’s account of property.
What Is Natural Law Like?

Jeremy Waldron

This chapter analyses the theory of natural law. While acknowledging that John Finnis' work in Natural Law and Natural Rights is a valuable contribution to jurisprudence and practical philosophy, the chapter attempts to show that there is a further question worth asking—what is natural law like?—to which answer Finnis's book does not actually make much of a contribution.
Epilogue: Judging the Judges—Apology and Critique

Joseph H. H. Weiler

After successive waves of EU enlargement, and pursuant to the entry into force of the Lisbon Treaty, the European Court of Justice finds itself on the brink of a new era. Both the institution itself and the broader setting within which it operates have become more heterogeneous than ever before. The issues now arriving on its docket are also often of great complexity, covering an unprecedented number of fields. The aims of this volume are to study the impact of these developments, examine the legitimacy of the Court's output in this novel context and provide an appraisal of its overall performance. In doing so, specific attention is paid to its most recent case law on four topics: the general principles of EU law, external relations, the internal market and Union citizenship. Featuring contributions by Maurice Adams, Henri de Waele, Johan Meeusen and Gert Straetmans, Koen Lenaerts, Ján Mazák and Martin Moser, Stephen Weatherill, Jukka Snell, Michael Dougan, Daniel Thym, Eileen Denza, Michal Bobek, and Joseph Weiler.
In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration

Joseph H. H. Weiler

European legitimacy discourse typically employs two principal concepts: input (process) legitimacy and output (result) legitimacy. But a third concept, political messianism, is central to the legitimation of Europe, though less commonly explored. In the current European circumstance, however, each of these three concepts is inoperable. Any solution to the crisis of Europe will have to draw upon the deep legitimacy resources of the national communities, the member states.
Revisiting Van Gend en Loos: Subjectifying and Objectifying the Individual

Joseph H. H. Weiler

On 13 May 2013, at the seat of the Court of Justice, a day of reflection took place to commemorate the 50th anniversary of the judgment in Van Gend en Loos, delivered on 5 February 1963. During the day, the judgment was examined as a source of the principles which have shaped the constitutional structure of the European Union and from the point of view of its potential for promoting the future development of European integration. This book contains the proceedings of the conference, which took place in English and in French.
State, Church, Nation – A European Perspective

Joseph H. H. Weiler

Presented to Rabbi Dr. Norman Lamm on the occasion of his 86th birthday with thanks to Hashem on reaching this day and prayers to celebrate his 120th birthday with him as well.
The National Immigration Policy Option: Limits and Potential

Katrina M. Wyman

Kiribati, the Maldives, the Republic of the Marshall Islands (RMI), and Tuvalu are small island nations whose existence may be threatened by climate change and whose citizens therefore may have to relocate to other countries. There are concerns, however, that climate change refugees from these and other nations will lack a right of refuge under existing international law and the domestic immigration laws of likely destination countries. These concerns recently have prompted proposals for a new multilateral instrument to give climate-displaced persons a right of refuge as a matter of international law (for an articulation of one of these proposals, see Chapter 10). This chapter argues that there is more potential for using the domestic immigration laws of likely destination countries to respond to climate migration from threatened island nations than is commonly assumed. Although likely destination countries do not have a category of admission specifically for climate-displaced persons, some have immigration provisions that could be the basis for accommodating climate-related migration from some of the most threatened island nations. Policymakers should recognize the potential utility of building on the existing immigration policies of likely destination countries and think of the option of a new multilateral climate displacement treaty as a backstop rather than a top priority. The starting point for the argument in favor of building on existing national immigration policy is that there already is noticeable outmigration from Kiribati, Tuvalu, and the RMI, the three poorest of the four small island nations commonly thought to be most vulnerable to extinction due to climate change. Moreover, outmigration mainly occurs in a relatively orderly way to two highly developed countries (New Zealand and the United States) that in combination with a third (Australia) could afford to increase the number of migrants they admit from Kiribati, Tuvalu, and the RMI. As currently structured, the existing outmigration channels would not be sufficient to deal with large-scale migration from even Kiribati, Tuvalu and the RMI, let alone the Maldives or other countries However, these channels could be expanded gradually to deal with the need to facilitate migration by large numbers of people if climate change requires it. Furthermore, there are important reasons for threatened island nations and likely destination countries to pursue the policy option of gradually expanding existing immigration channels. This chapter focuses on using domestic immigration policy in likely destination countries to deal with climate migration from the most threatened small island nations. However, its point about the utility of national immigration policy also likely extends to cross-border climate migration from other countries. Consider Bangladesh, a country often mentioned as likely to generate large numbers of climate migrants, but not likely to become completely uninhabitable. It is already one of the top source countries for international migrants. Like the most threatened island nations, Bangladesh also may be well served by exploring the expansion of existing outmigration channels to deal with additional cross-border migration required by climate change.
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Addendum: Study on Targeted Killings

