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  European Legality and Jurisdictional Justification: How the ECJ Should Determine the Legality of Legislation under Art. 114 TFEU

  Mattias Kumm

  One of the blind spots of the reflection on European constitutionalism in the past decades has been the transformation of the idea of legality as it is reflected in the reasoning of the European Court of Justice (ECJ) and many national constitutional courts. Whereas during much of the late nineteenth and twentieth century legal practice and legal scholarship was dominated by a positivist style, focused on sources and tying legal analysis to those sources by reference to established canons of construction, there are central features of current constitutional practice that do not fit that description. Furthermore it would be a mistake to believe that the positivist style has simply been replaced by a well-known alternative. The dominant conception of constitutional legality has relatively little in common either with the freewheeling approaches advocated by, say, the Freirechtsschule or American style Pragmatism. What has replaced it—call it the European conception of legality—is a conception that is characterised by three distinctive features. First, the idea of legality is tied to constitutional requirements that are subject to judicial review. Legality properly so called is judicially enforceable constitutional legality. Second, these constitutional requirements may or may not be embodied in a constitutional text. To a large extent constitutional requirements are derived and applied without reference to a constitutional text that is engaged using the usual canons of legal reasoning. Call this the detextualisation of European constitutional legality. Third, the basic principles of liberal democracy provide the foundations and teleology for a conception of law as institutionalised practical reason. The constitutional requirements are often articulated in the form of highly abstract principles—think of the four freedoms or the classic human rights guarantees. In light of these principles courts assess whether there is a plausible justification for acts undertaken by public authorities. This requires courts to engage in contextualised general practical reasoning. It follows that constitutional legality as it is understood in Europe provides courts with the power to assess whether law´s claim to legitimate authority can be vindicated by way of assessing the plausibility of reasons underlying acts of European public authority. Such a conception of legality incorporates pragmatic or ‘natural law’ elements, but cannot be reduced to that alone. The ubiquity and centrality of the principle of proportionality in European law is perhaps the clearest evidence for a conception of legality that opens itself up to general practical reason. Proportionality becomes the central tool that lawyers use as a formally disciplining, substantively radically indeterminate conceptual framework for the contextualised analysis of complex issues of policy. Whether a particular law makes good on law’s claim to legitimate authority is not a question exclusively to be debated and negotiated in the context of political struggle or acts of individual resistance. Instead that practice of contestation becomes an integral element of litigation and legal critical self-reflection by the core institutions of legal reasoning—the law courts and the law faculties—for example by assessing the proportionality of a particular act of legislation. To some extent political and legal deliberation and contestation occupy the same normative space. There is a qualification, however: Law’s capacity to reflect on itself in terms of practical reason is constrained by a commitment to liberal democracy that, for the purpose of legal argument, has to be understood in a way that is roughly compatible with existing basic institutional arrangements and practices, to be legally plausible. These limitations have their basis in the limited institutional role of legal institutions. Courts and law faculties do not have the clout or legitimacy associated with governments or political parties. Legal institutions do have an epistemic comparative advantage compared to other institutions that in part accounts for their legitimacy, but that advantage does not extend to foundational issues of political philosophy or concerning the requirements of justice. Instead the comparative advantage of legal institutions stems from their critical and constructive focus on the coherence of legal practice, across levels of abstraction, subject matter, areas and time. Courts, when they resolve disputes and scholars, when they reflect on doctrine, reflect upon the justification on decisions in order to help establish coherence between and fine-tune decisions made by others.

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  How Does European Union Law Fit into the World of Public Law? Costa, Kadi and Three Models of Public Law

