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  Antitrust Without Borders: From Roots to Codes to Networks

  Eleanor M. Fox

  Antitrust law has moved from a national enterprise to an international enterprise. Markets transcend national boundaries, and many problems appear to require supranational or cooperative solutions. The 1990s were an era of visions of a multilateral framework, possibly under the aegis of the World Trade Organization. As the 1990s drew to a close, multilateral agreement seemed more remote, and networking solutions seemed more practical and attractive. International antitrust today is less “world antitrust” and more “antitrust without borders”. This chapter describes the intellectual journey from hierarchy to networking; although the journey is not over. Using the subsidiarity principle, it identifies the problems that can be tackled horizontally, and how and in what forum; it identifies the problems that still need a solution from the top; and it suggests that, at least in the short term, more targeted solutions will be sought for the truly global problems.

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  Linked-In: Antitrust and the Virtues of a Virtual Network

  Eleanor M. Fox

  If networking is the new world order1, antitrust law is a provocative example. Antitrust law is part of a genre. The genre is economic law that is national in origin, that has been adopted in scores of countries, and that addresses conduct that increasingly transcends national borders. Within this genre, cooperation is needed to carry out tasks that lie at the core of the law; commonality in rules, standards and modes of analysis is desirable to facilitate a linked world system and to soften clashes; and rules of priority and modes for respect are needed to intermediate differences. Moreover, nations that have recently adopted the law, and especially developing countries, appreciate guidance from more experienced jurisdictions, and the guidance itself is part of a feedback loop that generates soft norms. Finally, the area of law has been resistant to becoming international law. In this genre, networking fills a real need in a globalized world. This article contains four parts. Part one explores the internationalization of markets and the stalled attempt to achieve an international law of antitrust. Part two explores the rise of the International Competition Network (ICN), which is a unique, virtual network of competition law officials. Part three explores the functioning of the ICN, its benefits and its limitations. Part four contains an assessment and conclusions. This article argues that the ICN provides an outstanding example of a vehicle for interaction and cross-fertilization among national authorities, producing some convergences of law, procedures and policy; increasing knowledge and understanding; and facilitating mentoring and other collaborative relationships. It observes that, in spite of great efforts of inclusiveness, the ICN agenda is principally set and the norms principally forged by the developed world, although consensus when reached involves give-and-take on all sides. The article explores whether the ICN, in spite of its founding concept of “no power,” has power deriving from the soft-norm formation that it generates. The article ends with an assessment of the ICN as it is and might be. It concludes that the ICN has exceeded expectations of effectiveness to accomplish its circumscribed mission and that it can be credited with a high degree of legitimacy. By its nature, it is not sufficient (and not intended) to accomplish tasks that could create more nearly seamless antitrust governance. For the future: The ICN has surprisingly strong (virtual) roots; but it needs continued leadership and new momentum, some of which can be supplied by mining the depths of controversial issues that it has thus far chosen to avoid.

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  Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making

  Barry Friedman and Andrew D. Martin

  The United States prides itself on its adherence to the rule of law. Although the phrase itself is mushy and susceptible to many definitions, surely one interpretation is that disputes are resolved on the basis of the facts and pre-existing legal rules. Law implies a certain regularity of process; it rests on the notion that like cases will be treated alike. As thus defined, the law plays prominent in countless litigated disputes every day, and transactions of all sorts occur in the law’s shadow. Yet many political scientists are deeply skeptical that law does, or even can, play the role claimed for it. Studies of judicial decision-making often seek to prove that forces beyond the legal doctrine control case outcomes. At the extreme, some political scientists seem prepared to state that law does not and cannot constrain judges, and that as a result legal disputes are resolved by such things as the ideological preferences of judges, or the pressures exerted on them by other political actors. Winning and losing in a court of law, to believe much of what one reads in political science, often depends primarily if not solely on whether the judge personally or ideologically favors your cause, on whether she worries how other governmental officials will respond to her decision, on whether she fears reversal, or perhaps even hopes for a promotion. One way to evaluate the disagreement between political scientists and those who believe in the efficacy of law and legal process is to model the process of legal decision-making. What follows is an effort at clarification and specification. Our goal is to guide those who are interested in modeling law, as well as to offer some gentle critique to some who think they have been, but have not. Many of our points are hardly earth-shattering ones, yet they often seem to go unrealized or misunderstood. For the most part they are derived from observations made by those in the legal profession. Here, we agree with Frank Cross that an “internal perspective can amplify the understanding provided by external observation”. We begin by discussing why one might want to model law. This is an important starting point because the apparent motivation of much of the political science literature is to establish that law cannot possibly constrain judges. Yet to come at the problem in this way is already to betray a conception of what judges do that differs substantially from the view held by those in law. In the world of law, what typically is referred to as legal doctrine performs a number of functions. One is to guide and channel judicial decision-making so that judges, even if they have discretion, exercise it in a cabined way. Another function of law is to permit prediction about how disputes might be resolved, so that society can operate. Constraint plays some role in both of these functions, to be sure, but it is a far more modest and nuanced one than discussed in much of the literature of politics. Next we argue that most of what claims to be a legal model in the political science literature (a) is not a model or (b) does not model law. Here we specify what it means to have a model of law, and we acknowledge the work of those scholars who have attempted to do so. There have been some recent promising steps toward modeling law, often as collaborative efforts among political scientists and legal academics. We distinguish these recent tentative steps from the “legal model” that has been long discussed among some scholars of judicial behavior in political science. We then seek to move forward the modeling of law in a modest way by drawing some distinctions that are prominent in internal understandings of the law. Although the concept of law is elusive, and precise definition is best left to scholars of jurisprudence, we believe these simple distinctions can offer guidance to those who seek to model law, or to test such a model empirically. In large part these distinctions serve to narrow the domain in which a simple descriptive or explanatory model of law might operate successfully. We conclude by explaining that political scientists have been looking for law in (mostly) all the wrong places. The vast majority of political science studies of judicial behavior use as their domain constitutional or public law cases, where law is least determinate. They tend to bypass common law or statutory regimes, such as those involving contract or commercial law, where law’s mechanisms seem to operate most effectively. By the same token, there is a tendency to study the decisions of the Supreme Court, or other high appellate courts, when intermediate appellate courts and trial courts—if not disputes that never make it to court—are the places in which one is most likely to find the regularity of law. Finally, although this is changing, most political science studies also look only at votes on the resolution of cases, rather than the opinions of the judges themselves, which may be appropriate to the study of judicial behavior, but not to law itself.

