Faculty Chapters

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  Governing a Fragmented Climate Finance Regime

  Richard B. Stewart, Bryce Rudyk, and Kiri Mattes

  Summarizes the emergence and current status of climate finance in international climate negotiations; sets forth the broad array of functions that global climate finance institutions must carry out; describes the institutions that are already in place; and outlines the agenda for future institution building that will be needed to implement an effective system of climate finance. The emerging global climate finance regime, where finance will be drawn from a multitude of public and private sources and provided in a variety of forms, raises critical challenges for governance. Arrangements must be made to promote transparency and accountability in both the provision and the application of funds and to ensure that finance is applied effectively and efficiently. There is also a need to develop linkages between different sources of funds, including between public and private finance and among different markets and instruments. The regime must develop and operate within an overall framework that enables trust to grow between donor and recipient countries.

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  Resistible Force Meets Malleable Object: The ‘Introduction’ of Norms of Gender Equality into Japanese Employment Practice

  Frank K. Upham

  When Suzuki Setsuko went to work for Sumitomo Cement fifty years ago, employment prospects for Japanese women were bleak. Sumitomo’s regulations explicitly limited female employees to work ‘not requiring a high degree of judgment’ and “relatively little experience and skill”. It hired only high school graduates; women with more or less education need not apply; and, most importantly for Suzuki, all female employees had to quit upon marriage or the attainment of 30 years of age. Sumitomo’s practices reflected a broad social consensus and were virtually universal among Japanese employers. They also appeared to be well within prevailing law. The Constitution’s gender-equality provision did not apply to private employment, and the “protective” provisions of the Labor Standards Act (LSA) prevented employers from deploying women as freely as their male colleagues. The result was an employment structure that severely restricted women’s work opportunities, but ideally suited the interests of large employers. They could fully utilize women in menial but necessary jobs without having to make them part of the “company family” or grant them “permanent employment”, rhetorical tropes that constituted central pillars of post-war Japanese management. It was this seemingly invulnerable, monolithic structure that Suzuki directly attacked three years later when she sued Sumitomo for firing her after she got married and refused to quit. In the context, the decision to sue is remarkable, but what is even more remarkable is that she won, as did dozens of similarly situated woman in the years that followed. A lot has changed for Japanese working women since that litigation. Japan has anti-discrimination legislation that approaches that of the United States or Europe. Discrimination is not only illegal in marriage or retirement, but also in most other incidences of work life; sexual harassment is illegal and vigorously pursued by its victims; and the law reaches not only direct discriminatory measures but indirect approaches as well. Social attitudes have also changed. In 1982 the then President of the Japan Federation of Employers Associations could state that “by nature, women are better suited for raising children and domestic responsibilities”, without any concern about being contradicted. Indeed, a 1972 poll showed only 9.5 per cent of Japanese disagreeing with gender divisions of labour; by 2007 over 50 per cent disagreed, and over 40 per cent supported continued employment even after childbirth. Perhaps most startling—and unrealistic, as we shall see—over 80 per cent thought husbands should do an equal share of domestic work and childcare. The evolution in legal and social norms is reflected in government rhetoric on the international stage and in policy formation back home. Japan has been actively engaged with the process of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) since 1975, not only sending the required reports, but discussing and taking some of the specific measures urged by CEDAW. Many observers see a direct connection between these international exchanges and domestic attitudinal and policy changes. The reluctance to move forcefully against discrimination that marked the 1970s and 1980s had been replaced at the turn of the century by a series of “angel plans” and legislative efforts, reflecting CEDAW norms and ostensibly aimed at the creation of “a gender equal society”, even if doing so required fundamental changes in Japanese employment and family structures. By 2010, therefore, one could say that Japan was well within the mainstream of attitudes, laws and governmental policies on equal employment opportunity. What one could not say, however, is that the situation of Japanese working women has substantially improved. Despite attitudinal changes and government measures, the status of employed women in Japan remains far behind that of women in other developed countries, including other East Asian countries, and women remain overwhelmingly on their own when it comes to childcare and housework. Furthermore, the prospects for improvement in the future are not bright. In 2008, for example, Japan ranked 58th out of 108 countries in CEDAW’s gender empowerment index, down from 42nd in 2006. Whether judged in relative or absolute terms, progress towards the expressed goal of equality of opportunity has been glacial. In this chapter I investigate why dramatic progress, both in women’s legal rights and in popular attitudes about gender roles, has failed to produce an equivalent improvement in their actual situation. In doing so, I hope to shed light on the contingent nature of legal transplants. Although the usual narrative of powerful donors, brimming with money and expertise, imposing their legal structures and norms on poor countries with little room to resist does not fit the story told in this chapter, there is at least one strong parallel: the resentment of perceived pressure to conform to foreign norms. Some fully embraced such imitation, but the dominant attitude, especially as Japan grew rich, was irritation that it had to satisfy foreigners’ visions of an advanced society, much as it had been forced to do in the mid-nineteenth century. In other ways, of course, the situation was very different. Japan did not need experts to interpret foreign scripts; nor was it under even the metaphorical guns of the carrots and sticks presented to poor countries today. Although Japanese dispute it even today, Japan adopted the norm of gender equality voluntarily and on its own terms. But what happened after the adoption has again many parallels to the other case studies in this volume. The norms, so clear to their creators, were interpreted in many ways by different Japanese actors and were consciously manipulated for political and economic gain, but in the end, at least in the dimension of social survey data and government policy, they triumphed. What did not happen is the transformation in social behaviour that legal transfers, if they “fit” and change values, are supposed to bring about. From this perspective, the sixty-year story of gender equality in Japan may give us some insight into the future permutations of even the “successful” transfers discussed in the other chapters. The first section of this chapter describes Sumitomo Cement and the dozens of cases that followed into the 1970s and 1980s, which occurred in large part with no connection to international feminist norms or institutions. The second part presents the 1985 Equal Employment Opportunity Act (EEOA). It begins with an analysis of the legislative debate, which in contrast to the litigation that preceded it was directly influenced by international norms, and specifically by the declaration by the United Nations of 1976–1985 as the Decade for Women. This section then turns to the statute itself and its impact on subsequent litigation. The third part of this chapter describes Japan’s subsequent engagement in the CEDAW process and the apparent ties between CEDAW norms and subsequent legislation that eliminated weaknesses and loopholes in the EEOA, and brought Japanese anti-discrimination law essentially into line with that of other advanced nations. The last section presents the situation of Japanese working women today. The chapter concludes with an attempt to explain why successful litigation, comprehensive legislation, and the apparent diffusion of international norms of gender equality have not led to an equivalent improvement in the situation of Japanese working women.