Philip G. Alston

This compendium explores how international law deals with this so-called new warfare from the rise in global terrorism, to insurgency and counter-insurgency campaigns, to the resurgence or mercenaries and the privatization of the use of force. Though many of these phenomena are not new per se (terrorism, insurgency, and other asymmetric tactics have long been in use) their predominance within 21st century conflict over the state-on-state, regular warfare that the laws of war were designed for has created new dilemmas for regulating war. Efforts of state actors to deal with these 21st century threats have equally challenged the basic premises of the laws of war. While many have called for a revamp of existing laws of war, a decade after the September 11 attacks there still remains little consensus on how international law should deal with 21st century threats. This book explores some of the critiques of the laws of war framework, suggestions for reform, and existing gray areas that persist in the regulation of armed conflict.
The United Nations: No Hope for Reform?

Philip G. Alston

Utopia is a notion that is inevitably in the eye of the beholder, but the assumption of this analysis is that a strengthened and more efficient UN has the capacity to contribute in essential ways to more effective global governance arrangements. This chapter identifies various steps that would promote the type of realistically utopian reform that this volume seeks to identify. They include the following. Amending the Charter to eliminate the Trusteeship Council and ideally also the Economic and Social Council; ensuring sustainable financing for core UN activities. Promoting a ‘One UN’ approach to on the ground service delivery, but complementing this with a more consultative approach to local actors. Becoming more media savvy. Making vastly better use of new information and communications technologies; moving towards a ‘smart’ and knowledgeable Secretariat. And finally, devoting more resources to three substantive areas (electoral assistance; development of a police rapid response capacity; tackling corruption at the national level).
Towards a Human Rights Accountability Index

Philip G. Alston

The international human rights regime is one of the most important positive legacies to emerge from the twentieth century. The principle of accountability is one of its indispensable characteristics. It is not surprising, then, that the greatest challenge confronting the international community in this domain at the beginning of the twenty-first century is to develop approaches that give substance and meaning to that principle. New initiatives are required at both the national and international levels. While this is a multi-faceted challenge, an important contribution could be made by the development of an index that measures the degree to which governments respect the obligations of international accountability for their human rights performance. These flow both from the United Nations (UN) Charter and from the specific international treaty commitments that they have undertaken. This paper explores the role that indicators have played to date in the human rights field and then explores the shape that a new Human Rights Accountability Index (HRAI) might take in the future. Careful consideration is given both to the advantages and drawbacks of the proposal, and to the ways in which such a concept might best be launched in the context of the Human Development Report. It is important to emphasize that, although the paper takes account of both indicators and composite indices that seek to measure the human rights performance of governments, the proposed HRAI does not aspire to measure performance in the sense of compliance or non-compliance with substantive human rights obligations, such as the right to non-discrimination, the right to free elections or the right to freedom from torture. Rather, it is an index of the extent to which governments have accepted both the principle and the practice of international accountability in the sense of participation in the international human rights treaty regime and of responsiveness to concerns raised or requests expressed by international human rights mechanisms.
Report: Is the International Investment Regime a Form of Global Governance?