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  Trade Secrecy in Willy Wonka's Chocolate Factory

  Jeanne C. Fromer

  Roald Dahl’s Charlie and the Chocolate Factory is well-known as a dark fantasy in which five children win a visit to a whimsical candy company. Less conspicuous is the legal issue of trade secrecy driving the novel’s plot. Secrecy is not indigenous to fictional representations of the candy industry, but is widespread throughout its real- world confectionary counterparts of today and yesteryear. An investigation of the need for secrecy in this commercial sphere raises fundamental questions about the role of legal protection for misappropriations of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent law. Dahl’s story depicts Willy Wonka as an extraordinary innovator of candies. Early in the story, the novel’s title character, Charlie Bucket, receives a mere taste of some of Wonka’s many creations from the descriptions of Grandpa Joe, Charlie’s grandfather, of ‘a way of making chocolate ice cream so that it stays cold for hours and hours without being in the icebox’, ‘marshmallows that taste of violets, . . . rich caramels that change colour every ten seconds as you suck them, . . . chewing gum that never loses its taste, and candy balloons that you can blow up to enormous sizes before you pop them with a pin and gobble them up’. In his depictions, Grandpa Joe is careful to stress that many of Wonka’s methods for producing his candies are ‘most secret’ to protect his ideas from appropriation by others. In fact, Wonka’s methods and his perpetual stream of product ideas are so coveted that three of his competitors, Fickelgruber, Prodnose and Slugworth, have tried to steal these ideas. As Grandpa Joe tells it: ‘All the other chocolate makers, you see, had begun to grow jealous of the wonderful candies that Mr. Wonka was making, and they started sending in spies to steal his secret recipes. The spies took jobs in the Wonka factory, pretending that they were ordinary workers, and while they were there, each one of them found out exactly how a certain special thing was made.’ The spying has been successful, as: ‘soon after th[e spying], Fickelgruber’s factory started making an ice cream that would never melt, even in the hottest sun. Then Mr. Prodnose’s factory came out with a chewing gum that never lost its flavour however much you chewed it. And then Mr. Slugworth’s factory began making candy balloons that you could blow up to huge sizes before you popped them with a pin and gobbled them up.’ Unsurprisingly, Willy Wonka grew frustrated and feared financial ruin were his competitors to persevere in the thievery of his ideas. As things stood, he would be investing his resources and energy to produce new types of candies and novel ways of making them, while his competitors would be reaping a good deal of his creativity’s sweet rewards, so to speak. Not content with that result, Wonka opted to cease all operations at his chocolate factory, by firing all of his employees, ‘shut[ting] the main gates and fasten[ing] them with a chain’, and stopping the factory’s machines and chimneys. With no chocolates or candies being made, Wonka disap- peared from sight for months. While Wonka was not applying his creative talents to making chocolate, he was using them to find a solution to his competitors’ stealing. He located a tribe of Oompa- Loompas, tiny song-loving people from Loompaland. The Oompa-Loompas loved cacao beans, a prime ingredient for chocolate, but hardly any of the beans were available in Loompaland. Willy Wonka was therefore easily able to convince them to leave the dangerous jungles of Loompaland and come and live in his candy land of a factory, working for him there in exchange for an unlimited supply of cacao beans and chocolate. With the immigration of the Oompa-Loompas, Wonka was able to reopen his chocolate factory. He had found a way to get distinctive-looking laborers who would not leave the factory, which protected him in two ways from divulgence of information about his candy-making processes and products. First, as the Oompa-Loompas would be living at the factory and without access to outsiders, there would be little to no chance for them to reveal Wonka’s sweet nothings to his competitors. Second, because Wonka would not be letting in any employees other than the Oompa-Loompas and because they had a unique look, it had become exceptionally difficult, if not impossible, for Wonka’s competitors to sneak spies into the factory under the guise of employment.

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  Ethical Issues in Medical-Legal Partnership

  Paula Galowitz, Jerome Tichner, Paul R. Tremblay, and Steven D. Blatt

  Not every illness has a biological remedy. Poverty, Health and Law presents health in the broader social context of people's lives, providing insights into the advancement of health through legal advocacy and interdisciplinary solutions to complex social problems. Focusing on basic legal rights and their relation to health—income and employment, housing, education, legal status, and personal safety—the authors provide information and insight into how the law may be used as a tool to improve health and how health care providers and lawyers can work together to invoke more effective and preventive remedies for patients and clients. As America prepares for major reform of its health care system, Poverty, Health and Law brings to the forefront the need to address the root causes of illness and poor health, particularly among vulnerable populations, by exploring remedies and innovations both within and outside of the health care system.

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  Concepts of Culture in the Sociology of Punishment

  David W. Garland

  Contemporary work in the sociology of punishment gives a prominent place to the concept of culture and to cultural analysis. Indeed, it has become conventional wisdom that penal institutions have important cultural dimensions and consequences and that ‘cultural factors’ are prominent in the causal determinants that shape penal policies and practices. A parallel emphasis on ‘the cultural’ is also apparent in contemporary criminology. In these respects, the sociology of crime and punishment is aligning itself with an intellectual trend that has occurred all across the humanities and social sciences—a cultural turn that seems altogether appropriate in our mass-mediated, image-saturated, late-modern world. But this embrace of ‘culture’, however timely and appropriate, threatens to introduce a degree of conceptual confusion into the field, not least because the notion of ‘culture’ is notoriously multivalent, both as a theoretical concept and as an object of analysis. The intensified interest in culture and cultural analysis is also liable to promote analyses that regard culture as an independent analytical domain rather than an integral aspect of social relations and to privilege description and explication as the primary purposes of research, thereby diverting the sociology of punishment away from the more ambitious project of social explanation.1 In this essay, I undertake an analysis of the various ways in which the concept of ‘culture’ is currently deployed in the sociology of punishment, offer a clarification of the theoretical and conceptual issues involved, and argue for the integration of cultural analysis into the explanatory project of a multi-dimensional sociology.

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  Criminology’s Place in the Academic Field

  David W. Garland

  This chapter argues that criminology will tend to become more inward-looking and will lose its vital connection to the more basic disciplines as it grows more autonomous, institutionally and intellectually; as it increasingly trains recruits by immersing them primarily in its own literature; as its practitioners focus more and more on criminology's own research agendas; and as they proceed to publish only in its own journals. The possibility of an ‘independent’ criminology ought to be regarded as a temptation to be resisted rather than a goal to be embraced. Instead of aspiring to an autonomous discipline, those of us who conduct criminological research and scholarship should work for a criminology that is intellectually and institutionally integrated in the wider university. It advocates a vision of criminology that would operate as a multi-disciplinary, policy-oriented subject, addressing problems of crime, criminal justice, security, and punishment in a variety of ways and drawing upon a range of academic disciplines.