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  Democracy

  Jeremy Waldron

  This article begins with a discussion of the meaning of the term democracy. It considers the ontology of democracy, arguing that we should not assume that the idea of rule by the people commits us to anything other than methodological or normative individualism. Democracy is an ideal of persons working together in the context of political procedures that treat them as equals. The fact that there may be tens or hundreds of millions of them involved in these processes does not alter the fact that democracy is a way of respecting individuals (equally) and taking their interests seriously. The discussion then turns to the principle of political equality and the principle of majority decision.

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  Hate Speech and Political Legitimacy

  Jeremy Waldron

  Proposals to ban hate speech are sometimes met with the objection that the restrictions on free speech that they envisage will undermine the legitimacy of the political system that imposes them. I have defended the idea of such restrictions elsewhere, and in this chapter I consider whether this worry about legitimacy constitutes a serious objection. There are a number of arguments in the literature that link the protection of free expression to the flourishing of self-government in a democracy. Some say little more than that, though they say it sonorously and at great length. In a few of these arguments, however, the position is advanced beyond a general concern for the democratic process. It is sometimes said that a free and unrestricted public discourse is a sine qua non for political legitimacy in a democracy. Robert Post makes this argument. Some sharpen the point yet further, arguing that the political legitimacy of certain specific legal provisions and institutional arrangements may be imperiled by the enactment and enforcement of hate speech laws.

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  Judicial Review of Legislation

  Jeremy Waldron

  The Routledge Companion to the Philosophy of Law provides a comprehensive, non-technical philosophical treatment of the fundamental questions about the nature of law. Its coverage includes law's relation to morality and the moral obligations to obey the law, the main philosophical debates about particular legal areas such as criminal responsibility, property, contracts, family law, law and justice in the international domain, legal paternalism and the rule of law. The entirely new content has been written specifically for newcomers to the field, making the volume particularly useful for undergraduate and graduate courses in philosophy of law and related areas. All 39 chapters, written by the world's leading researchers and edited by an internationally distinguished scholar, bring a focused, philosophical perspective to their subjects. The Routledge Companion to the Philosophy of Law promises to be a valuable and much consulted student resource for many years.

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  Justifying Targeted Killing with a Neutral Principle?