  Mattias Kumm

  There is deep disagreement about how the law of the European Union (hereinafter: EU Law) fits into the world of public law. Is EU Law an integral part of international law? Or does EU Law establish an independent constitutional system? Is national law an integral part of that European system or does it remain an independent constitutional system? Disagreements about these questions are not just of interest to legal theorists. They give rise to high stakes legal controversy, when EU Law conflicts with either international or national constitutional law and courts are required to determine which of the conflicting laws should be set aside. Furthermore these conflicts provide a useful prism through which to study different claims about the structure of the world of public law. Such a prism helps sharpen the sense for what is at stake, when conceiving of the legal world in one way or another. Conflicts between EU Law and other laws arise in two types of cases. The first type concerns conflicts between the EU Law and the wider international legal order. Such a conflict has been the focus of the European Court of Justice's (ECJ's) recent Kadi decision. The question was whether the implementation by the EU of a UN Security Council Resolution could be made conditional on conformity with European fundamental rights standards, or whether the obligations derived from the UN Charter have primacy over all other international law, including EU Law. The ECJ, overruling a previous decision by the European Court of First Instance (ECFI), held that it was appropriate to subject the EU Regulation implementing Security Council resolution to European fundamental rights standards, effectively precluding the enforcement of a UN Security Council Resolution. That decision has triggered strong reactions, both affirming and critical. ls EU Law hierarchically subordinated to UN Law, as Art. 103 UN Charta might suggest? If not, does that mean that the constitutional law of the EU, whatever that happens to be, determines if and under what conditions UN Law is to be applied by the EU? Is there a third way to resolve this issue that does not involve establishing categorical primacy of one over the other? The second issue concerns potential conflicts between EU Law and member states' law, in particular member states' constitutional law. After the ECJ in Costa v. Enel declared EU Law to have primacy over all national law, including national constitutional law, most national courts have not accepted outright the position of the EC]. Instead many insisted that there are national constitutional red lines, guarded by national constitutional courts, which the EU must not cross in order for it to be implemented nationally. Nearly fifty years after Costa and an immeasurable amount of ink spilled describing and analysing the decisions by the ECJ and national constitutional courts, much remains in flux and the basic questions remain alive: should national courts accept that national constitutional law is subordinated to EU Law, as the ECJ claims? If not, does that mean that national constitutional law as interpreted by national constitutional courts establishes the conditions under which EU Law is enforced nationally? Is there a third way of answering those questions, that does not insist on the primacy of one over the other? If there are lines to draw in the sand and those lines are not simply derived from specific provisions of national constitutions, how should national courts go about drawing them? Both issues raise the question how European Law fits into the world of public law. The purpose of this chapter is not to report on the rich literature addressing each of these issues or, more ambitious, try to resolve them. It is to get a deeper understanding of them, how they are related to one another and why they seem so difficult to resolve. The deep, interminable, and seemingly incommensurable disagreement that exists with regard to these questions, I will argue, is the result of a basic disagreement over how to conceive of the world of public law and the foundations of legitimate public authority. Debates about how the EU is appropriately described as a legal and political subject and how it fits into the legal world are deeply tied up with different conceptions of the world of public law. More specifically there are three competing models of public law underlying these conflicts, generating three very different accounts of how European Law fits into the world of public law. I will distinguish between Democratic Statism, Legalist Monism, and Constitutionalism, with each model of public law playing an important role in the justification of judicial decisions in European legal practice and each connected to a different conception of public authority. In the following I will describe and analyse each of these models as they play out in practice and spell out their implications for the question how European Law fits into the world of public law. Ultimately I will argue that a Constitutionalist model of public law not only best incorporates and operationalizes the competing normative concerns in play. It also provides an account of public law that can reconstruct and justify the mutually engaged, deferential, and principled legal pluralism that is arguably the hallmark feature of contemporary European constitutional practice.

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  Matching Words and Deeds? How Transit-Oriented Are the Bloomberg-Era Rezonings in New York City?