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  Modes of Capital Punishment: The Death Penalty in Historical Perspective

  David W. Garland

  This chapter examines the longer-term history of capital punishment and the issue of whether there is a pattern beyond the contingent factors and individual histories underpinning capital punishment. It considers the importance of political considerations in shaping the history of the death penalty and the decisive breaks that have punctuated this history, especially between the early modern and the modern periods. It argues that history exhibits a general pattern from which important conclusions about the nature and development of capital punishment can be derived. It also discusses several trends that are related to the death penalty, including state formation and state power, liberalization, crime control and criminal justice, and rationalization.

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  New Political and Cultural Meanings

  David W. Garland

  A cutting-edge collection exposing the insidious role that race continues to play throughout the U.S. criminal justice system, by today’s leading reformers in the field Blind Goddess brings together the most significant writings of practitioners, professors, and advocates to make sense of what is perhaps the nation’s most astonishing and shameful achievement: the highest per-capita incarceration rate anywhere in the world compounded by the shockingly disproportionate imprisonment of poor people of color. Although there is growing awareness of the huge fiscal cost of mass incarceration, the moral, human, and social devastation of racially skewed law enforcement remains largely unrecognized. Featuring many of today’s premier legal scholars, experts, and writers—among them David Cole, Glenn C. Loury, Bob Herbert, and Lani Guinier—here is a boundary-pushing book that elucidates the impact of race on each stage of the criminal process. From policing and prosecuting to jury selection, sentencing, prison conditions, and reentering society, Blind Goddess is an essential volume for the general reader and an ideal reality check for students of criminal law. With selections from critically acclaimed contemporary works including Michelle Alexander’s The New Jim Crow, Paul Butler’s Let’s Get Free, Amy Bach’s Ordinary Injustice, and Robert Perkinson’s Texas Tough, Blind Goddess provides easy access to a wealth of cutting-edge analyses and concrete solutions.

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  Revising the Horizontal Merger Guidelines: Lessons from the US and the EU

  Richard Gilbert and Daniel L. Rubinfeld

  The US Horizontal Merger Guidelines first promulgated in 1982 by the Antitrust Division of the Department of Justice and the Federal Trade Commission have proven to be very useful throughout the past two and half decades, and through several revisions. The use of merger guidelines in the European Union has been more recent – the origins go back to the issuance of the Guidelines in 1997, with revisions that were under discussion in 2002 when the European Commission published a draft Guidelines notice (the final notice of revision was published in 2004). In both the US and the EU the Guidelines have proven valuable to the parties involved in the merger process (and their experts) and to businesses that are contemplating potential mergers or acquisitions. The modes of analysis and the applications of the Guidelines in both the US and the EU have evolved over time and there has been substantial convergence. As a result, the Guidelines provide useful models for countries that are developing merger control procedures. Recently, the US Department of Justice and Federal Trade Commission have embarked on an effort to revise and update the US Horizontal Merger Guidelines. We believe that this is an auspicious time for suitable revisions to be made in the US and a valuable opportunity for other merger control authorities to evaluate their own merger guidelines. Moreover, we see substantial benefits to be achieved if there is convergence in the merger control processes of all competition authorities worldwide. Our chapter begins with a brief overview of the similarities and differences between the US and EU Guidelines. The fact that there is substantial overlap between the two makes a proposal for US revisions immediately applicable to the EU and elsewhere. In this chapter, we focus on market definition and its relationship to the analysis of competitive effects. Section 11.2 provides a brief overview of important elements of the US and EU guidelines relating to market definition and competitive effects. In Section 11.3, we offer a number of thoughts as to how the market definition component of the US Merger Guidelines might be revised in light of the learning of economists and lawyers in the past two decades. We point out certain limitations in the analysis of market definition and, in light of these limitations, suggest that the US Guidelines and guidelines more generally should emphasize the importance of competitive effects analysis in merger evaluations. In Section 11.4, we move our focus to the analysis of competitive effects for cases in which innovation issues are significant. We suggest that guidelines can be improved if they more accurately reflect our current understanding of the forces that drive innovation.

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  Standard Form Contracts

  Clayton P. Gillette

  The second, expanded edition of the acclaimed Encyclopedia represents a major update of the most authoritative reference work in the field of law and economics and the nine print volumes are now released online as a single integrated product. The Encyclopedia provides balanced and comprehensive coverage of the major domain in law and economics, including: criminal law, regulation, property law, contract law, tort law, labor and employment law, antitrust law, procedural law, and the production of legal rules. Each theme or volume is overseen by a leading scholar and each of the 166 entries is prepared by an expert in the field, providing an in-depth and authoritative overview of the individual topic, combined with an exhaustive bibliography, allowing users to access and filter the entire corpus of literature in law and economics. As with the print edition, the Encyclopedia is unique in serving both as an entry point and a platform for advanced research. The online edition is enhanced with Elgaronline’s powerful search tools, facilitating the search for key terms across the entire Encyclopedia, whilst the browse function allows users to move seamlessly between the volumes. These elements combine to create a powerful research tool for any researcher or scholar in the field of law and economics.

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  The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition

  David Golove

  In a volume dedicated to the history of international law in the Supreme Court, it would be premature to attempt an assessment of the historical significance of the war on terror cases that the Court decided between 2004 and 2008. Yet, if their future impact is necessarily speculative, it is not too early to consider the decisions in a retrospective mode. Do they mark a radical departure from past understandings of the Constitution and of the role of the judiciary, as some have claimed, or are they consonant with the core themes of American constitutional history? In this essay I argue that the decisions are very much in line with American constitutional history, but that they are so in a complex way. It should be candidly acknowledged that the Court did not hold itself bound to follow seemingly settled doctrines or the holdings of its previous war powers cases. Yet, in assessing the fidelity of the war on terror cases to American constitutional history, it would be a mistake to focus narrowly on doctrinal rulings and not to appreciate the profoundly different circumstances in which the earlier constitutional rules were developed. From this vantage point, the war on terror cases are indeed faithful to the spirit of the constitutional framework for war that has persisted throughout our constitutional history—what I call, with perhaps not a little aspirational content, our “Just War constitutional tradition.” What connects the war on terror cases to the constitutional past is the Court’s insistence that war is governed by law and that the governing law—the laws of war—must reflect a reasonable balance of fundamental values adapted to the ever-changing exigencies of armed conflict. The Constitution has demanded, and continues to demand, fidelity to a standard of civilized warfare.