José E. Alvarez

In June 2011 the International Council for Commercial Arbitration (ICCA) marked its fiftieth anniversary with a celebratory conference in Geneva, the birthplace of ICCA. This volume, ICCA Congress Series no. 16, comprises the proceedings of the conference, in which eminent arbitration scholars and practitioners assess the current state of arbitration—both international commercial arbitration and international investment arbitration—and what the future holds for arbitration and for ICCA.
Sovereign Concerns and the International Investment Regime

José E. Alvarez

This chapter examines how sovereign investment relates to the international legal regime—consisting of bilateral investment treaties (BITs) and investment chapters of free trade agreements (FTAs)—governing foreign direct investment (FDI). It first considers sovereign concerns with FDI before discussing the challenges to national governance prompted by sovereign investment within the context of the international investment regime. It then analyzes legitimate sovereign concerns with the international investment regime in relation to BITs and FTAs, along with the national or essential security issues raised by sovereign investment.
State Sovereignty Is Not Withering Away: A Few Lessons for the Future

José E. Alvarez

The Westphalian system of nation-states remains the system that we have. State sovereignty, though not unfettered, is not withering away. States have pooled, shared, delimited, or delegated away some of their powers through treaties, but they but can always take back powers that they have previously negotiated away. Now nations are reasserting their ‘sovereignty’ vis-à-vis foreign investors through changes to their national laws or their treaties. Three lessons can be drawn for the future. To the extent there are choices to be made between global regulation and sovereign control, the outcome may not reflect a progress narrative but a historical dialectic that periodically swings back and forth as international norms encounter resistance at the national level, thereby triggering re-evaluation and modification of the international regime or its rules. All international regimes, no matter how well constructed, ultimately rely on states to implement them at the domestic level; how that implementation occurs is subject to considerable state discretion; and much can occur to an international regime as its rules are translated for domestic consumption or application. We need to remain vigilant when it comes to the North/South dimensions of international regimes and reactions to them.
Moral Philosophy

Kwame Anthony Appiah

Moral philosophy and anthropology are each wide-ranging and diverse; and there are surely many ways in which each can illuminate the other’s concerns. In the last half-century or so, in particular, there have been many philosophical discussions in which evidence and arguments from anthropology have played a significant role. An essay that aims, from a philosophical perspective, to engage with anthropological thinking, cannot adequately address all of these discussions, or even all the most important ones. Nevertheless, I shall try, at the start, to sketch the main ways philosophers writing in English over the last half-century or so have engaged with anthropology. That way you will see the broad background against which the issues I focus on are arrayed. I shall then take up in more detail just one area—the discussion of moral relativism. In part, as you will imagine, this is because it is the discussion that I find most interesting . It is also, I think, the most obvious point of disciplinary intersection, one that arises again and again (as we shall see) in many of the other debates. And it is, finally, an especially important issue because it is one where these two fields can usefully enrich public reflection. In debates about foreign policy—in discussions, say, of the issue of what role a concern for human rights should play in framing relations between nations—assumptions about moral universality and relativity are sometimes in the foreground and almost always in the background. There are similar ways in which questions of relativism arise in debates about multiculturalism (Taylor 1994). If there is to be progress in discussion of these questions, I think lessons from both fields will be helpful.
Race' and 'IQ'