  Simon McDonnell, Josiah Madar, and Vicki L. Been

  New York City’s long-term strategic plan, PlaNYC 2030, envisions a city of over nine million residents by 2030, an increase of about one million over 2000 (City of New York, 2007). Until the 2007 recession hit, the City was well on the way to achieving this with a net increase of 355,000 residents between 2000 and 2008 (US Census Bureau, 2009). To accommodate new residents while simultaneously encouraging economic development opportunities, improving residents’ quality of life and improving the City’s environmental performance, the City has launched an ambitious transportation, land use and planning agenda, much of which is articulated by PlaNYC 2030. A centerpiece of this agenda is focusing development in neighborhoods well served by public transit to reduce dependency on the automobile (Holtzclaw et al., 2002). This, in turn, can reduce automobile-related externalities, such as congestion and air pollution, and help mitigate their negative health, economic and quality of life impacts (Sterner, 2003). Achieving this pattern of development requires not only the availability of transit, but also land use regulations that encourage, or at least permit, relatively dense development near transit stations. Between 2002 and 2009, New York City’s government proposed and enacted 100 significant changes to its zoning code, covering more than 20 per cent of the City’s land area. This unprecedented period of rezoning activity, all under the mayoral administration of Mayor Michael Bloomberg, constitutes the most significant change to the City’s land use regulations since the original version of the current zoning code was adopted in 1961. But while many of these individual rezoning actions have been analyzed by neighborhood groups, advocacy groups and the press, little academic attention has focused on their cumulative impact on the City’s residential development capacity, or on how the rezonings match the City’s stated development, environmental and transportation goals.

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  Made with Men in Mind: The GI Bill and Its Reinforcement of Gendered Work after World War II

  Melissa Murray

  This chapter critically examines the GI Bill of 1944—perhaps the most well-known veterans’ benefits program in American history. The GI Bill of Rights, signed into law by President Franklin D. Roosevelt, afforded enormous employment, educational, and financial benefits to veterans following World War II. Predicated solely on military service, GI Bill benefits were seen as the logical entitlement of those who had served their country during World War II. Feminist scholarship has identified the gendered nature of veterans’ benefits and preferences that privilege military service and, in so doing, disadvantage women, who as a group are less likely to have served in the military. The disparate impact of veterans’ benefits and preferences on women are only part of their gendered legacy. The relationship between work, gender, and military service in the post–World War II era presents a more disturbing picture. Although veterans’ benefits and preferences were facially gender-neutral, they were structured and implemented with particular gender roles firmly in mind, and were pursued with the intent of preserving and further entrenching these gender roles. Specifically the policies were aimed at helping veterans transition from their wartime role as soldiers to their civilian roles as workers. Because the military and the workforce were understood to be male institutions, these policies were socially understood to benefit men, who were expected to be economic providers for their wives and families. As such, veterans’ benefits and preferences not only disadvantaged women—they reflected, reinforced, and further embedded traditional gender norms that positioned men as protectors and providers, and women as their home-bound dependents.

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  Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges