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  The Goldstone Illusion

  Moshe Halbertal

  In 2000, I was asked by the Israel Defense Forces to join a group of philosophers, lawyers, and generals for the purpose of drafting the army's ethics code. Since then, I have been deeply involved in the analysis of the moral issues that Israel faces in its war on terrorism. I have spent many hours in discussions with soldiers and officers in order to better grasp the dilemmas that they tackle in the field, and in an attempt to help facilitate the internalization of the code of ethics in war. It was no wonder that, when the Goldstone Report on the Gaza war was published, I was keen to read it, with some hope of getting a perspective on Israeli successes or failures in this effort to comprehend war, and to fight it, morally. Unlike many who responded to the report, in praise or in blame, I gave this immensely long document a careful reading. Let us begin with a sense of the moral stakes. Since the early 1990s, the nature of the military conflict facing Israel has been dramatically shifting. What was mainly a clash between states and armies has turned into a clash between a state and paramilitary terror organizations, Hamas in the south and Hezbollah in the north. This new form of struggle is now called “asymmetrical war.” It is defined by an attempt on the part of those groups to erase two basic features of war: the front and the uniform. Hamas militants fight without military uniforms, in ordinary and undistinguishing civilian garb, taking shelter among their own civilian population; and they attack Israeli civilians wherever they are, intentionally and indiscriminately. During the Gaza operation, for example, some Hamas militants embedded in the civilian population did not carry weapons while moving from one position to another. Arms and ammunition had been pre-positioned for them and stored in different houses. In addressing this vexing issue, the Goldstone Report uses a rather strange formulation: “While reports reviewed by the Mission credibly indicate that members of the Palestinian armed groups were not always dressed in a way that distinguished them from the civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from the attack.” The reader of such a sentence might well wonder what its author means. Did Hamas militants not wear their uniforms because they were inconveniently at the laundry? What other reasons for wearing civilian clothes could they have had, if not for deliberately sheltering themselves among the civilians? As for the new “front” in asymmetrical warfare, we read in another passage, which is typical of the report's overall biased tone, that, “[o]n the basis of the information it gathered, the Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrikes by the Israeli armed forces.” What reason could there possibly be for launching rockets from urban centers, if not shielding those rockets from counterattack? And what is the moral distinction that is purportedly being established here? By disguising themselves as civilians and by attacking civilians with no uniforms and with no front, these paramilitary terrorist organizations attempt nothing less than to erase the distinction between combatants and noncombatants on both sides of the struggle. Suicide bombers exploded themselves on buses and in restaurants in Tel Aviv, Jerusalem, Haifa, Dimona, Eilat, and many other places. Qassam rockets and Katyushas were fired randomly at various Israeli civilian centers, as far as their range allowed. So the war had no defined place and was waged by unidentified murderers. It justifiably felt like a change in the very nature of warfare. The goal of this momentous transformation was to create a war of all against all and everywhere. It aimed at shifting the Israeli population from a healthy sense of cautious fear attached to a particular place—a border, a security zone—to a generalized panic that has no location. Everywhere and everyone is now regarded as dangerous. This is not paranoia. It has a basis in a new reality, and is the outcome of a new strategic paradigm. Faced with this unprecedented and deeply perplexing situation, two extreme positions have emerged in Israel. The radical left claims that, since such a struggle necessarily involves the killing of innocent civilians, there is no justifiable way of fighting it. Soldiers ought to refuse to engage in such a war, and the government has only one option, which is to end the occupation. This view is wrong, since Israel has the right and the obligation to protect its citizens, and without providing real security, it will fail also to achieve peace and to put an end to the occupation. The radical right claims that, since Hamas and Hezbollah initiated the targeting of Israeli civilians, and since they take refuge among their own civilians, the responsibility for harming Palestinian civilians during Israel's attempt to defend itself falls upon the Palestinians exclusively. This approach is also wrong. The killing of our civilians does not justify the killing of their civilians. Civilians do not lose their right to life when they are used as shields by Hamas and Hezbollah. In fighting the militants, Israel must do as much as it possibly can do to avoid and minimize harm to civilian life and property.

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  State Common Law and the Dual Enforcement of Constitutional Norms

  Helen Hershkoff

  This chapter addresses differences in how the U.S. Constitution and many individual state constitutions approach the state action requirement in enforcing constitutional rights. In contrast to the U.S. Constitution, which generally requires state action as a predicate to the adjudication of constitutional rights, many state constitutions do not require the same predicate for the evolution of constitutional norms. The chapter describes the practices by which state courts have extended constitutional protections to private conduct. It grounds this generally in a framework drawn from comparative constitutionalism, and elaborates on its implications for federalism, state courts, and state constitutionalism more generally. The way state courts have developed a convergence between private and public concepts in constitutional law has important implications for the distinct path of state constitutional rights adjudication in the United States, and this chapter provides a descriptive and conceptual grounding for the phenomenon.

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  Comment: China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights

  Robert L. Howse

  The fundamental premise of Saggi’s and Trachtman’s analysis of this dispute is that the WTO TRIPs agreement should be viewed as an ‘incomplete contract’. Should multilateral treaties be analogized to incomplete contracts? What are implications of doing so for the proper approach to treaty interpretation? We have to begin with the theory of incomplete contracts, which is not really explained in Saggi’s and Trachtman’s report. As developed by Hart and Moore (1988), the notion of ‘incomplete contracts ’ represents the intuition that, while a large number of possible future states of the world may affect the value and cost of performance of a contract, the transaction costs of the parties bargaining ex ante about the legal consequences of all of these possible eventualities are prohibitive. Therefore, taking account of transaction costs, we will expect ‘incomplete contracts’ to be efficient; these contracts generally will either provide various mechanisms for renegotiation triggered by the occurrence of certain future events or allow for the application by an adjudicator or arbitrator of default or background rules to ‘complete’ the contractual bargaining in the face of such eventualities. Equally important to contract theory is the problem of moral hazard: a party to a contract may have incentives to engage in behavior ex post the bargain that increases the riskiness of the contract to the other party. A classic example is insurance contracts. Effective ex ante mechanisms for controlling moral hazard often entail effective means of monitoring the behavior of contracting parties ex post. Although the concept of ‘incomplete contract’ and that of moral hazard have in common that both are concerned with the transaction costs of addressing future events that can affect the cost and value of contractual performance, moral hazard deals specifically with what might be called a form of opportunistic behavior by one of the parties. Unfortunately, these concepts are often (implicitly) blurred in the analysis of Saggi and Trachtman, as I shall go on to explain. I agree with those trade economists and lawyer economists who find both these concepts useful for understanding specific features of bargaining in the GATT/WTO and specific features of the covered Agreements. For example, ‘incomplete contract’ is a powerful concept for understanding those provisions of the GATT that provide a structure for renegotiation of a Member’s tariff concessions (GATT Article XXVIII) and of the GATS that address renegotiation of a Member’s specific commitments (GATS Article XXI). Contract theory makes sense of these provisions, which could actually allow for renegotiation upwards of particular trade barriers (with compensation), whereas a constitutionalist view of the WTO as a regime progressively moving towards complete removal of all such barriers could not easily do so. Along similar lines, the notion of moral hazard is powerful in understanding the concept of nonviolation nullification and impairment. This entails that a Member that has acted in such a way as to undermine the expected benefit to another Member of a specific negotiated concession provide compensation to the latter. But it does not follow that because these ideas of contract theory (which are really an application of broader conceptions of information and transactions costs, useful in bargaining contexts far removed from contractual bargaining between private parties, such as political bargaining) necessarily explain or illuminate all kinds of WTO obligations, and, much less, that because these insights are, as a matter of intellectual history, closely connected to the emergence of contract theory in law and economics, the canons of treaty construction should be replaced by canons of contract interpretation. What conceptual tools are appropriate with respect to particular provisions, and how the resulting understanding of ‘object and purpose’ relates to the other relevant canons in Vienna Convention 31 and 32 are separate, if obviously interconnected, questions.