  Jeremy Waldron

  This chapter examines a proposed legal norm that would license targeted killing: N1: Named civilians may be targeted with deadly force if they are presently involved in planning terrorist atrocities or are likely to be involved in carrying them out in the future. It explores not only the issue of likely abuses of norms like N1 but also the way in which those abuses disclose inherent difficulties with the norm. The last part of the chapter (Sections VIII to X) makes the case that the liability to abuse of norms like N1 is not just an instance of the general liability of any legal norm to abuse. It is connected also with its content, for N1 represents a relaxation of one of the most important norms we have—the norm against murder—and the justifications adduced for N1 or for similar principles represent a significant modification of our usual way of arguing about murder—a modification in the direction of moral opportunism and unreliable analogy.

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  Safety and Security

  Jeremy Waldron

  People talk about a trade-off between security and liberty. But what do they mean by security? We know what's at stake in the definition of liberty—the difference between positive liberty and negative liberty, and the old distinction between liberty and license. We know something of the distinction between liberty as a generic category and particular liberties that may be regarded as basic or described politically under the category ‘civil liberties.’ We try to be clear about ‘liberty’, because it may make a difference to the trade-off. But we almost never address the question of what ‘security’ means. Although we know it is a vague and ambiguous concept and although we should suspect that its vagueness is a source of danger when talk of trade-offs is in the air, still there has been little or no attempt in political theory to bring any sort of clarity to the concept. There is of course an immense literature on national security and also on collective security in the theory and study of international relations. But these concepts are not quite the same as the security I have in mind. The idea of collective security operates at the wrong level; it concerns security as among the nations of the world (or various subsets of them) as determined by institutions, alliances and the balance of power, whereas I am interested in security conceived of as an attribute of individuals and populations. And national security conveys ideas about the integrity and power of the state itself as an institutional apparatus, which may or may not be related to the idea of ordinary citizens being more secure. Maybe ‘homeland security’ is a better term. ‘Human security’ is another phrase in increasingly common use. In this chapter I shall try to address some of the theoretical issues that a proper analysis of the concept of security—serviceable, for example, for the purposes of a liberty/security trade-off—might involve.

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  The Decline of Natural Right

  Jeremy Waldron

  In a preface he wrote in October 1894 to his book Natural Rights: A Criticism of Some Political and Ethical Conceptions, David G. Ritchie (sometime professor of logic and metaphysics at the University of St. Andrews) made the following observation: “When I began, some three years ago, to write a paper on ‘Natural Rights,’ . . . I had a certain fear that in criticizing that famous theory I might be occupied in slaying the already slain. Recent experience has, however, convinced me that the theory is still, in a sense, alive, or at least capable of mischief. Though disclaimed by almost all our more careful writers on politics and ethics, it yet remains a commonplace of the newspaper and the platform, not only in the United States of America, where the theory may be said to form part of the national creed, but in this country, where it was assailed a century ago by both Burke and Bentham.” Is Ritchie correct in his claim that the theory of natural right never really died in the nineteenth century? It certainly suffered grievous injury at the end of the eighteenth century at the hands of thinkers like Edmund Burke and Jeremy Bentham. But how telling were their blows? In this chapter I shall consider what happened to the theory in the century following the attacks by Burke and Bentham. Both of those critics—the traditional conservative and the utilitarian radical—were responding to natural right as it figured in the ideology of the French Revolution. In 1789 Edmund Burke wanted the world to know that “Englishmen at least are not the converts of Rousseau; we are not the disciples of Voltaire. . . . Atheists are not our preachers; madmen are not our lawgivers. . . . In England we have not yet been completely embowelled of our natural entrails. . . . We have not been drawn and trussed, in order that we may be filled, like stuffed birds in a museum, with chaff and rags and paltry blurred shreds of paper about the rights of man. . . . We have real hearts of flesh and blood beating in our bosoms. We fear God; we look up with awe to kings; with affection to parliaments; with duty to magistrates; with reverence to priests; and with respect to nobility.” Jeremy Bentham, writing a few years later, concentrated his ire on the Declaration of the Rights of Man and the Citizen. In his notorious condemnation of natural and imprescriptible rights as “nonsense upon stilts,” he observed that the force of any argument of natural right “is in proportion to the strength of lungs in those who use it. . . . I mean in the first instance: for ultimately it depends upon the sharpness of the daggers which he . . . has in his pocket.” t was the language of political violence. “When I hear of natural rights . . . I always see in the background a cluster of daggers or of pikes introduced in the National Assembly with the applause of the President Condorcet for the avowed purpose of exterminating the King’s friends. Of late these pikes and these daggers have been exhibited in broad day, and pointed out to reasonable and reasoning men, as gibbets used to be to murderers and thieves.” So was it events, rather than critique, that discredited natural right? One of the things I want to do in this chapter is to consider how far the decline of natural right in the nineteenth century can be attributed to the reaction against the revolution in France, and how far it was the effect of independent streams of thought, such as positivism and historicism. I shall ask why radical thought was ambivalent about the doctrine throughout the century, and why socialist thought in particular was mostly inclined to turn its back on it. As a framework for thought, natural right suffered a radical decline in the social and political sciences. But matters were not so clear in jurisprudence, and natural right lived on to a much riper old age in the writings of some prominent economists. So we have to ask, What is it about this theory that allowed it to survive in these environments, when so much of the rest of intellectual endeavor in the nineteenth century was toxic or inhospitable to it? Finally, with Professor Ritchie, we shall ask how far American thought represents an exception to all of this, and the extent to which and the reasons for which the doctrine survived as a way of thinking in the United States, long after it had lost its credibility in political thinking elsewhere.