  Burt Neuborne

  The first decade of the twenty-first century opened and closed with two bitterly contested U.S. Supreme Court decisions impacting American democracy. In Bush v. Gore, five members of the Court prevented Florida from completing a recount of the potentially deciding votes in the 2000 presidential election, judicially awarding the election to George Bush. In Citizens United v. Federal Election Commission, a five-vote majority overturned two recent precedents and a century of practice in ruling that for-profit business corporations enjoy a First Amendment right to spend unlimited sums to influence elections. Many have noted the artificially rigid nature of the electoral equality analysis in the Bush v. Gore majority opinion, and the majority's departure from federalism principles in depriving Florida of the final decision about whether to continue the recount. Citizens United is also vulnerable to doctrinal critique. Crucially, Justice Anthony Kennedy's majority opinion never persuasively confronts the threshold issue of whether for-profit business corporations are comparable to individuals for the purposes of First Amendment analysis. While it is tempting to continue to pound on the two cases' doctrinal shortcomings (I will do more pounding on Citizens United, infra), doctrinal criticism, while important, almost never demonstrates definitively that a hard democracy case was wrongly decided. In both Bush v. Gore and Citizens United, plausible readings of constitutional doctrine point in two directions. In Bush v. Gore, seven justices, including Justices David Souter and Stephen Breyer, were persuaded that unconstitutionally unequal criteria were being applied in different Florida counties to measure the validity of contested presidential ballots. Justices Souter and Breyer disagreed only with the five-justice majority's decision to prevent Florida from seeking to correct the equality violation. Even the five-justice decision to end the Florida recount, while deeply problematic as a matter of federalism, was based on a fear that unless the Court acted immediately, expiration of the congressional safe-harbor period designed to insulate state presidential electoral results from congressional challenge might result in disenfranchising the entire state, or worse. While I believe that Florida should have had the final say on whether to take such a risk, and while the Court's refusal to trust Congress to act responsibly in dealing with a contested Electoral College issue bordered on contempt for the democratic process, I concede that treating the issue as one for Supreme Court resolution was defensible in the special context of a presidential election with immense national and international repercussions. Similarly, in Citizens United, First Amendment stalwarts like Floyd Abrams and the American Civil Liberties Union have applauded Justice Kennedy's opinion as a great victory for free speech. Viewed solely from a doctrinal perspective, therefore, while I believe that both cases got the law wrong, I cannot deny that reasonable people might differ as a matter of pure doctrine. There is, however, a second level of critique potentially applicable, not only to both Bush v. Gore and Citizens United, but to the full range of judicial decisions that have shaped the contours of American democracy for the past half-century-the critique of democracy. Under existing constitutional ground rules, American judges, confronted by a hard constitutional case with implications for democracy, are not required—indeed, they may not even be permitted—to ask whether the outcome is good or bad for democracy. Rather, at least since Baker v. Carr—1962 decision holding that federal courts could rule on voting district reapportionment issues they are expected to resolve the case by shoehorning it into one or another doctrinal category, such as equal protection, freedom of association, or free speech, without ever asking what kind of democracy they are building. The result has been the emergence of a dysfunctional, accidental democracy built by judges operating with doctrinal tunnel vision. It is long past time to bring concern over the quality of American democracy back into the judicial equation. The Constitution rests on three non-textual structural ideas—democracy, separation of powers, and federalism. Despite the absence of explicit textual guidance, the Supreme Court has forged effective constitutional doctrine protecting both federalism and the separation of powers. There is no reason why a body of substantive doctrine could not be forged, as well, protecting democracy. I recognize, of course, that “democracy,” like “the freedom of speech,” or “Our Federalism,” or “the separation of powers” is not a self-defining idea. But, like most of the luminous but abstract ideas in the Constitution, American democracy has an understandable core—robust self-government by citizens exercising equal political power—that can guide judges in deciding hard constitutional cases with implications for the working of the democratic process. At a minimum, when constitutional doctrine is narrowly balanced and one outcome clearly impedes robust egalitarian self-government, while the other enhances it, preserving robust democracy should be an important factor in judicial decision-making. When Bush v. Gore and Citizens United are viewed through a democracy-sensitive lens, they emerge as judicially imposed democratic disasters. Cutting off the Florida recount prevented the democratic resolution of a presidential election, resulting in a judicially imposed president. From a democracy standpoint, it does not get any worse. Similarly, unleashing unlimited partisan spending by for-profit corporations on the eve of an election may be good for corporations, but it threatens to increase exponentially the already excessive role played by money in our political process. I do not believe for a minute that a rational Founder would have knowingly designed a democracy where judges pick the president and for-profit corporations dominate political discourse. I hope to explain how we got to a place where judges ignore the quality of the democracy they are building, and to demonstrate that judges, operating solely at the level of doctrine, have accidently developed a profoundly dysfunctional law of democracy. I will argue that it is not too late to undo the damage. We can and should recognize that the judicially enunciated constitutional law of democracy is more than the interplay of unrelated formal constitutional doctrines, however correct the doctrinal analyses may be on their own terms. Rather, deciding democracy cases should be viewed as a free-standing process designed to advance, enhance, and protect the ability of “We the People” to govern ourselves as equal and effective participants in the democratic process.

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  Intellectual Property Norms in Stand-Up Comedy