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  Multi-Sourced Equivalent Norms: Concluding Thoughts

  Robert L. Howse

  This volume begins with the Bible – with ‘righteousness’ – and yet its guiding premise or idea is that one can meaningfully speak of norms and their application in a neutral language, abstracting from any specific moral or political commitment. This is of course the perspective of modern (but not postmodern) social science: norms and their operation can be studied as social ‘facts’ – with scholarly or scientific distance. At the same time, the world of international law in which I work and live is full of passion and struggle and conflict. International law is about punishing genocidal leaders and intervening in failed states; about who gets access to AIDS drugs and on what terms; about saving sea turtles and whales; about financial, and economic and environmental and other crises and catastrophes and who pays for the clean up. It is thus fitting that the final chapter in the volume by Claire Charters returns us to the question of ‘righteousness’, albeit framed in the modern idiom of ‘legitimacy’. As Charters suggests, the weight or guiding power of a norm cannot be determined by its formal or general properties but depends ultimately on the rightfulness of the end that it serves and of the processes and people that created it. What does it mean to speak of norms as ‘equivalent?’ As Broude and Shany indicate, equivalence does not mean sameness or even equality. But it implies some common standard against which the element of difference and thus the nature of the choice between the norms can be assessed. Consider their first example: ‘The same behavior – assault, or willful killing – is often prohibited under criminal statutes and at the same time gives rise to liability under tort.’ The common standard here is the wrongfulness of assault and willful killing. The basis for equivalence is a fundamental moral agreement. So when we turn to the world of international law what does it mean to observe that different norms, developed in different ‘sub-systems’ or through different processes (custom versus multilateral treaties for example), are ‘pointed in the same direction’? One would have to presume a ‘direction’ – and therefore – a telos for international law that transcends the various divides that are connoted by the expression ‘fragmentation.’ As Michaels and Pauwelyn point out in their contribution, seeing international law as (ideally) a single system represents or supposes a fundamental normative choice. Drawing extensively on conflict of laws principles in domestic legal systems, Michaels and Pauwelyn raise the possibility that one can ‘solve’ the question of multiple norms in a truly decentralized fashion through technical rules that apply within the various regimes and through which each deals with the others. We are thus invited to imagine that international law is nothing but a universe of specific regimes that are technically coordinated. Here the sharpest contrast (at least in this volume) is with Charters, who argues that the claims of indigenous peoples have a basis in justice that is cognizable by and affects the international legal system as a whole: conceptions of rights, property, sovereignty and self-determination that cut across many ‘sub-systems’ and regimes of international law are affected by the recognition of the justice of these claims. Teitel and I are closer to Charters’ view: drawing on an argument made in extenso in her forthcoming book Humanity’s Law, we posit that humanity and its protection is the ‘concept of justice underpinning international legality [even though] this norm does not have a fixed meaning that guarantees stability or unity in interpretation across contexts.’ If one begins from such a common ground, and thus the possibility of normative communication between diverse actors in international law even if they differ on specific meanings, then the extent and nature of that communication will be articulated through a hermeneutics that has important sociological and political aspects. The sociological aspect is captured to some extent by Moshe Hirsch’s contribution to the volume. The international law of investor protection and that of human rights have, as it were, a common ancestry in the law of diplomatic protection of aliens. In evolving each in its own direction from that common ancestry, both investment law and human rights law break with the Westphalian model: both empower non-state actors to state their claims directly on the basis of international law. And yet as Hirsh notes, arbitrators in investor-state disputes have been very resistant to considering international human rights law in their decisions. The arbitrators, as he indicates, are mostly drawn from the world of international commercial law, and see themselves as agents of the ‘depoliticization’ of international economic relations. By contrast, those who invoke the language of international human rights in these disputes seek to ‘repoliticize’ economic globalization, anchoring it to the fundamental moral and political commitments upon which international human rights law is arguably grounded. But Hirsh rightly points out that the sociological differences are unstable and things can change.

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  Global Judicial Activism, Fragmentation, and the Limits of Constitutionalism in International Law

  Robert L. Howse and Ruti Teitel

  This chapter explores the contours of a judicial philosophy that depends entirely on a municipal law concept to establish something as fundamental as State responsibility for an internationally wrongful act. It considers three separate opinions: pil platforms, armed activities in the Congo, and the Kosovo Declaration of Independence. The analysis suggests that the core of what we call Simma's judicial activism is in fact substantive and functional, and hermeneutically oriented, not constitutionalist and institutional. Once we consider what may be the deepest sources or foundations of Simma's judicial activism in a post-Westphalian, human-rights based vision of international order, the ICJ, as a State-driven court, may be in some ways unsuited as an institution to Simma's activism. In this sense, perhaps these separate opinions are as much ultimately an appeal for the evolution of international judicial machinery as an expression of disagreement with colleagues on the Bench.

