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  Foreword

  Kwame Anthony Appiah

  David Adjaye is one of the world's most exciting and accomplished architects, and has built many highly acclaimed houses and public buildings in the UK and USA. Over a ten-year period, the Tanzanian born, London-based architect has visited 53 major African cities and photographed thousands of buildings, sites and places that few of us will ever be able to visit. This 7-volume set documents Adjaye's tribute to African metropolitan architecture. The individual volumes present cities according to the terrain in which they are situated: the Maghreb, Desert, The Sahel, Savannah and Grassland, Mountain and Highveld, and Forest. Each city is shown in a concise urban history, fact file, maps and satellite imagery, along with Adjaye's personal travel notes and dozens of photographs of the city's civic, commercial and residential architecture. All six terrain volumes feature an introductory essay by Adjaye, and a separate volume is dedicated to essays by leading academics and commentators on Africa.

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  Identity Against Culture

  Kwame Anthony Appiah

  This volume of the Townsend Papers in the Humanities commemorates the twenty-fifth year of the Doreen B. Townsend Center for the Humanities at the University of California, Berkeley. As such, the volume is an attempt to capture the breadth and depth of lectures and events presented by the center. Many are revised versions of lectures and presentations organized in connection with the annual appointment of the Avenali Professor in the Humanities at Berkeley (generously funded by Joan and Peter Avenali), or Berkeley’s Una’s Lecturer (endowed in the memory of Una Smith Ross, Class of 1911); several are based on other events presented by the center over the years, such as the “Humanities Perspectives on Aging” program or the “Futures” lecture series organized to commemorate the center’s tenth anniversary. All are the reflection of a public event before a live audience. We have chosen to retain references to the live event where they occur, though space limitations would not permit the inclusion of audience questions.

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  Identity, Politics and the Archive

  Kwame Anthony Appiah

  Why does it matter that nations should care for their archives, and that they should develop a sense of shared identity? And why should these processes take place in the public domain? How can nations possibly speak about a shared sense of identity in pluralistic societies where individuals and groups have multiple identities? And how can such conversations be given relevance in public discussions of reconciliation and development in South Africa? These are the issues that the Public Conversations lecture series-an initiative of the Constitution of Public Intellectual Life Project at Wits University-proceeded from in 2006. Five years later, cross currents in contemporary South Africa have made the resumption of a public debate to clarify the meanings of identity and citizenship even more imperative, and an understanding of "archive" even more urgent. The 2006 lectures were subsequently collected, resulting in this volume which takes its title from Weber's point, elaborated on in the chapter by Benedict Anderson, that the future asks us to be worthy ancestors to the yet unborn. The book, as did the lecture series, aims to reach a broad and informed reading public because the topic is still of pressing interest in contemporary public discourse. In a changed (and, some might say, degraded) environment of public dialogue, the editor hopes to inspire a rethinking of the very essence of what it means to be a citizen of South Africa. Becoming Worthy Ancestors aims to make accessible the theoretically informed, sometimes highly academic work of its various contributors. With chapters from high-profile international and local contributors, it will be of interest to South African and international audiences. Editing for publication has further enhanced the accessibility of each speaker's thinking without forfeiting any of its complexity, and the addition of an introductory chapter by the editor contributes to the coherence of the volume. While the target audience is the broad public, the book is based on a core of academic thinking and research.

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  Our Library

  Kwame Anthony Appiah

  From Laurie Anderson to Vampire Weekend, Roy Blount, Jr., to Renée Fleming, Stephen Colbert to Bill T. Jones—more than 100 luminaries reflect on the treasures of America’s favorite public library. Marking the centennial of The New York Public Library’s Beaux-Arts landmark at Fifth Avenue and 42nd Street, now called the Stephen A. Schwarzman Building, Know the Past, Find the Future harnesses the thoughts of an eclectic assortment of notable people as they ponder an even more eclectic assortment of objects. From among the Library’s vast collections, these writers, artists, philosophers, scientists, musicians, athletes, architects, choreographers, and journalists—as well as some of the curators who have preserved these riches—each select an item and describe its unique significance. The result, in words and photographs, is a glimpse of what a great library can be.

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  What’s Wrong With Defamation of Religion?