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  Toleration and Calumny

  Jeremy Waldron

  The keywords of the Enlightenment—freedom, tolerance, rights, equality—are today heard everywhere, and they are used to endorse a wide range of positions, some of which are in perfect contradiction. While Orwell's 1984 claims that there is one phrase in the English language that resists translation into Newspeak, namely the opening lines of that key Enlightenment text, the Declaration of Independence: 'We hold these truths to be self-evident, that all men are created equal . . .', we also find the Wall Street Journal saying of the Iraq War that the US was 'fighting for the very notion of the Enlightenment'. It seems we are no longer sure whether these truths are self-evident nor quite what they might mean today. Based on the critically acclaimed Oxford Amnesty Lectures series, this book brings together a number of major international figures to debate the history of freedom, tolerance, equality, and to explore the complex legacy of the Enlightenment for human rights. The lectures are published here with responses from other leading figures in the field.

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  Concluding Essay: The Binding of Joseph

  Joseph H. H. Weiler

  This chapter presents a narrative of Jacob. It studies Jacob's relationship with his father, Isaac, and takes a look at several notable events in Jacob's life. These include the rape of his daughter, Dinah, and his sorrow upon receiving news of his son Joseph's presumed death. This chapter analyzes the meanings behind Jacob's responses, identifies lexical difficulties, and determines the centrality of biblical text in the development of civilization.

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  Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay

  Joseph H. H. Weiler

  This chapter examines some of the recent political failings of the EU from the point of view of political theory and political history. It argues that the democratic deficit and lack of accountability of EU institutions has not been remedied by the Lisbon Treaty. It considers that at the root of these problems lies a fundamental flaw in institutional design. The founders of the Union were motivated by an integrationist zeal, a so-called “political messianism.” Thinking along such lines has obscured the ways in which EU institutions have undermined political legitimacy. While not offering any concrete blueprint for new institutions, the chapter sounds an optimistic tone when it argues that principles of democracy and a particular conception of the rule of law may offer a remedy.

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  Dialogical Epilogue

  Joseph H. H. Weiler

  Joseph H. H. Weiler and Bruno de Witte JW: I would like to query the revision clause analysis which seems the apex of Section 1.3 of your chapter dealing with the relevance of the practice of the Member States in resolving the issue—international, yes or no. At its heart the argument seems to flow as follows. In general international treaty law, revision is flexible and subject to a normal default rule of amendment by unanimity of the contracting parties. In concluding a treaty, parties may, however, specify a different revision procedure which, as is often the case, may provide for flexibility such as amendment by majority rather than unanimity. In the EU, by contrast, the revision provisions agreed by the parties are rigidified: not only is unanimity required, but further restrictions apply, such as the involvement of the EU institutions and ratification by each state according to its own constitutional requirements. Further, you correctly point out that, whereas under general international treaty law, the High Contracting Parties of a treaty can effectively amend it by a new treaty, riding roughshod not only over the provisions for conclusion under which the original treaty came into force, but even riding roughshod over the revision provisions in the original treaty. States, as you point out, are Masters of the Treaties they make, both as to form and as to substance. By contrast, you point out, under the EU, the Member States do not have this freedom of form. They must follow the procedural rules in the EU treaties in order to revise them. At least procedurally, they seem to lose something of their ‘mastery of the treaty’.