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  Mergers and Acquisitions

  Peter W. Huber, Michael K. Kellogg, John Thorne, and Rachel E. Barkow

  This definitive legal guide to the new world of telecommunications provides you with the thorough, authoritative analysis you need to understand and comply with the complex regulatory landscape in the industry. You'll find timely review of key legislation, FCC rules, regulations and orders, and court decisions with extensive citations and cross-references for such essential topics as: The economics of interconnection and detailed discussions of pricing methodologies of offering services for resale Interconnection rules for wireline networks, including the specific rules imposed on incumbent LECs Antitrust litigation in the wake of the 1996 Act, with comprehensive analysis of the cases brought against incumbent local telephone companies Significant changes to universal services requirements Regulations and policies involving horizontal and vertical mergers and acquisitions The FCC's rule-making and other powers Rights and duties arising from the laws of privacy, intellectual property and free speech And much more. Federal Telecommunications Law, Second Edition, provides all the laws, rules—including those for price regulation, common carriage, universal service, regulations and court decisions are analyzed in detail—to provide you with a thorough understanding of the environment you must work within. Trends in competition, industry structures and technology are explored - offering you a total picture of the telecommunications industry, in areas such as telecommunications equipment; long distance services; wireless services; the internet and data services; information services; video services; and more.

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  Federalism

  Robert P. Inman and Daniel L. Rubinfeld

  Federalism is today a topic of intense intellectual debate in many countries throughout the world. In Europe, the former Soviet Union, South Africa and elsewhere, the view that good government will involve a blending of local and central governmental decision-making is now well accepted. With a topic such as federalism that has been so widely debated from so many perspectives, it would be impossible to provide a comprehensive review of the literature. Rather, we provide a particular perspective, one that balances the twin goals of political participation and economic welfare. A carefully specified theory of federalism has many useful applications: to government expenditure policy (Martinez-Vasquez 1994), to tax policy (Inman and Rubinfeld 1996), to deficit policies (Inman 1990), or to regulatory policy (Rose-Ackerman and Mashaw 1984). Confederation of small governments have been praised by many—from Plato and Aristotle, through Rousseau, Montesquieu, Smith, and Mills, to contemporary federalist legal and economic scholars—as that political institution most likely to encourage a trio of social virtues: political participation, protection of the sovereign rights of citizens, and economic efficiency. Other scholars have been more skeptical. The Federalist Papers (particularly No. 47), the intellectual blueprint for the US Constitution, raises serious doubts about the virtues of loose confederations of small governments. Leading contemporary social scientists from political science (Robert Dahl and William Riker) and economics (Joseph Schumpeter and Paul Samuelson) have lent theoretical support to the Federalists’ concerns. Like the Federalists, these scholars have argued that a strong, democratically elected central government is generally the more effective means to ensure political participation, protection of the rights of citizens, and more efficient and equitable resource allocations. Which level of government is best suited to make public policies, given that we want those policies to be democratically decided, respectful of personal rights, and economically efficient? A considered answer—whether for Europe’s new Economic Union, the new South African Constitution, or to the regulation of anticompetitive firm behavior with the United States or the Economic Union—requires a careful balancing of the benefits and costs of decentralized and centralized political structures. To fashion such a balance, it is essential that we first review the potential virtues of each federalist structure. We begin by defining what is meant by decentralized and centralized federalist structures. In this chapter, governments will be defined as “decentralized and state” or “centralized and national” according to the combination of two constitutional decisions. The first decision—called the partition decision—divides the single national citizenry into states. Following the partition decision, there will be a group of separate state governments and one central government to which each state will send (for simplicity) one representative to a central legislature, the single policy-making body of the central government. Policy decisions made by state governments will be decided by their separate legislatures. Courts and legislatures are concerned with the second constitutional decision—the assignment decision—which allocates final political responsibility for choices over a social or economic policy to either the legislature of the central government or to the legislatures of each of the separate states. If the assignment decision allocates ultimate responsibility for a social or economic policy to the states (or their localities), then we describe policy-making for class of government decisions as “state” or “decentralized.” In contrast, if the assignment decision gives final responsibility for a social or economic policy to the central government, then we describe policy-making for these assigned responsibilities as “national” or “centralized.” Together, these two constitutional decisions define the essential federalist—decentralized or centralized—structure of government. We realize, of course, that federalist structures may have decentralized and centralized components, as, for example, when the central government mandates the form and function of certain decentralized government activities. The much-debated virtues of these decentralized or centralized governmental structures include democratic political participation and enhanced economic efficiency. Which federalist structure or combination of structures favors which virtues given the realities of the political and economic marketplace? We review the arguments and the contemporary evidence in Section A (participation) and B (economic efficiency) below. Not surprisingly, neither a centralized nor a decentralized structure maximizes public participation and economic efficiency all the time. Which structure is preferred turns on a balancing of these values. In Section C we discuss briefly how a society might set that balance.

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  Judging Democracy’s Boundaries

  Samuel Issacharoff

  The modern American experience with judicial oversight of the political process approaches the half-century mark. In that time, the discomfort with judges supplanting the decisions made through the political process has waned. Except in extraordinary times, such as the election of 2000 or when the Supreme Court assumed active vigilance over racial representation in the 1990s or in the current controversies over corporate expenditures on political campaigns, the idea that courts have a role in superintending the functioning of the electoral process no longer triggers grave constitutional concern. It may be that the American legal system has shed its concerns over the countermajoritarian dilemma, to invoke Alexander Bickel’s timeless formulation. More likely, however, is that there is now a sense of the familiar about the idea of judicially enforceable rights in the political process, the concept that took hold starting with the reapportionment cases of the 1960s (see Baker v. Carr 1962; Reynolds v. Sims 1964). Just as likely, this comfortable sense of familiarity is the result of the ability of the Supreme Court to package questions about the integrity of the democratic process within the safe confines of individual rights. Thus, when Justice Brennan, in Baker v. Carr (1962) proclaimed malapportionment justiciable, he did so within the “familiar” confines of equal protection law, rather than the more searching inquiry offered by the Republican Guarantee Clause. Grounding judicial intervention in the protection of the rights-based claims of classes of deprived voters landed the new political cases within the safe harbor of Carolene Products and the justification for judicial solicitude for the discrete and insular outcasts from the broader polity. Even John Hart Ely’s pioneering work on the distinct need for process protections, Democracy and Distrust, joined the debate in defense of the Warren Court as a byproduct of the perceived need to justify judicial review. In this chapter, I want to take a different look at the American experience. It may well be that the particular form in which American courts were able to engage the political thicket required reasserting the rights jurisprudence that swept the world after World War II. However, focusing on the form in which courts framed their doctrines may not well capture the role that such intervention played. As I have argued for many years now, it is hard to look across the sweep of American constitutional law governing the political process—from minority electoral prospects, to campaign finance, to gerrymandering, and so forth – and not be impressed by the transformative role that law has played in shaping American politics. For purposes of this chapter, I want to suggest, without further elaborating, that much of our contemporary dialogue about rights versus structures and process versus substance is an artifact of the path-dependent byways that brought us to a robust body of law governing the political process. Our constitution is conspicuously silent on the contours of democracy, and many of our subsequent doctrinal developments are the consequence of a perceived need for judicial backfilling. While these are important ongoing sources of debate and elaboration, they are by this point more familiar, and I want perhaps to illuminate these issues by looking away from the American experience. The focus of this chapter will instead be the central role assigned in recently formed democracies to constitutional courts and to the fact that these courts appear to be a required element for the creation of these new democracies. Invariably, these courts are established with the primary purpose of ensuring the constitutional pedigree of the actions of the new political orders, a charge that leaves them unencumbered by the American fixation with the source of the authority for judicial review and the accompanying hand-wringing over countermajoritarianism. If we were to look at the role of these courts as a common enterprise—leaving aside the structural and political differences within the varying new democracies—the question could become one of defining the role that these courts are expected to play under the broad rubric of constitutional democracy. Specifically, the inquiry is twofold: First, how should we understand the role of these courts? And second, how do these courts discharge that role?