  Kwame Anthony Appiah

  In March 2010, in Geneva, the UN's Human Rights Council (HRC) voted by a narrow margin to accept a nonbinding Resolution on “Combating Defamation of Religions.” (Hereafter, “the Resolution.”) Resolutions like this one have been offered regularly at the HRC and in the General Assembly, have the support of the Organization of the Islamic Conference (OIC) and the Arab League, and have passed regularly over the last decade in all of these various fora. I think this widespread support is regrettable and I hope that this idea does not gain a serious foothold in international human rights law. In fact, the Resolution had less support in March 2010 than it had had in the past and, as this volume goes to press, it appears that the resolution's proponents have abandoned their efforts, at least for the foreseeable future. I am glad that this is so, and in this chapter I want to explain why. To do this, I will have first to say something about the considerations that I think favor laws against defamation in general; my aim is to make the best case for legal sanctions against defamation of religion in particular before recommending against such legal sanctions.

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  Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms

  Jennifer H. Arlen

  This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer leniency to firms that monitor effectively, report misconduct, and cooperate. It begins with an overview of U.S. practice governing corporate liability and the wisdom of granting prosecutors authority to regulate corporate governance. It then considers the traditional U.S. approach to corporate criminal liability and explains why the Department of Justice had to abandon it in order to adequately deter crime. It also examines how corporate criminal liability evolved to embrace a proactive policy of using nonprosecution to convince corporations to deter crime. It suggests that prosecutors have gone too far in regulating companies and that civil regulatory authorities should exercise the sole authority over mandated corporate governance reforms, including monitoring requirements. Finally, it contends that prosecutors should use prosecution and the threat of prosecution to secure ex post cooperation from firms, instead of nonprosecution agreements or deferred prosecution agreements to induce structural reforms.

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  The Prosecutor as Regulatory Agency

  Rachel E. Barkow

  This chapter examines the capacity of both state attorney generals and federal prosecutors to act as regulators based on democratic accountability, institutional competence, and procedural reliability. It first considers the factors that give prosecutors the ability to assume a regulatory role and goes on to discuss corporate regulation by prosecutors. It then compares prosecutors and traditional regulators in terms of accountability and shows that nonprosecution agreements, deferred prosecution agreements, and settlement agreements often decide complex questions of how businesses should operate. It also asks whether prosecutors can make efficient decisions in the business context and whether regulatory agencies possess greater institutional competence than prosecutors. The chapter concludes by assessing the procedural reliability of prosecutorial regulation.

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  A Vision for Scaling Microfinance: More Than Dollars and Smarts

  Deborah K. Burand

  This book is a state-of-the-art discussion of what has succeeded (and failed) in the design and implementation of projects and institutions to assist the poor in developing country economies. In Africa especially, far too many people are still living under conditions of extreme poverty. The goal of the book is twofold: (1) to identify and assess the key processes through which markets affect the livelihoods of the rural poor; and (2) to propose micro- and macro-level policies and innovations to address the problems of inclusion that arise. Featuring contributions from leading scholars and professionals in the field, this volume is timely to all those involved in designing innovative institutions that transfer capital and technologies to low-income countries facing the challenges of poverty alleviation and economic development.

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  A Theory of the Politically Independent Judiciary: A Comparative Study of the United States and Argentina

  Rebecca Bill Chávez, John A. Ferejohn, and Barry R. Weingast

  This chapter specifies the institutional conditions for an autonomous judiciary. It seeks to address the question, when will judges act independently of elected officials? Although scholars agree that judicial autonomy is an essential condition for the rule of law in presidential systems, no consensus exists about the circumstances under which it occurs. We argue that when the executive and legislative branches are united against the courts, the courts have few resources with which to defend an independent course, which may include arbitrating interbranch disputes and upholding rights. In contrast, when significant and sustained disagreements arise among elected officials—such as take place under divided government—judges have the ability to challenge the state and sustain an independent course, with little fear of political retribution. We seek to demonstrate that a country's position on the judicial autonomy continuum depends on more than so-called parchment barrier guarantees of life tenure (or some other long-term length) or protections against salary reduction. Informal practices that allow elected officials to control the courts often overshadow formal (constitutional) guarantees of judicial independence. Institutionalized subconstitutional practices can shape the incentive structure facing judges so that they are unlikely to oppose government policies. These subconstitutional practices can include withholding funds from the judiciary, imposing limitations on the jurisdiction of the courts, or instituting more drastic measures such as removing judges and court packing. Unified government permits the president and congress to employ these practices or to threaten to do so to subordinate the courts.