  Dotan Oliar and Christopher J. Sprigman

  In this chapter, we examine the intellectual property norms of stand-up comics and how these norms help comedians assert ownership of their material and discourage joke stealing. Although joke stealing does not occur with great frequency, it does occur often enough to be a persistent concern. Nonetheless, comedians are not suing rivals who they believe have stolen their material. This is not because comedians are angels who object to litigation on principle. Nor do they view their work product as public property. Comedians work hard to come up with and perfect original comedic material and are not amused—to say the least—to see it stolen. Why are comedians not using the legal system? Copyright law does not provide comedians with a cost-effective way to protect their expression. The cost of federal court litigation is too high, and the expected benefits of copyright lawsuits are too low. Copyright law protects original expression but not ideas, and much alleged joke stealing involves telling the same comedic idea in different words. Copyright plaintiffs further bear the burden of proving that the defendant copied their expression rather than creating it independently. Since jokes and comedic routines often reference common experience or the events of the day, it would not be easy in many cases for comedians to negate the possibility of independent creation (also known among comedians as “parallel thinking”). Rather than formal law, comedians use a system of social norms to assert ownership of jokes and comedic routines, regulate their use and transfer, and impose sanctions on those who do not play by the rules. These sanctions include bad-mouthing, refusals to work together, and threats of (rarely used) physical violence. Documenting this norms system, which we have done by, among other things, interviewing comedians, is this chapter’s first major purpose. Part 1 thus contains a static description of comedians’ norms system as it operates today. This exploration challenges the conventional wisdom in intellectual property law—which has been repeated in the specific context of stand-up comedy—that formal legal protection is necessary for intellectual production to exist. Part 2 addresses the second major aim of our research. It provides a dynamic analysis of comedians’ social norms over time. In the vaudeville and the post-vaudeville eras, literal appropriation was the industry norm, and humor tended to stick to well-worn genres (mother-in-law jokes, ethnic humor, etc.). With the rise of antiappropriation norms in the 1950s and 1960s, humor has changed and become more personal, observational, and point-of-view driven. Our dynamic analysis leads us to two arguments. First, while conventional IP wisdom sees protection as mainly affecting how much creative work is produced, we suggest that it also affects the kind of content produced. In comedians’ case, the emergence of social norms did not bring about a greater supply of “rim-shot” jokes but rather a new kind of comedy. Second, we provide insight into why comedians’ proprietary norms emerged over the past half century. We trace and evolution in the culture and economics of stand-up comics, away from a regime that treated jokes as a commons and toward informal property rules that limit appropriation. We suggest that these are interrelated.

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  Elections as a Distinct Sphere under the First Amendment

  Richard H. Pildes

  The strongest legal argument, in my view, for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, is the view that elections should be considered a distinct sphere of political activity. Elections are distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposed can, arguably, be undermined or corrupted by actions such as the willingness of candidates or officeholders to tread their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere – including how elections are financed – might be constitutionally permissible that would not otherwise be permissible outside the sphere of elections. This is the form of argument that must be accepted to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. To begin to reveal the structure of this argument and to justify it, I want to start with a recent U.S. Supreme Court decision. A few years back, in Arkansas Educational Television v. Forbes, the Court held that at least one phase of the electoral process, a candidate debate, is special for First Amendment purposes. At issue was the decision of a state-owned television station to exclude from the congressional candidate debate it was sponsoring an independent candidate who had qualified for the ballot; the station included only the Democratic and Republican candidates. In essence, the case required the Court to decide whether state journalism was best characterized as the state or as private journalism. In the Court’s view, the journalism categorization was more apt. As a consequence of this characterization decision, the constraints of content and viewpoint neutrality that might otherwise bind agencies of the state were held not to apply to a public television station. Yet the Court went on to add an intriguing qualification. According to Forbes, candidate debates play a special role in democratic politics. Therefore, the Court decided, state-sponsored debates are subject to the requirement of viewpoint neutrality, even though the Court recognized that other public television programming, including political programming, could be as viewpoint-skewed as the stations management desired. The Court held that the First Amendment applied in one way to general activities of the state, another way to activities of state-owned media, and yet another way when state-owned media sponsored candidate debates as part of the electoral process. My goal here is to explore the implications of the Court’s holding that the First Amendment requires unique treatment of candidate debates because such debates play a special role in democratic politics. More broadly, I want to explore a possible extension of this principle: Is it possible that other aspects of electoral politics could also be the subject of special election-specific First Amendment principles because of their role in democracy? Even if the current Court would not accept this extension of Forbes, is it nonetheless a consistent direction along which constitutional oversight of politics might logically proceed?