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  Prologue: Global and Pluralist Constitutionalism - Some Doubts

  Joseph H. H. Weiler

  Like an infectious virus which simply develops new resistant strains when we think we finally have it under control, so it is with . The most recent academic pandemic, particularly virulent (cerebral indigestion being one of its milder symptoms) is the result of a genetic fusion of the ubiquitous Global Constitutionalism and Constitutional Pluralism strains which dominated the 1990s and 2010s. Global Constitutionalism is already, at least in the eyes of some, a discrete academic discipline, with a soon to be published Journal of Global Constitutionalism, with various masters’ degrees, treatises and the other usual accoutrements. Constitutional Pluralism is today the only party membership card which will guarantee a seat at the high tables of the public law professoriate. From my vantage point of editor-in-chief of the deliciously and ambiguously entitled International Journal of Constitutional Law (I∙CON) I have begun to wonder: Is there anyone out there who is not a constitutional pluralist? Who does not believe that the global space is in some form constitutionalized? I do not recall ever using constitutional pluralism in my own writing, but like M. Jourdain, I was instructed that I too, apparently, converse in the prose of constitutional pluralism, which, paradoxically makes me (and everyone else) a comfortable Bourgeois gentilhomme. That, of course, is the price of success of a concept/fad: what begins as heterodoxy becomes prevailing orthodoxy, in this case when Constitutional Pluralism (the maverick constitutional pluralism strain) suddenly emerges as hopelessly politically correct.

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  The Idea of Holy: Nomos as Holiness

  Joseph H. H. Weiler

  This Liber Amicorum, dedicated to Judge Rüdiger Wolfrum of the International Tribunal for the Law of the Sea, highlights paradigmatic changes in international law, a body of law which moved during the 20th century from a law of coexistence to one of cooperation and which is now about to reflect notions of solidarity going even beyond cooperative undertakings. This leitmotif of Rüdiger Wolfrum’s academic research and judgeship is represented in a comprehensive collection of essays by eminent scholars and practitioners of international law covering specific aspects of international law, including law of the sea, human rights, international environmental law, international dispute settlement, peace and security, global governance and domestic law. With its multifaceted and comprehensive overview of the evolution of international law in recent years and detailed study of current challenges this collection is a unique source of insight for all those interested in this fascinating field of law.

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  The WTO: Already the Promised Land?

  Joseph H. H. Weiler

  There are deep inequities in the current system—the most notable and justly notorious being the one rooted in an inequitable distribution of tariff reductions and other barriers (including subsidies) which continue to exclude agriculture to the detriment of many poorer economies (and consumers in the richer countries). There was a distinct political deception in the Uruguay process whereby important systemic reform was pushed and accepted as the multilateral ‘Single Undertaking’, whereas the actual negotiations of terms of trade was left to the usual multi-lateralized (MFNed) bilateralism where each state is on its own and which favours the rich consuming economies with plenty of trade leverage, at the expense of the poorer ones with less leverage or none at all. Two major issues must be tackled: (i) whether the World Trade Organization (WTO) has a ‘constitutional’ future and (ii) whether a global approach will prevail over a regional one. (i) Within the General Agreement on Tariff s and Trade (GATT) and, more recently, WTO the official mantra is still that it is an organization which belongs to its members which is taken to mean the governments of its members. Discourse of change of the WTO in the direction of constitutionalization cannot, to be normatively credible, decouple the legal from the political, the exercise of rights from the responsibilities of power. Only if the WTO develops its institutional framework could a constitutional future become normatively compelling. (ii) Regional Free Trade Area Agreements continue to offer significant political benefits which spill over beyond the partners themselves. They often comprise regional states with a history of conflict, even violence. When successfully concluded and implemented, they enhance a welcome stabilizing interdependence. In conclusion, although in the WTO there is much room for improvement (dispute settlement can be improved by introducing the power to remand cases back to panels; the Appellate Body can rid itself of its fetishistic textual hermeneutics and love of dictionaries; there can be a better system of sanctions which do not depend on trade leverage and which do not reduce trade rather than increase it; transparency, efficiency, and legitimacy can be improved) the WTO of today is Utopia Now. One should, however, eschew widening and deepening the constitutional which replaces the international.

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  Politics and Science in Endangered Species Act Listing Decisions

  Katrina M. Wyman

  Institutions and Incentives in Regulatory Science explores fundamental problems with regulatory science in the environmental and natural resource law field. Each chapter covers a variety of natural resource and regulatory areas, ranging from climate change to endangered species protection and traditional health-based environmental regulation. Regulatory laws and institutions themselves strongly influence the direction of scientific research by creating a system of rewards and penalties for science. As a consequence, regulatory laws or institutions that are designed naively end up incentivizing scientists to generate and then publish only those results that further the substantive regulatory goals preferred by the scientists. By relying so heavily on science to dictate policy, regulatory laws and institutions encourage scientists to use their assessment of the state of the science to further their own preferred scientific and regulatory policy agendas. Additionally, many environmental and natural resource regulatory agencies have been instructed by legislatures to rely heavily upon science in their rulemaking. In areas of rapidly evolving science, regulatory agencies are inevitably looking for scientific consensus prematurely, before the scientific process has worked through competing hypotheses and evidence. The contributors in this volume address how institutions for regulatory science should be designed in light of the inevitable misfit between the political or legal demand for regulatory action and the actual state of evolving scientific knowledge.