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  On Political Corruption

  Samuel Issacharoff

  Lurking beneath the surface of all debates on campaign finance is a visceral revulsion over future leaders of state groveling for money. The process of fund-raising is demeaning to any claim of a higher calling in public service and compromises candidates, policies, donors, and anyone in proximity to the bleakest side of the electoral process. The intuition is that, at some level, money must be corrupting of the political process, and that something must be done to limit the role of money. The same logic dictates that less money is better than more money, and that successful reform must bring down the cost of modern electoral campaigning. It is the logic of constricting the effects of money that has defined the modern era of campaign finance reform, an era that began after the Watergate scandals and is now completing its fourth decade. Time and again, the impetus behind the reform effort has been to depress the amount of money spent in campaigns and thereby limit the associated moral stain. So long as a stench attaches to money and by extension those who seek to direct political outcomes with money, the cause of campaign reform takes the high road. If money is the root of all evil, the logic runs inescapably to reducing the amount of money in the system. With these efforts at limitation comes the inevitable result that some speakers will be handicapped in expressing their views, and that the total quantity of speech will be curtailed. For a persistent minority of justices on the U.S. Supreme Court, the claim that money is not speech lends constitutional cover to the search for a way to squeeze money out of politics. In turn, it is this attempt to restrain the amount of money in the system that runs headlong not only into the teeth of the constitutional concern of the majority of the Court, but also into the brute fact of the increased scale and complexity of campaigning for contested office. This restrictive aspect of the reform agenda is ultimately both its strength and its constitutional liability. Constitutionally, it is the efforts to limit the spending of political campaigns—if not directly speech, then certainly “speechy enough”—that have occasioned a long line of losses for reform efforts, with Citizens United but the last in an almost unbroken streak. In its approach to money and politics, Citizens United continues the troubled tradition of Buckley v. Valeo in drawing the divide between political contributions and expenditures. The former gives rise to potential regulation in order to combat a poorly specified corruption of the political process—a concept to which I return below-while the latter is seen as the domain of expressive liberties that the state may not seek to restrict. Academic commentary has long had a field day with the core contributions-versus-expenditures rationale of Buckley. The division between a system that limits contributions but leaves expenditures unchecked runs afoul of the animating logic of the 1974 campaign finance amendments, and is in fact a regulatory structure created by the Court. Even persistent majorities of the Court have rejected the Buckley divide between contributions and expenditures, with only a divide over which way to topple Buckley serving to shore up a frayed body of law. Whether framed as the incoherence of doctrines or simply as a doctrinal approach that proved not workable over time, critics scored easy hits on the Court's attempt to muddle through the difficult issue of money and politics. I want to take Citizens United as a launching point to accept the Court's long-standing invitation to use the contribution side of the divide as a vehicle to shore up the vulnerabilities of democracy. My inquiry begins with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning that advocates could muster. As with the elusive term “diversity” after Buckley's contemporary, Bakke v. Board of Regents, a thin constitutional reed transformed the lexicon of political debate. My argument is that, by altering the corruption concern and moving it away from efforts to depress political expenditures, there may be some measures that both satisfy constitutional scrutiny and address the financial vulnerabilities of democracy. A reorientation toward corruption in the outputs of policymaking suggests effective solutions compatible with the Court's strong constitutional stance in Citizens United.

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  Indicators and Governance by Information in the Law of the Future

  Benedict Kingsbury

  Indicators are becoming ubiquitous in public and private governance. What are the implications of this for the law of the future? While in formal terms it may often be correct that indicators are hortatory and purport to be factual whereas law is binding and expressly normative, the similarities and relations between law and indicators are in reality much greater than a formal differentiation suggests. These similarities and relations will become increasingly important as the overlaps between law and governance become greater. This phenomenon is most marked for law and governance beyond the state, but its significance within states for national and sub-national law is also growing. This paper argues that the law of the future will have to engage much more deeply than heretofore, at the levels of fundamental theory and quotidian practice, with the increasing role of indicators and other quantitative measures, while defining and maintaining a core role for law and legal principles in the whole enterprise of governance by information.

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  From Bilateralism to Publicness in International Law

  Benedict Kingsbury and Megan Donaldson

  This chapter explores the ideas embedded in Simma's notion of a move toward ‘a true public international law’ or ‘a contemporary international legal order which is strongly influenced by ideas of public law’. It argues for two distinct but overlapping meanings of ‘public’ in this context. The first is an international law that is ‘inter-public’ law, being made by and for a set of entities (primarily States) that are not merely ‘actors’ (in the jargon of international relations), but public entities operating under public law. The second is a quality of publicness in law that is also becoming part of understandings of international law of the sort Bruno Simma has enunciated. Neither of these ideas—inter-public law and publicness—are commonplace or widely accepted in international law. However, they represent important dimensions in current and future international law.

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  Introduction: Roman Wars and Roman Laws