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  Political Parties and Constitutionalism

  Richard H. Pildes

  Constitutions and judicial review are often thought of, particularly in more recent decades, as devices for ensuring the protection of individual rights and, through equality provisions, the rights of potentially vulnerable minority groups. Within this conception, constitutional law is viewed as a means of restraining potentially oppressive majorities from running roughshod over personal liberties or the interests of minority groups. This rights-equality conception tends to emphasize what might be called ‘negative constitutionalism’: constitutions as shields against majoritarian excesses. But constitutions also serve to constitute political power. In constitutional democracies, constitutions empower democracy: they create the institutional structures, offices of government and framework for decisionmaking that organize the diffuse preferences of a mass society into recognizable, meaningful and legitimate political outcomes. The study of how constitutions create positive political power, and how constitutional law sustains (or fails to sustain) this power, might be called ‘positive constitutionalism’. Though most modern constitutional scholarship focuses on the role of constitutions as checks on political power, the role of constitutions as creators of political power is at least as important, both historically, in terms of why constitutions were created originally, and in terms of the practice of governance today. For example, the American Constitution, the oldest constitution, was created to realize this kind of positive constitutionalism: its central purpose was to create a powerful, effective system for governance at the national level. Only after that Constitution was created was the Bill of Rights, the provisions designed to check the national government, then grafted on. In general, the raison d’être of constitutions is to create power, albeit power that is checked and channeled appropriately. That means creating the institutions, structures, organizations and legal framework that enable democratic government (at least in constitutional democracies). And in any modern state, one of the most essential elements in democratic self-government is the political party. Although the romantic vision of the individual citizen as the vehicle of democratic self-governance still has powerful emotional and symbolic resonance, the reality is that in any large state, the most enduring and powerful vehicle for organizing citizens into effective participants in politics is the political party. Parties are central to defining political agendas, organizing coalitions of voters, amplifying the voices of diffuse groups and keeping officeholders accountable. In recognition of this fact, Germany’s Federal Constitutional Court (Bundesverfassungsgericht), has described the post-World War II German Constitution as having created a ‘party state’; the meaning of this idea is that democracy is only secured and made meaningful to the extent that free and vibrant political parties are permitted to compete for political power. But political parties in control of the powers of government can also use that power to seek to entrench themselves and reduce competitive pressures from other parties. Thus, constitutional regimes must both protect the role of political parties in democratic processes and protect democracy from partisan attempts to manipulate the rules of political engagement. This chapter explores how constitutional texts and court decisions have engaged the now well-recognized centrality of political parties to making democratic self-government meaningful.

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  Voting Rights: The Next Generation