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  Gun Control after Heller: Litigating against Regulation

  Philip J. Cook, Jens Ludwig, and Adam M. Samaha

  The American system of firearm regulation is again threatened by litigation, but now the threat comes from the opposite direction. In June 2008 the U.S. Supreme Court struck down the District of Columbia’s handgun ban (D.C. v. Heller, 118 S.Ct. 2783), recognizing for the first time an individual constitutional right to own a gun. While the immediate effect of this opinion is only to invalidate an unusually stringent regulation in a city that is also an enclave of the federal government, the domain of this new right has not yet been clearly defined. It will be subject to numerous tests in litigation during the years to come. Existing regulations governing firearms commerce and possession will be challenged by affected parties claiming they violate the new right that the majority of the Supreme Court has discovered in the Second Amendment. Litigation will seek to curtail, rather than extend, restrictions on the gun commerce, but this new scenario is once again an end-around the political process. The “core right” established by the Heller decision is the right to keep an operable handgun in the home for self-defense purposes. If the Supreme Court extends this right to cover state and local jurisdictions through the Fourteenth Amendment, the result of this new litigation against regulation is likely to include the elimination of the most stringent existing regulations—such as Chicago’s handgun ban—and could also possibly ban regulations that place substantial restrictions or costs on handgun ownership. Our analysis is necessarily speculative, but we find evidence in support of four conclusions: [1] The effect of Heller may be to increase the prevalence of handgun ownership in jurisdictions that currently have restrictive laws. [2] Given the best evidence on the consequences of increased prevalence of gun ownership, we predict that these jurisdictions will experience a greater burden of crime due to more lethal violence and an increased burglary rate. [3] Nonetheless, a regime with greater scope for gun rights is not necessarily inferior – whether the restrictive regulations in places like Chicago, California, Massachusetts, and New York City would pass a cost benefit test may depend on whether we accept the Heller viewpoint that there is a legal entitlement to possess a handgun. We develop this view by use of the Coase theorem applied to the subjective value of gun rights. [4] In any event, the core right defined by Heller appears to leave room for some regulations that would reduce the negative externalities of gun ownership. The remainder of the chapter is organized as follows In the next section we characterize private gun ownership and uses, together with the existing system of firearm regulations in the United States. Section 5.3 discusses the initial wave of tort litigation against the gun industry that arose during the 1990s, while section 5.4 discusses the recent Heller decision and what it may, or may not, imply for existing firearm regulations at the federal, state, and local levels. Section 5.5 reviews what is at stake in the litigation against regulation, and provides an analysis from the welfare-economics perspective given alternative entitlements. Section 5.6 concludes.

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  “Nearly Allied to Her Right to Be”—Medicaid Funding for Abortion: The Story of Harris v. McRae

  Rhonda Copelon and Sylvia A. Law

  When several states legalized abortion and, subsequently, the Supreme Court transformed abortion from a crime to a right in 1973 in Roe v. Wade, many assumed that health insurance, private and public, would provide funding for all women to assert that right. For a short time, coverage was unchallenged. This chapter tells the story of Harris v. McRae, the 1980 Supreme Court decision upholding the Hyde Amendment's exclusion of coverage for medically necessary abortions from the otherwise comprehensive Medicaid program. Decided in the context of a growing, religiously-impelled mobilization against abortion and funding, this decision not only gutted the right to abortion for poor women, but it also undermined fundamental constitutional principles. Furthermore, the decision set the stage for restrictive approaches to constitutional protection of fundamental rights affecting the poor, reproductive rights, and previously assumed rights more broadly. As we write almost thirty years later, the Hyde Amendment and the McRae decision remain unchallenged obstacles to comprehensive health care for poor women and to recognition of their full citizenship. The above narrative reflects the horrific experience of many women who could pay for an abortion before Roe v. Wade. The authors began litigating Medicaid cases as fairly new feminist lawyers involved in the political and legal struggles for women's rights, reproductive freedom, and economic justice, and served as co-counsel for plaintiffs in McRae. This chapter focuses on the course and complexities of the litigation. It begins with discussion of an early case that considered state restriction on Medicaid funding for abortion. After placing this issue in the context of the welfare rights movement and the effort to extend legal principles to poor people, the chapter turns to the political backlash against legal abortion that led to the adoption of the Hyde Amendment in 1976. A 14-month intermittent trial, from October 1977 to December 1978, in the U.S. District Court in Brooklyn explored the consequences to the lives and health of poor women of excluding insurance coverage for “medically necessary” abortions as a matter of discrimination against the exercise of fundamental rights. We also explored the role of religious belief and institutional mobilization in the debate about the Hyde Amendment, asserting that the amendment violated separation of church and state and the liberty of conscience. Though ultimately the U.S. Supreme Court's brutal 5-4 decision rejected all these claims, these disputes remain central to the abortion, health care, and church/state debates in the twenty-first century. Finally, the chapter examines the impact of McRae on constitutional doctrine and on the lives and health of poor women. It concludes that it is time to stop excluding abortion from federally funded or regulated health programs and the poor from meaningful constitutional protection.