  Benedict Kingsbury and Benjamin Straumann

  How can questions concerning imperial expansion be addressed from the perspective of justice? To what extent does law provide a satisfactory way of making assessments of the justice or rectitude of imperial wars, imperial conquests, and governance within a far-flung empire? How does the law concerning relations within and between empires overlap or differ from the law concerning interstate relations? To what extent are specific practices and legal principles of the Roman empire instantiations of arguments about universal moral principles of justice in imperial and interstate relations applicable also to other contexts? In The Wars of the Romans, first published in its complete form by Wilhelm Anton in Hanau-am-Main in 1599, the Italian jurist Alberico Gentili explicitly deals with the military expansion of the Roman empire from the perspectives of law and justice. The publication of De armis Romanis followed the publication in 1598, by the same publisher, of Gentili’s most widely known and influential work, The Law of War (De iure belli libri tres). De armis Romanis appeared as a single volume, comprising two books. The first book, under the title “Indictment of the Injustice of the Romans in Warfare,” constitutes an attack on Roman imperialism in thirteen chapters, accusing the Romans of unjust warfare and culminating in a chapter on “The Tyranny of the Romans.” The second book, titled “Defense of the Justice of the Romans in Warfare,” aims at rebutting chapter by chapter the accusations of injustice made in the first book, concluding with a eulogy of Roman imperialism in the final chapter, “The Good Fortune of the Roman Empire.” The prosecution of Roman imperialism in the first book is entrusted to “Picenus,” while the defense has as its voice that of “a Roman,” a Roman, however, familiar with many of Gentili’s contemporary authors and thus clearly not of the classical era. “Picenus” means someone hailing from ancient Picenum, the modern Marche d’Ancona in Italy, which is Alberico Gentili’s native region; moreover, the Picenus in question is clearly identified as being from San Ginesio, Gentili’s place of birth, and as a civil lawyer by education. This poses a puzzle for the reader—the critic of Roman imperialism is given the trappings and vestments of Alberico Gentili, yet Gentili himself as author of the two books seems rather more sympathetic to the point of view expressed in Book 2 by the Roman. This may be simply a literary device to maintain the tension of the debate. A further explanation, suggested by David Lupher, is connected to the history of the development of The Wars of the Romans. The work had developed out of a pair of speeches originally devised as public speeches (actiones) to be delivered at ceremonial occasions at the faculty of law at the University of Oxford. The first version of the first speech had originally been published by the printer of Oxford University, Joseph Barnes, under the title De iniustitia bellica Romanorum actio, accompanied by a dedicatory epistle to the Earl of Essex, Robert Devereux (reprinted, with English translation, as an Appendix to the present volume). The dedication mentions that Gentili had “ready a defense of the Romans and a disputation directly opposed to this one on their justice in making wars,” but the second speech was never published in its original form. Lupher suggests that when Gentili revised, and considerably expanded, the speeches for publication as The Wars of the Romans in the late 1590s, calling the prosecutor of Book 1 “Picenus” was an ironic way of acknowledging the printed earlier version of the “indictment,” which had appeared under Gentili’s name. When writing in the voice of the Roman defender of imperialism of Book 2, Gentili dismisses ironically the stance of the prosecutor in Book 1 as that of a narrow-minded provincial from San Ginesio. As the titles of its two books suggest, The Wars of the Romans affirms and indeed presupposes that considerations of justice are relevant to international relations and to proper assessment of the behavior and norms of imperial Rome. In writing the arguments for both sides in the debate about the justice of the Roman empire, Gentili does not attribute to either side the claim that there are no moral norms that govern and constrain the external or internal actions of states. To the contrary, both the indictment of Roman imperialism in Book 1 of The Wars of the Romans and its defense in Book 2 are predicated on the assumption that it is apposite to judge the expansion of the Roman empire by way of warfare according to certain moral normative criteria—indeed, denying or affirming the justice of the Roman empire is precisely what The Wars of the Romans is all about. The accusation against the Roman empire is not framed principally in terms of the prudential considerations that inform much thought in the realist tradition of politics, but instead focuses on criteria of justice; and the defense in Book 2 maintains, not that making claims of justice in the international realm is essentially impossible or undesirable, but that Roman imperialism was just. There are nonetheless strands in Book 2 of arguments that attribute some justificatory force to self-interest and raison d ’état. Gentili’s early interest in Machiavelli’s thought, evident, for example, in his De legationibus (1585), can be traced to these aspects of De armis Romanis.

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  Comment: Contesting the Management of Difference—Transnational Human Rights, Religion and the European Court of Human Rights' Lautsi Decision

  Mattias Kumm

  Difference, as Christine Landfried defines it in her contribution to this volume, denotes deeply rooted structurally embedded social phenomena that differentiate people and practices. More than just diversity, difference is embedded in identities, status categories and in legal and political institutions that people establish and uphold to collectively make decisions. Alec Stone Sweet argues in his illuminating contribution to this volume that “the more any rights-protecting court is effective, the more rights adjudication will undermine the kinds of macro-structures that reify difference identified by Landfried” (this volume, 229). Focusing on the practice of the European Court of Human Rights and its jurisprudence on the stigmatization of homosexuality, he perceptively and persuasively highlights how the proportionality test and the idea of a margin of appreciation work as the central conceptual tools that the court uses to assess the legitimacy of difference in a given context. The story he presents of transnational human rights discourse and the European Court of Human Rights as a transnational human rights institution is a success story: Normatively troubling practices that reify difference tend to be subverted by the contextually sensitive practices of a transnational human rights court that remains sensitive to legitimate pluralism in the practice of national self-government of Member States. I believe the picture painted by Stone Sweet of the European Court of Human Rights is accurate not just in the depiction of proportionality and the idea of a margin of appreciation as the key conceptual tools that the European Court of Human Rights uses to manage difference in its human rights jurisprudence. I also think he is correct to suggest that the European Court of Human Rights' jurisprudence relating to the stigmatization of homosexuality is characteristic for how the European Court of Human Rights is able to undermine the macro-structures that reify difference in some contexts. But in the following I will add wrinkles to that story, wrinkles that do not undercut any of the arguments that Stone Sweet presents, but seek to complement and qualify the story by pointing to the limits and potential adverse effects of transnational human rights practice. Drawing on the European Court of Human Rights' freedom of religion jurisprudence and the Lautsi case in particular I will show how transnational human rights practice doesn't just have the tendency to undermine the macro-structures that reify difference, as Stone Sweet argues. At times it just leaves in place or even reifies difference in terms of rights. This is because even within the structure of human rights discourse that Stone Sweet describes, politically contested competing normative constructions of difference reappear and reproduce the kind of disagreement that characterizes national political debates on these issues. But because it does so using the language of rights on the transnational level, the stakes are rhetorically and institutionally raised. This potentially reifying adverse effect is practically mitigated in most cases by the doctrine of “margin of appreciation” which often takes on a role in these contexts to effectively neutralize and largely make irrelevant the European Court of Human Rights as a supervisory institution. In practice this has meant that the Court tends to leave Member States with something close to a free hand to continue to uphold and maintain structures that reproduce difference, by either favoring Christianity or discriminating against Muslims. It follows that when there is disagreement of this kind, we should not expect the European Court of Human Rights to play much of a constructive role. This is not the place to substantiate that general claim by a close analysis of the totality of the court's freedom of religion case law. Instead, the following will try to get a deeper understanding of the problem of contested normative constructions of difference and its implications for the practice of transnational human rights' adjudication through the prism of a high profile recent case: The Lautsi decision (ECHR 2011).