Kwame Anthony Appiah

Here is a fact few knowledgeable people dispute: take a random sample of African Americans and a random sample of “white” Americans and give them all some standard American IQ test. If the sample is large enough, the probability is very high that the average IQ of the ﬁrst group will be about 15 points lower than that of the second— an amount that makes the average African-American’s score equivalent to the score of a white American one standard deviation below the white mean. Since IQ measures are designed to ﬁt a standard symmetrical “bell curve”—and, on that curve, about a third of the population lies within a standard deviation on either side of the mean— it follows that just over four-ﬁfths of whites score higher than the average African-American. This fact is central to much debate about race and about intelligence in our society, and so I propose to give it a name: I shall call it “the central datum.” The central datum is that what we in America call the black and white populations diﬀer by about one standard deviation in average IQ. Since Darwin’s cousin Francis Galton published his Hereditary Genius in 1869, the idea that intelligence is measurable, heritable and diﬀerentially distributed, has become a commonplace; and the scientiﬁc study of races was nurtured by many of Darwin’s intellectual heirs. For more than a century, then, a signiﬁcant proportion of Western intellectuals have taken it for granted that facts such as the central datum conﬁrm the view that races diﬀer in intelligence and that the black race is hereditarily less well endowed with intellectual gifts than the white. A good number of people, not all of them intellectuals, believe (or, at any rate, suspect), even today, that the explanation of the central datum is that Negroes—members of the black race—are, on average, hereditarily inferior to Caucasians—members of the white race—in respect of intelligence. I myself doubt that the central datum supports this “racialist conclusion” as I will call it: the racialist conclusion is the judgment that the explanation for the central datum is a hereditary diﬀerence between the black and the white races. In this chapter I want to map out three points at which the racialist conclusion can be challenged; and then go on to make some suggestions about how to make research on genetics and intelligence more intellectually proﬁtable. I take this project to be one in applied philosophy of science. Understanding the conceptual issues can help make better science.
The Case for Contamination: Multiculturalism as the Norm in Contemporary Africa

Kwame Anthony Appiah

I’m seated, with my mother, on a palace veranda, cooled by a breeze from the royal garden. Before us, on a dais, is an empty throne, its arms and legs embossed with polished brass, the back and seat covered in black-and-gold silk. In front of the steps to the dais, there are two columns of people, mostly men, facing one another, seated on carved wooden stools, the cloths they wear wrapped around their chests, leaving their shoulders bare. There is a quiet buzz of conversation. Outside in the garden, peacocks screech. At last, the blowing of a ram’s horn announces the arrival of the king of Asante, its tones sounding his honoriﬁc, kotokohene, ‘porcupine chief’. (Each quill of the porcupine, according to custom, signiﬁes a warrior ready to kill and to die for the kingdom.) Everyone stands until the king has settled on the throne. Then, when we sit, a chorus sings songs in praise of him, which are interspersed with the playing of a ﬂute. It is a Wednesday festival day in Kumasi, the town in Ghana where I grew up. Unless you’re one of a few million Ghanaians, this will probably seem a relatively unfamiliar world, perhaps even an exotic one. You might suppose that this Wednesday festival belongs quaintly to an African past. But before the king arrived, people were taking calls on cell-phones, and among those passing the time in quiet conversation were a dozen men in suits, representatives of an insurance company. And the meetings in the oﬃce next to the veranda are about contemporary issues: HIV/AIDS, the educational needs of twenty-ﬁrst century children, the teaching of science and technology at the local university. When my turn comes to be formally presented, the king asks me about Princeton, where I teach. I ask him when he’ll next be in the States. In a few weeks, he says cheerfully. He’s got a meeting with the head of the World Bank.
Corporate Criminal Liability: Theory and Evidence

Jennifer H. Arlen

Corporations are subject to a host of laws that criminalize acts that are potentially profitable for the firm but harm society. Some of these laws, such as those prohibiting securities and health care fraud, criminalize intentional wrongdoing. Others, such as many environmental regulations, use criminal law to encourage firms to invest in measures to prevent harms that otherwise would naturally occur as part of their operations. Almost all of these laws are enforced through a combination of individual and corporate liability imposed on people who commit the wrong. The central policy question facing enforcement authorities is how to structure individual and corporate civil and criminal sanctions to optimally deter such crimes. This chapter employs economic analysis to examine the optimal structure of individual and corporate criminal liability for corporate crimes. It shows that, in order to optimally deter corporate crime, the state generally needs to impose both individual and corporate criminal liability. It also shows that, for most important crimes, the optimal structure of corporate liability differs from classic optimal individual criminal liability for purely individual crimes, as expressed in Becker (1968). Optimal corporate liability also differs in structure from optimal corporate liability considered in the classic economic models of corporate vicarious liability (Kornhauser 1982; Sykes 1984; Polinsky and Shavell 1993).
Life Without Parole and the Hope for Real Sentencing Reform