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  Introduction

  Paul Craig and Gráinne de Búrca

  This is the second edition of a work that first appeared just over a decade ago in 1999. It seemed fitting for a book entitled the Evolution of EU Law, to see what had transpired in the decade between the first and second edition of this work. The inspiration and approach of the second edition remains the same as the first. We asked the contributors to stand back and to consider how their particular subject had evolved over time, to analyse the principal themes, and to assess the legal and political forces that shaped its development. The contributors have performed this task admirably, and we are grateful to them. This book is not, therefore, a text, and the contributors have not been asked to give exhaustive treatment to every nuance or point of detail that pertains to their object of inquiry. They have free rein to tell the story of the evolution of their chosen area as they think fit. There are in any event many ‘stories’ that could be told about the evolution of the topics considered in this book. Several significant changes have been made in this second edition as compared with the first. A number of new topics which seemed particularly prominent in EU law over the last decade—enlargement, the area of freedom, security and justice (including migration as well as civil and criminal law aspects), citizenship, human rights, regulation of financial services, free movement of capital, and cultural policy—have been added. A separate chapter on Agencies, which were previously treated within the chapter on Institutions, and a chapter on the institutional question of the ‘legal basis’ for EU action, have been included. For a variety of reasons, we have not been able to include updated versions of the chapters on the Regulation of the Single Market, the Free Movement of Goods, Regional Policy, or Education and Vocational Training. Several new contributors—Mark Bell, Kieran St Clair Bradley, Christophe Hillion, Pierre Larouche, Steve Peers, Jukka Snell, Alec Stone Sweet, Eva Storskrubb, and Takis Tridimas—have joined the team which wrote the first edition.

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  An Invocation

  Peggy C. Davis

  In her book In a Different Voice, psychologist Carol Gilligan proffered the controversial idea that a psychology of male development could not suffice as a psychology of all human development, both male and female. Since the publication of that revolutionary book and her later work The Birth of Pleasure, which argued that the pleasure of love is a common human denominator often repressed in a hierarchical culture, Gilligan has been recognized by some scholars as a pioneer of feminist thought and vilified by others as an essentialist and a proponent of gender difference. In Enacting Pleasure, a distinguished group of artists and scholars explores the personal and political implications of Gilligan’s account of pleasure and the human psyche. The contributors to this volume come to Gilligan’s work with a wide-range of perspectives—from those who view her ideas as Eurocentric, heterocentric, Freudian, or anti-Freudian to others who see it among the most advanced theories in neuroscience and human biology as well as a blueprint for progressive politics. As a whole, this diverse collection stands as a meditation on the role that love plays in psychology, art, and politics.

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  Looking in Hard-to-See Places