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  Sinking States

  Katrina M. Wyman

  In May 2009 the New York Times Magazine published an article about the efforts of the president of the Maldives to deal with the threats that climate change represents to his country (Schmidle 2009). These threats are serious. Like other small island states around the world, the Maldives may disappear because of the rise in sea levels due to climate change. Facing the possible submergence of most of the country’s land mass, President Mohamed Nasheed is not only trying to encourage leading greenhouse gas emitters such as the United States to reduce their emissions, but also is beginning to plan for the possibility that the residents of his country will have to relocate. The article reported that the president has “proposed moving all 300,000 Maldivians to safer territory, he named India, Sri Lanka and Australia as possible destinations and described a plan that would use tourism revenues from the present to establish a sovereign wealth fund with which he could buy a new country—or at least part of one—in the future” (Schmidle 2009, 40). At least one and possibly two other small island states also are seeking ways to resettle their residents because they similarly fear losing their territory to sea-level rise.

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  Immodest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law

  Kenji Yoshino and Michael Kavey

  In a foundational 1999 essay, Professor Mark Tushnet outlined three frameworks through which to consider the contributions of comparative constitutional law: functionalism, expressivism, and bricolage. According to Tushnet, ‘Functionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance.’ Expressivism, in contrast, looks more to the symbolic, rather than to the instrumental, aspects of constitutions: ‘According to the= expressivist view, constitutions help constitute the nation, to varying degrees in different nations, offering to each nation’s people a way of understanding themselves as political beings.’ Finally, bricolage, a term borrowed from Claude Lévi-Strauss, takes up constitutional analogs from other nations without much concern about justifying their selection or deployment. Tushnet does not claim that these perspectives are exhaustive. His taxonomy nonetheless provides a useful starting point to consider how comparative constitutionalism might illuminate rights relating to sexual orientation. Tushnet does not indulge in hyperbole about the contributions of comparative constitutional law. As he acknowledges, his ‘claim is, in the end, rather modest: U.S. courts can sometimes gain insights into the appropriate interpretation of the U.S. Constitution by a cautious and careful analysis of constitutional experience elsewhere.’ We share this assessment. Nevertheless, we contend that the modest contributions of comparative law acquire enhanced force when the claims made by constitutional interpreters are themselves immodest. In the context of sexual orientation, constitutional arguments often assume a categorical, ‘always/everywhere’ tenor that exposes them to contestation on comparative grounds. We develop this claim by focusing on three issues: bans on lesbian, gay, and bisexual (LGB) individuals from military service, the criminalization of same-sex sexual conduct, and relationship recognition for same-sex couples. We follow Tushnet in using US constitutional law as our primary point of departure, solely because we are most familiar with it. We diverge from Tushnet’s taxonomy in some respects. Tushnet describes functionalism as a means to examine how different constitutional provisions and arrangements serve similar functions in different legal systems. Through this inquiry, he suggests, it may be ‘possible to consider whether the U.S. constitutional system could use a mechanism developed elsewhere to perform a specific function, to improve the way in which that function is performed here.’ Expanding the perspective slightly, we examine here how particular rules within legal and constitutional institutions (such as bans on open service by LGB people in the military or bans on same-sex marriage) have been justified in constitutional law by reference to the functions that those norms purportedly serve (such as national security or procreation). Put differently, we examine not only constitutional institutions, but also constitutional justifications. We also depart from Tushnet’s taxonomy in taking bricolage out of the conversation. Bricolage accurately describes how comparative constitutional law often works. However, we are not persuaded, as yet, that this framework has an independent normative justification. As Tushnet acknowledges, it has a random, ad hoc quality. We therefore focus on the functionalist and expressivist modalities of comparative constitutional interpretation. We believe that bans on gays from military service provide a particularly sharp instance of the functionalist modality, while bans on sodomy provide an equally sharp instance of the expressivist modality. In contrast, we believe that the relationship recognition cases demonstrate a confluence of functionalism and expressivism.