  Richard H. Pildes

  Today’s Voting Rights Act (VRA) (1965), particularly its historically important Section 5, exists in a form and structure little different from the original Act of nearly forty-five years ago. The VRA of 1965 was a justifiably aggressive federal response to the race-based disenfranchisement of African Americans in readily identifiable geographic areas. Although it represented an unprecedented assertion of federal power over states and localities, the Act was in fact carefully and appropriately tailored to the historical context in which it originated. By focusing primarily on race-based denials of voting rights and by targeting its most stringent provisions to those areas with a history of race-based disenfranchisement, the VRA effectively tackled the predominant voting-rights issue of the prior century of American experience: the persistent efforts of mostly Southern jurisdictions to deny minority citizens the right to vote. As a response to the specific historical conditions that existed in 1965, the VRA was perhaps the most effective civil rights statute enacted in the United States. It represented the last significant step toward universal inclusion of adult citizens in American democracy, and it effectively prevented recalcitrant state and local governments from crafting new laws designed to suppress minority voting. As a policy-making attempt to address contemporary voting-rights problems, however, the VRA—particularly Section 5—might no longer offer the most effective means of securing access to the ballot box. The issues emerging today—voting technology problems, felon disenfranchisement laws that apply even to those who have completed their sentences, burdensome and unnecessary voter registration requirements—are not confined to jurisdictions with a long history of racially discriminatory voting practices, nor do they necessarily arise from the efforts of state and local governments to target minority voting per se. For this reason, the very statutory structure that rendered the VRA so effective in the initial decades of its existence—its narrow geographic targeting and its focus on changes in voting rules and practices—now constrains its ability to protect the right to vote As we look to the future of voting rights, one of the choices Congress and voting-reform advocates will face is how to conceive the general form that new voting-rights protections ought to take. In particular, Congress will have to decide if it wishes to continue to adhere to the historically contingent antidiscrimination model of Section 5 of the VRA or is ready to embrace new legislative models that, I want to suggest, better fit the voting rights problems of today. So far, Congress has proven reluctant to look beyond the existing structure of the VRA, in particular Section 5 of the Act—the “preclearance” provision that requires certain jurisdictions, mostly in the South, to submit proposed changes in voting rules and practices for federal preclearance approval before those changes can be implemented. Given the symbolic significance of the VRA and the fact that racially discriminatory voting practices have not disappeared completely, any proposal to move away from the Section 5 model understandably produces anxiety. Indeed, the last time Congress revisited Section 5, in 2006, Congress reauthorized it without fully addressing whether Section 5 needed to be updated in any profound way to reflect the changes in voting behavior that had taken place since 1965, or even since 1982, when Congress had last addressed Section 5 (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act 2006). Since 2006, however, the Supreme Court has weighed into the debate in ways that may force Congress’ hand. First, the Court’s 2009 decision in Northwest Austin Municipal Utility District Number One v. Holder (2009) (NAMUDNO) has been widely interpreted as a strong warning to Congress that if Section 5 is not revised to address the Court’s concerns, it could be held unconstitutional in a future decision. Even if the Court upholds the constitutionality of Section 5 or avoids confronting that issue, the Court in NAMUNDO expressed the kind of skepticism about the justification for Section 5 that might well lead to narrow judicial interpretations of Section 5 going forward. These constitutional issues are prompted by unresolved debates about how different the jurisdictions covered by Section 5’s preclearance provisions are from those areas not covered; the Court has raised questions about whether the current pattern of coverage can be justified under the relevant constitutional standard. Second, the Court’s decision a week after NAMUNDO in Ricci v. DeStefano (2009), which appears to impose a higher standard for demonstrating racial discrimination based on disparate impact than previously required—a decision directed specifically at discrimination claims filed under Title VII of the Civil Rights Act of 1964—may nonetheless have a significant impact on the VRA. Like Title VII, the VRA protects against voting practices that disparately impact the voting rights of racial minorities. If the disparate impact analysis of Ricci takes hold or is expanded, it could thus make it more difficult to establish race-based violations under the VRA, further undermining the Act’s practical effect and potentially leading to additional constitutional concerns, particularly if in a later ruling, the Court goes so far as to find disparate-impact doctrines to conflict with the Equal Protection Clause (a question to which Ricci begins to open the door). As Congress reacts to these recent Supreme Court decisions—or, perhaps more likely, to future Supreme Court decisions that might more directly force Congress to address voting issues—it has two legislative models to work from. First, it could tinker at the margins of Section 5, narrowing the Section’s geographic scope to target only those jurisdictions with sufficiently egregious race-based voting rights problems to justify continued preclearance oversight. This approach would preserve the basic civil rights model of the VRA and address the constitutional concerns expressed in NAMUDNO, but it would further limit the Act’s practical effect and do little to address emerging voting rights problems. Alternatively, Congress could draw on two more recent voting-rights statutes enacted to address contemporary voting-rights concerns: the Help American Vote Act (HAVA) (2002) and the National Voter Registration Act (NVRA) (1993). Both HAVA and NVRA are generally applicable national laws that protect the right to vote as such of all citizens nationwide. Because the HAVA model relies on the fundamental constitutional right to vote—a right that was not fully recognized by the Supreme Court at the time the VRA was enacted—rather than on the equal protection concerns of the Fourteenth and Fifteenth Amendments, legislation of this type need not be limited to race-based voting-rights problems, nor tied to jurisdictions with entrenched racially discriminatory voting practices. This model also avoids the constitutional concerns raised by NAMUDNO and Ricci, even as it expands Congress’s ability to protect the right to vote. In this chapter, I will first explain why the VRA model, so effective in the early decades of its existence, may no longer offer an appropriate paradigm for protecting voting rights going forward. Then I will suggest that Congress would be wise, in the wake of the Supreme Court’s recent decisions, to think expansively, beyond the existing structure of the VRA, if it wishes to play a proactive role in protecting voting rights moving forward. If Congress is willing to step up and address the hard questions that the Supreme Court debate over the constitutionality of the VRA now prompts, Congress could ultimately do more to enhance the future of voting rights than by working at the margins of Section 5. In theory, of course, Congress could do both: It could update Section 5, as well as other parts of the VRA, while also enacting additional laws that would provide further protection for the right to vote on a universal, nationwide basis. But as a practical matter, legislative agendas confront various constraints, including ones of focus, energy, resources, and time; realistically, these constraints might mean that Congress will focus on only one type of approach in any future legislative efforts. Furthermore, there are constraints on frameworks of thought as well: An intellectual bias in favor of the status quo might lead Congress and advocates not to think outside the framework of existing approaches enough to pursue the changes that would actually be most meaningful and effective. Thus, my aim is to press the case for thinking about future voting-rights legislation through a model best attuned, I believe, to the voting problems that are central today and most likely to remain so in the immediate years ahead.