  Peggy C. Davis

  The Birth of Pleasure: A New Map of Love—indeed much of Carol Gilligan's work-grows out of her consideration of outsiders' voices and perspectives. It is most fundamentally a demonstration of what can be learned by considering the position of women in patriarchy, but it is also a demonstration of what can be learned by considering the position of the maverick, the political dissident, or the colonial subject. What follows is a reflection on how easily and how often the outsider becomes invisible, even to those who would honor her. The Birth of Pleasure is centered on the story of Psyche and Cupid from Apuleius's The Golden Ass (1998a) and also importantly focuses on the work of William Shakespeare. In the first part of this reflection, I struggle with my instinct to redirect Gilligan's gaze from these valorized male writers, whom I associate with the patriarchal traditions of Greek myth and Elizabethan drama, to the harder-to-see lives and literature of women and other traditionally neglected outsiders. The Birth of Pleasure also addresses writers who are more easily recognized as outsiders. Gilligan complements her analyses of classical literature with analyses of fiction that she describes as postcolonial, represented chiefly by Arundhati Roy's The God of Small Things (1997), Michael Ondaatje's The English Patient (1992), Jamaica Kincaid's Annie John (1985), and Toni Morrison's The Bluest Eye (1970). In the second part of this reflection, I consider Gilligan's interpretations of writers who conspicuously hold the insider/outsider position of being postcolonial subjects, straddling and blending colonial and indigenous cultures ( or, in the cases of Morrison and Kinkaid, historically slaveholding and historically enslaved cultures). Exploring Gilligan's treatment of classic texts, I find models of resistance that had heretofore been hard for me to see. Exploring Gilligan's treatment of postcolonial texts, I worry that she leaves invisible some of patriarchy's victims and some of those victims' strategies of resistance. I then try to draw a lesson about the value—and the difficulty—of being attuned to the full variety of outsider voices. I begin with two confessions: First, I have always been somewhat uncomfortable with "the canon." I enjoy ancient Greek literature and Shakespeare, but I would never go to these texts in search of liberation from color or caste or gender hierarchies. I think of them as what Audre Lorde called "the Masters' Tools" (1984). My discomfort embarrasses me. I move in worlds in which the promise of canonical literature seems unlimited. Or limited only by ignorance or sloth. And Gilligan, whose work I greatly admire, insists that resistance to patriarchy should be inspired by voices of resistance in classical texts. But the discomfort remains. Second, as I read The Birth of Pleasure, I was annoyed by what I saw as Gilligan's celebration of higher-caste women's love across color lines as a blueprint for liberation from patriarchy. As a woman of color, I struggle against being annoyed by stories of love between men of color and women of the "fairer" caste. But despite my struggles I find it hard to embrace these transgressive unions as models of resistance. The resentment I feel in response to stories of love between "fair" women and dark men embarrasses me even more than my discomfort with classical literature. It feels like a betrayal of people I know and love who are in interracial life partnerships. It seems profoundly intolerant: What fault could possibly be found in love that upsets unjustifiable status hierarchies? My resentment feels petulant. It bespeaks a jealous insecurity rather than a healthy sense of self. I have decided to swallow my embarrassment and force myself to take my discomfort and resentment seriously. I need finally to explain—or to get over—a pesky, subterranean, self-pitying sense that these feelings are justified. I need to find out what these feelings can teach me about caste, racism, and patriarchy. And about the often uneasy relationships between white feminists and feminists of color.

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  Love, Law, and Politics

  Peggy C. Davis

  The claim of this chapter is that law and politics should be grounded in love. This love is quieter than—although just as elusive as—the open-eyed passion of Carol Gilligan's Psyche. It is the fellow-feeling that leads us to presume connection rather than detachment and to respect.the value and voice of each human subject. Like a healthy romantic passion, it requires the courage to face the sometimes stormy weather of relationship. And like a healthy romantic passion, it offers an alternative to tragedy. In what follows, I will explain this radical-sounding claim and then speculate about the kind of culture in which it might find traction. The claim, I will argue, is a lesson of history, and it takes hold when people are able to do two things: to think relationally in public spheres and to avoid the suppression of subordinate voices.

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  The Evolution of EU Human Rights Law

  Gráinne de Búrca

  The subject of the European Union’s human rights law and policy was not included in the first edition of this book in 1999. Although there was a constitutionally significant line of case law of the European Court of Justice on the subject, human rights issues did not feature prominently in EU law at the time, and despite scattered human rights activity across the field of external relations and in the area of gender discrimination, the EU did not, to quote the views of leading commentators in 1998, have a human rights policy. Just over ten years later, the picture is a very different one, and the absence of a chapter on human rights would be a notable omission from a book on the evolution of EU law. There is now an emergent EU constitutional regime for human rights protection, and there is a rich scholarly literature on EU human rights law. This chapter does not attempt to provide an overview of developments in this field or to summarize the analyses contained in the extensive literature. Instead, it aims to add a new dimension to existing understandings of the evolution of human rights law and policy in the EU by returning to reconsider some of the earliest steps of engagement with the issue of human rights protection in the process of European integration, drawing on largely unknown archival material from the early 1950s. To that end the chapter focuses closely on the brief but intense period in 1951 – 52 when the question of human rights protection was prominent on the agenda of those promoting the process of integration, before its abrupt disappearance from the agenda of the new European Communities in 1957. Two significant drafting exercises took place during this time. The first resulted in the draft articles produced by the Comité d’études sur une constitution européene (CECE) in 1952, and the second the relevant provisions of the draft Treaty on a European Political Community (EPC) in 1952 – 53. Little or no attention has been given in the EU legal literature on human rights so far to these early attempts to define a role for the emerging European entity in the field of human rights protection. The reason for this neglect is at one level evident and understandable, since neither attempt ultimately bore fruit. As is well known by students of EU law, the failure of the European Defence Treaty in the early 1950s led to a significant scaling back of ambitions for European integration and for the very idea of a European political community. One of the consequences of this scaling back was that, following the European Coal and Steel Community Treaty, neither the Euratom Treaty nor the EEC Treaty of 1957 made any mention of a role for the EU in relation to human rights, and the earlier drafting attempts of the 1950s were consigned to history.