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  Resolution Authority

  Viral V. Acharya, Barry E. Adler, Matthew Richardson, and Nouriel Roubini

  Experts from NYU Stern School of Business analyze new financial regulations and what they mean for the economy. The NYU Stern School of Business is one of the top business schools in the world thanks to the leading academics, researchers, and provocative thinkers who call it home. In Regulating Wall Street: The New Architecture of Global Finance, an impressive group of the Stern school’s top authorities on finance combine their expertise in capital markets, risk management, banking, and derivatives to assess the strengths and weaknesses of new regulations in response to the recent global financial crisis. • Summarizes key issues that regulatory reform should address • Evaluates the key components of regulatory reform • Provides analysis of how the reforms will affect financial firms and markets, as well as the real economy The U.S. Congress is on track to complete the most significant changes in financial regulation since the 1930s. Regulating Wall Street: The New Architecture of Global Finance discusses the impact these news laws will have on the U.S. and global financial architecture.

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  Bankruptcy as Property Law

  Barry E. Adler

  What must bankruptcy law be? As it turns out this question has a simple answer. There is exactly one function bankruptcy law must serve. It must govern mutually insupportable obligations. Or, one might say, any law that governs mutually insupportable obligations is bankruptcy law. That is, bankruptcy law is property law. To understand this claim, consider first what almost anyone would see as a typical bankruptcy setting. A borrower arrives on hard times, unable to repay her debts in full and with liabilities that exceed her assets. Her creditors seek to collect, but cannot get blood from a stone, so not all of them will succeed; i.e., the debtor is insolvent. There are many things that bankruptcy law could do in response to this debtor’s financial crisis. The law could, for example, stay the creditors’ individual collection efforts in favor of a collective process and discharge the debtor from her obligations, in whole or in part. Indeed American bankruptcy law does each of these things for individual and corporate debtors. But the law needn’t do either. There is only one thing bankruptcy law must do, if there is to be law at all in this situation: it must decide which of the creditors, if any, gets the debtor’s assets. Put another way, because creditors of an insolvent debtor have conflicting claims against assets, bankruptcy law must establish which of the creditors has a superior interest in those assets. This is a function of property law too. This point has been overlooked because bankruptcy law has become associated so closely with process – the substitution of collectivization for unilateral creditor collection – and because, except through its provision of process, Congress has largely deferred to state law on questions of property rights. But whether the federal government or the states provide the rules, there must be some way to determine who prevails when claims conflict; such determination is the essence of bankruptcy law and it is also property law. The first part of this chapter explores this theme further and describes how process myopia has led Congress to overlook an important opportunity for reform of bankruptcy entitlement: priority for tort claims. The second part of this chapter shifts perspective. Just as it has not been universally understood that the question of insolvency, a standard bankruptcy law topic, is truly a property law topic, it has also been less than fully understood that other basic law doctrines reflect insolvency concerns. This idea is briefly expounded below.

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  Foreword

  Philip G. Alston

  This work examines the achievement of different countries in providing socio-economic rights through their constitutional frameworks so as to meet the millennium development goals. It argues how constitutions can either support rights or obstruct the achievement of rights related to education, food, water, housing, health, sanitation, work, sustainable development, etc. Emphasizing the need to pursue millennium development goals far beyond 2015, it explains that a constitution must provide institutions and procedures to translate constitutional ideals into reality. It highlights the critical decisions that need to be made in the drafting of Bill of Rights, and explains options that are likely to extend the scope of rights to make them effective in practice. It makes a comparative study of the rights provided in various constitutions and also studies them in reference to women, minorities, and indigenous people. It further stresses upon the need for independent institutions to deal with complaints against the state for maladministration and unfair discrimination along with action by civil society to realize the millennium development goals.

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  Using International Law to Combat Unlawful Targeted Killings

  Philip G. Alston

  International law does not offer any recognized definition of what constitutes a ‘targeted killing’ and the confluence of diverse legal frameworks further complicates matters. For the purpose of discussion, targeted killing is defined as the intentional, premeditated, and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator. In recent years such killings have been justified both as a legitimate response to ‘terrorist’ threats and as a necessary response to the challenges of ‘asymmetric warfare’. The invocation of these justifications has led to a highly problematic blurring of the boundaries of the applicable legal frameworks, which include human rights law, the laws of war, and the law applicable to the use of inter-State force. Moreover, the States concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum. This chapter spells out the appropriate legal framework and identifies measures that should be taken to ensure appropriate accountability.

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  Foreword

  José E. Alvarez

  International Organizations and the Idea of Autonomy is an exploratory text looking at the idea of intergovernmental organizations as autonomous international actors. In the context of concerns over the accountability of powerful international actors exercising increasing levels of legal and political authority, in areas as diverse as education, health, financial markets and international security, the book comes at a crucial time. Including contributions from leading scholars in the fields of international law, politics and governance, it addresses themes of institutional autonomy in international law and governance from a range of theoretical and subject-specific contexts. The collection looks internally at aspects of the institutional law of international organizations and the workings of specific regimes and institutions, as well as externally at the proliferation of autonomous organizations in the international legal order as a whole. Although primarily a legal text, the book takes a broad, thematic and inter-disciplinary approach. In this respect, International Organizations and the Idea of Autonomy offers an excellent resource for both practitioners and students undertaking courses of advanced study in international law, the law of international organizations, global governance, as well as aspects of international relations and organization.