Rachel E. Barkow

In recent years, people seeking to limit the use of life without the possibility of parole (LWOP) in the United States have won significant victories. The Supreme Court in Graham v. Florida declared a sentence of LWOP unconstitutionally cruel and unusual for juveniles who commit nonhomicide offenses. Some state legislatures have also limited the availability of LWOP sentences for juveniles. These could be early signals that LWOP is on the same path to fundamental reform that the death penalty has been on for the past thirty years. Whether or not reform ultimately means abolition in some jurisdictions, it could at least mean more limited use and procedural safeguards. In light of these developments, this book asks whether LWOP will become the “new death penalty” in the sense of being a punishment that undergoes significant reform by either the Supreme Court or politicians. In this chapter, I explore some reasons why it is unlikely LWOP will experience the same procedural and substantive oversight that now exists for the death penalty. The chapter begins by highlighting the problem of defining LWOP in a way that will lead to meaningful reforms. If the concern with LWOP sentences is, as the Supreme Court recently suggested in Graham, that they eliminate the realistic hope of release, then other sentences—such as natural-life sentences for which parole is just as unlikely as executive clemency of an LWOP sentence or long term-of-years sentences—would seem to be equivalent. Once one recognizes that these other sentences are comparable, problems of administrability and line drawing pose enormous obstacles to both judicial and legislative reform efforts. The next hurdle addressed by the chapter is the puzzling question of how one should limit LWOP, assuming one can define it. Although some reformers would favor outright abolition, that is exceedingly unlikely given current Supreme Court attitudes about punishment review and American politics more generally. Thus, the question becomes, who should be eligible for LWOP and which categories of offenses and offenders will create enough public sympathy to generate favorable judicial decisions or legislative reform efforts? Outside of juveniles, the pool of candidates is shallow. After addressing these substantive questions of scope, the chapter turns to the likelihood of procedural reforms and explains why LWOP sentences are unlikely to get the same procedural protections as capital cases. The sheer number of such cases is the largest obstacle, but the line-drawing problems are also likely to deter courts and legislators. It is one thing to say that “death is different” for purposes of constitutional analysis and quite another to say that LWOP is. If the Supreme Court were to open the door to procedural protections for LWOP that do not exist for other noncapital crimes, it is hard to see what would keep that door from opening still wider to encompass all noncapital sentences. But neither the Court nor legislative bodies have shown any willingness to provide greater procedural protections in noncapital cases. Because the central question of this book is whether LWOP is the new death penalty, the chapter next discusses an additional significant political obstacle to LWOP reform: the capital abolition movement itself. Anti-death penalty advocates have incentives to prevent LWOP from becoming the “new death penalty” in order to abolish the “old death penalty” and keep it from coming back. The success of abolition campaigns against capital punishment have depended heavily on the existence of LWOP, and it is unlikely that most abolitionists will join the battle to reform LWOP unless and until the death penalty is off the table as an option—and with no risk of return. Finally, the chapter concludes with a note of caution about focusing too much on what makes LWOP a unique punishment—the path paved by the Supreme Court’s “death is different” jurisprudence—as opposed to emphasizing the troublesome aspects it shares with other sentences. While a majority of the Court seems to view the extinction of hope as the main problem with LWOP, that concern is in many ways a distraction. The bigger problem with LWOP, in my view, is that in too many cases it is a disproportionate punishment relative to the offense or the offender. But a concern with disproportionate sentencing is hardly limited to LWOP sentences. Any term of years sentence with or without parole can be disproportionate under the Eighth Amendment. The Court created a “death is different” jurisprudence to avoid facing the hard question of disproportionality outside the capital context. It appears to be on the road to doing the same thing with LWOP. That may be the easier path for the Court’s docket and judicial management more generally, but it falls short of fulfilling the Constitution’s mandate, which covers all cruel and unusual punishments, not only the ones that, in the Court’s view, extinguish hope.