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  Can We Design an Optimal Constitution? Of Structural Ambiguity and Rights Clarity

  Richard A. Epstein

  Constitutionalism is all the rage around the world today. Every serious student of the topic recognizes, indeed insists, that each nation, especially each emerging nation, should adopt a written constitution to shape the organization of its government. As a matter of common agreement, these constitutions are set apart from the ordinary business of lawmaking that every nation has to undertake on a routine basis. The usual conceit is that a national constitution entrenches the basic and more permanent elements of political governance, sufficient to justify their insulation from the political stresses of the day. It is also commonly agreed that the individuals entrusted with forming new constitutions in modern times do not have the luxury of making incremental improvements on preexisting institutions. The strategy of slow evolution did work within the English context, but it has not been imitated since. Unwritten constitutions necessarily require a period of time for evolution that is no longer feasible when constitutions are self-conscious documents written with a clear instrumental purpose. Conscious design, not Hayekian gradualism, is a necessity, not an option. What judgments should inform the design of an optimal constitution? To flesh out this discussion, three interrelated questions have to be addressed. The first goes to an assessment of human nature: it seeks to identify the forces that drive individual and collective action. The last two go to the key issues of constitutional design. Of these last two questions, one deals with the structure of government. Does a constitution adopt a presidential or parliamentary system?

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  Deferred Prosecution Agreements on Trial: Lessons from the Law of Unconstitutional Conditions

  Richard A. Epstein

  This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.

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  The Imperfect Reconciliation of Liberty and Security

  Richard A. Epstein

  In the current state of American life, it is easy to identify the full range of economic issues brought on by the folly of a nation that thinks that it can tax, regulate, and subsidize its way to economic prosperity. For these issues, we have only ourselves to blame. In dealing with these problems, moreover, the correct solutions all move in one direction. Any set of viable reforms from the present status quo calls for less government— not more— which means that the basic problems of the nation are political, not substantive. The question of national security, and the impact that national security has on individual civil liberties, is not cut from this cloth. As a general matter, many of the American left, which has long favored, or at least tolerated, extensive government regulation of economic markets, has taken quite the opposite view when it comes to civil liberties, where it often opposes government regulation on matters that could be justified even within the framework of a nation dedicated to the principles of individual liberty and limited government. One example is their opposition to punishing any news outlet that republishes, for a general readership, confidential information that it knows was stolen by other individuals. At the same time, many on the American right, who tend to be suspicious of government regulation on economic matters, take quite the opposite line on issues of national security: they favor fairly extensive levels of direct regulation, some of which, as I shall argue, are not consistent with these same principles of personal liberty and limited government. On this, the tenth anniversary of 9/11, the key point about national security is all too obvious: these wounds are not, in any sense of the word, self-inflicted. They are often forced upon us by the worst actions of enemies sworn to our destruction. These groups would not be placated in the slightest by our return to small government policies on economic and social matters. Quite the opposite: on social issues, the authoritarian intolerance of al-Qaeda and its allies leads to their hatred of Western democracies. That hatred, in turn, fuels their willingness to engage in violence and terror against the United States and other nations that foster and protect an open society. There is little doubt that much of this antagonism toward the United States was cultivated by Osama bin Laden, who remained a symbol of the steadfast opposition to the United States for the nearly ten years in which he was in hiding. There is good reason to celebrate his demise at the hands of United States special forces, but no reason to think that his death means the end of the movement that he led for so long. On his death, a new generation of leaders will arise to continue the attack on American values and American institutions. It is unlikely that any of them can, at least in the short run, capture the bin Laden mystique. Yet by the same token they may bring a measure of youth and aggressiveness to their task that poses new threats to the United States and the West. No matter who is in charge, one truth remains: there is little that can be done to placate these diehard enemies. There is much that must be done to resist them.