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  The Once and Future Foreign Investment Regime

  José E. Alvarez

  The McDougal-Lasswell-Reisman approach to international law, otherwise known as the “Yale” or “New Haven” School, is a powerful tool for dissecting how international legal regimes originate and evolve over time. As far back as 1959, Myres McDougal and Harold Lasswell argued for a new form of jurisprudence that was built upon, but went beyond, the insights of American legal realism. Their new “constructive jurisprudence of problem-solving” was situated in a larger context of world social events and processes, was attentive to the strategies of powerful actors (including groups and individuals and not merely the governments of states), paid heed to varied legal decision-making processes, and sought to clarify how international legal regimes fit within a system of public order that contributes to human dignity. This “policyoriented” approach stressed that international law could not be insulated from international politics and required an interdisciplinary analysis capable of going beyond strict positivism to consider the goals, aspirations, and the conduct of all the diverse participants in the international legal process. Although New Haven scholars acknowledged that nation states continued to be the predominant actors in the “global constitutive process of authoritative decision,” they anticipated today’s international relations scholars of the “liberal school” in acknowledging the impact of numerous non-state actors both internal to and outside the state; they anticipated the “democratization” of international law. McDougal, Lasswell, and Reisman also emphasized whether emerging legal prescriptions would actually advance the eight values that they argued produced “security.” As their broad concept of security suggests, the New Haven school did not examine only decisions bearing on so-called “high” politics, such as military security. Years before numerous global financial crises made the reality of economic interdependence obvious to all, McDougal and his colleagues noted that a “breakdown of any sector of [the] global economy is felt everywhere else.” Decades before globalization became a truism, they anticipated how the international flow of goods and services would make all nations dependent on the “resources, skill, labor, goods and markets” of others. This essay reexamines the rise and evolution of the contemporary international legal regime governing international investment in light of the insights of the New Haven school. In doing so, this essay critiques a leading game theoretic account of that regime, going beyond it to describe a regime that continues to evolve with the needs of its principle stakeholders.

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  Narrative as Possibility

  Anthony G. Amsterdam

  Carol Gilligan's methodology, like her subject matter, is complex. I will talk about only one aspect of it: the use of myths and literary works to explore how people come to terms with themselves and the world. This includes Gilligan's reading of the tale of Psyche and Cupid; of the myths of Oedipus and the patriarchal quartet that Gilligan speaks of as "Odysseus and Aeneas, Abraham, and Agamemnon"; and of five novels: The Scarlet Letter (1850),Annie John (1985), The Bluest Eye (1970), The God of Small Things (1997), and The English Patient (1992) (Gilligan 2002). Even this one aspect of Gilligan's methodology resists reduction to a single procedure, for Gilligan is doing several things at once with these narratives. She is invoking or evoking them in the tradition of Freud as evidence of human psychological processes that she finds mirrored in them. Conversely, in the tradition of anthropologist Géza Róheim, she is explicating the stories themselves, interpreting their meaning by reference to basic movements of the human mind or spirit that they encode. The psychological processes that Gilligan sees reflected in the stories are, of course, quite different than those that Sigmund Freud or a Jungian such as Marie-Louise von Franz saw in the same or similar stories, and Gilligan's interpretations of the stories are quite different than those of anthropologist and psychoanalyst R6heim or those of a contemporary Freudian analyst of myths like Richard Caldwell. But the purposes for which Gilligan is examining the stories include those that led earlier insightful theorists of human behavior to attempt to understand it better by studying stories, as well as those that led earlier insightful literary critics to attempt to understand stories better through studying psychological theory. These purposes are ambitious, each in its own right. But I mean to put them aside and to focus on another use that Gilligan makes of stories—a use that is more distinctive and radical. This is Gilligan's use of stories to transform what is into something that could be in order to enable a counter-transformation of something else that could be into something that is. Elementally, Gilligan dissolves the incommensurability between two planes of existence: our experience of life as it is, which we ordinarily take to be life as it must be, the inevitable human condition, and our vision of some better world that, lamentably, we were not born to inhabit. By translating both of them into the lingua franca of narrative, making stories out of both of them, she enables us to see that we are free to choose between them.