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  What Is So Special About Intangible Property?: The Case for Intelligent Carryovers

  Richard A. Epstein

  One of the major controversies in modern patent law is the extent to which property right conceptions developed in connection with land or other forms of tangible property can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This chapter defends the thesis that, once the differences in the optimal duration of patents and copyrights is taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property right concepts applicable to land work even better because some of the difficulties in designing a land based system disappear. The short life of patents, for example, obviates the need to create rules dealing with restraints on alienation over time. In addition, this chapter critiques the recent developments that limit the use of injunctions to protect exclusive rights of patent use, in eBay v. MercExchange. In a similar fashion, it notes that the limitations on rights of alienation in spectrum also create major social losses, as does the use of the patent exhaustion rule in the licensing of intellectual property, as applied by the Supreme Court in Quanta v. LG Electronics.

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  Improving the Administration of the NLRA Without Statutory Change

  Samuel Estreicher

  For the first time in more than three decades, there is now considerable political momentum for the passage of significant pro-union amendments to the basic federal labor law, the National Labor Relations Act (NLRA or Act). First enacted in 1935, the Act is administered by the National Labor Relations Board (NLRB or Board), an independent agency of the federal government. Five members serve on the Board when it is at full strength; the General Counsel of the agency is an independent office. The Act was amended to restrict union organizing and bargaining tactics in 1947 and 1959. Aside from the 1974 amendments that extended the Act's reach to the not-for-profit healthcare sector, there have been no further substantive changes in the statute. The Act has not been changed despite a plummeting unionization rate in private companies—from 35 % in the mid-1950s to under 80% today—and persistent complaints from the labor movement and its congressional allies, who argue that employer opposition, both lawful and unlawful, is eviscerating the rights of association and collective bargaining the Act supposedly safeguards. Labor's effort during the Carter administration to bolster NLRA remedies for unlawful employer conduct, the Labor Reform Act of 1977, did not gather enough support to overcome a threatened filibuster in the Senate. Twenty years later, President Clinton had his secretaries of labor and commerce appoint the Commission on the Future of Worker-Management Relations, chaired by Harvard professor John T. Dunlop, who served as Secretary of Labor in the Ford administration. Though tempered by the 1994 midterm election results, the Dunlop Commission recommended greater access to employers' property by union organizers, quicker representation elections, and stronger remedies for employer violations. Those recommendations were not implemented. Since the Clinton administration, a rising chorus of voices among union-side practitioners and academics has questioned whether the NLRA has become obsolete.

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  Articles 14-24

  Franco Ferrari

  Thirty years after the approval on the 19th April 1980, the United Nations Convention on Contracts for the International Sale of Goods, the CISG, has become the law of international sales. In the meantime 76 states have ratified the CISG which make up for more than two thirds of the global trade. Despite CISG's practical importance and its global reach the commentary literature on the CISG in English, the language of international trade, is rather limited. This book is intended to fill this gap and to supplement the few existing commentaries by a truly international work which takes into account the various legal settings in which the CISG is applied. The Commentary is designed as a German type of commentary which provides an authoritative "Article-by-Article" comment to the CISG. Its structure strictly follows the structure of the provisions of the Convention. Specific topics, e.g. E-Commerce and the CISG, comparative contract texts such as Unidroit Principles of International Commercial Contracts, European Principles of Contract Law and Draft Common Frame of Reference, are dealt with in the context of the comments of the pertinent articles. The Incoterms are also dealt with in detail.

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  Getting to the Law Applicable to the Merits in International Arbitration and the Consequences of Getting It Wrong

  Franco Ferrari and Linda J. Silberman

  There are numerous reasons why parties start proceedings in the courts of one State rather than in those of another. They range, as the case law also shows, from differences in procedures and applicable rules of evidence to variations in the efficacy and speed of judicial proceedings. Familiarity with a given system, the language to be used in a particular court, the court’s reputation for fairness (or home court bias), “the quality and ability of the judiciary and the legal profession”, the cost of court proceedings, and the ease of enforcement of the judgment may also influence the choice. Moreover, commentators have identified the “legal climate” as another reason for favoring the court of one State over that of another. Finally, differences in the conflict of laws rules may also affect the parties’ choice of forum. Once the parties have initiated proceedings in a particular court, the law of the forum may operate to limit the autonomy of the parties. In other words, once the parties have started court proceedings, a legal framework is imposed upon them which provides for certain rules with which they must necessarily comply. When parties opt for arbitral proceedings instead of court proceedings, there is also a legal framework—that for arbitration proceedings—but it is generally less restrictive and more flexible. The arbitration regime often allows parties to exercise autonomy in areas where national courts do not permit party autonomy, such as that of procedure. Also, although the rules of conflict of laws applied both in national courts and in arbitration proceedings to determine the law applicable to the merits, i.e., the rights asserted by claimants and the defenses raised and counterclaims asserted by defendants, grant the pardinary ties broad autonomy in choosing the applicable rules (at least as regards contract disputes), the autonomy granted in arbitration appears to be even greater. But a simple reference to party autonomy does not solve the question of the law applicable to the merits of a dispute before arbitral tribunals. The issue of the law applicable in arbitral proceedings is more complex and requires a decision by the arbitrators themselves. Even when the parties have chosen the applicable law in the contract, that choice may raise issues that arbitrators will have to address that cannot be dealt with by simply applying the law chosen. When the parties have not chosen the law applicable to the merits, relevant arbitration laws and/ ​ or the arbitral rules will usually provide some direction to the arbitrators. Our paper addresses both of these situations and offers some normative solutions for ascertaining the applicable law. We also explore the consequences of an erroneous choice of law decision by the arbitrators in the context of annulment and/ ​ or the recognition and enforcement of an award.

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  Trade Secrets and Antitrust Laws

  Harry First

  The antitrust treatment of trade secrets has remained largely hidden. There has been little separate focus on the competition problems that trade secrets may present, even though trade secret protection was raised as a defense in early antitrust litigation. The U.S. federal antitrust agencies’ Intellectual Property Licensing Guidelines treat trade secrecy the same way they treat other forms of intellectual property. Antitrust commentary focused on trade secrets is scarce. In a sense, the antitrust metes and bounds circumscribing the use of trade secrets are as elusive as trade secrets themselves. There is no inherent reason for trade secrets to have escaped antitrust scrutiny. The core of a trade secret is the competitive significance of undisclosed information, so the possession and use of trade secrets would seem bound to raise antitrust questions. For example, can dominant firms be forced to disclose trade secret information to rivals? Those who have such information frequently license its use to others. What restrictions can be placed on a licensee’s use of such information, particularly when the licensee is a competitor of the licensor, or on the licensee’s sales of products that embody trade secrets? The purpose of this chapter is to reveal the competition issues that trade secrecy protection raises. This inquiry shows that although the antitrust treatment of trade secrets fits generally into the debate over the proper antitrust treatment of intellectual property rights, the arguments for according deference to the use of confidential trade secret information are somewhat different, and far weaker, than the arguments for according such deference to the holders of either patents or copyrights. The chapter begins with the fundamental issues for antitrust analysis of trade secrets: What is a trade secret and what consequence should flow from a firm’s decision to choose the trade secret regime when it wants to protect information? The next section maps the state of the law dealing with antitrust and trade secrets, beginning with the early history (which predates the Sherman Act), and then discusses how the courts have dealt with licensing issues under Section 1 of the Sherman Act and with exclusionary conduct under Section 2. The final section sets out and applies a more general framework for antitrust analysis of trade secrets, proposing three guiding principles: (1) trade secrets should receive no deference or presumptions when raised as a defense to anticompetitive conduct; (2) antitrust courts, when assessing the economic consequences of trade secret protections, should be mindful of the legal properties of trade secrets; (3) antitrust courts should respect – but not expand – the bargain that trade secret protection provides to its holders to incentivize investment in the production of information.

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  The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

  Catherine L. Fisk and Deborah C. Malamud

  The great hope of administrative law in the New Deal was that expertise and professionalism, balanced by political accountability and careful institutional design, would yield the best possible governance in a decidedly imperfect world. Administrative agencies were to step in where both the judiciary and the legislature had failed, avoiding the dangers of government by plutocracy and government by patronage. Agencies would discharge government's "responsibility not merely to maintain ethical levels in the economic relations of the members of society, but to provide for the efficient functioning of the economic processes of the state." To do so, they would study social and economic problems thoroughly and regulate wisely relying on scientific or empirical information that courts and legislatures did not consider. Moreover, they would provide a forum in which the stakeholders in a regulated industry could participate in resolving disputes. Sensible policy would emerge through careful and inclusive procedure, reliance on experts and empirical evidence, and political accountability for value choices. Agencies would be responsive to changing circumstances and innovate when necessary, but they would do so with a healthy respect for the rule of law and the value of process. One can find in the early discussion of administrative law particularly high hopes for the National Labor Relations Board (NLRB). James Landis, in his classic 1938 lectures on the administrative state, said the NLRB had as its "jurisdiction the general problem of unfair practices" regarding labor and had as its responsibility the "policing of industry as a whole," not merely, as in the case of other agencies, the "supervision over the welfare of a definable line of business."