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  Love, Manhood, and Democracy

  David A. J. Richards

  Carol Gilligan and I met some eight years ago, in 2002, when we began with Jerome Bruner, to co-teach a seminar on gender issues in democratic societies at the New York University School of Law. Since that time, Gilligan and I have co-taught the seminar successfully in various one- and two-semester formats every academic year. We probably will continue, as I tell Gilligan, until death do us part. Our teaching collaboration drew its power and appeal for each of us from our discovery of a remarkably fruitful intersection of our research and writing interests. When we began to teach together, I had just finished and published my long study of various American resistance movements in Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (1998), and Gilligan was beginning work on The Birth of Pleasure: A New Map of Love (2002). Neither Gilligan nor I had previously known each other or each other’s work. We were astonished at the complementarity of our interests as we used my recently published book and Gilligan’s past books, articles, and ongoing work on The Birth of Pleasure as the basis for our co-teaching. Gilligan discovered in my work a history of American social movements in which gender-subversive, resisting voices (explicit and implicit in all her work) were central to the recognition of basic human rights under American constitutional law. I found in Gilligan’s work a personal and political psychology that clarified the motivations for these movements—the psychological grounds for resistance to deep structural injustices. My training is in moral and political philosophy and law, and my books over the years had always been interdisciplinary, drawing not only on political philosophy and law but also, increasingly, on history. Conversations with Gilligan suggested to me that I needed to be even more multidisciplinary, not only taking on developmental psychology but also using works of art as a way of exploring and understanding what holds patriarchy in place and what motivates resistance to it. Conversations with Gilligan lead to my writing three books, Tragic Manhood and Democracy: Verdi’s Voice and the Power of Musical Art (2004), The Case for Gay Rights: From Bowers to Lawrence and Beyond (2005a), and Disarming Manhood: Roots of Ethical Resistance (2005b), all of which I wrote for Gilligan’s eye and ear and first presented in our seminar (“Gender Issues in the Culture and Psychology of Democratic Societies.” New York University School of Law, New York, Spring 2002). Both the subject matter and the method of these works developed from the closer study of resistance movements in light of my collaborative discussion with Gilligan. In what follows, I describe how engagement with Gilligan’s ideas deepened my understanding of the social movements described in Women, Gays, and the Constitution and the conception of manhood and democracy that I developed in the more recent work.

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  Current Issues in Antitrust Analysis

  Daniel L. Rubinfeld

  The use of empirical methods to study competitive issues, especially those relating to mergers, has been continually expanding in recent years. That growth has not come without controversy, however. In this chapter, I comment on three such issues. The first relates to market definition, the second to the relevance of market power measures in unilateral effects merger analysis, and the third to the use of merger simulation methods, again in the context of unilateral effects analysis. Market definition has historically been seen as a necessary, indeed often crucial, first step in the analysis of mergers as well as non-merger behaviour. I will point out, however, that there are circumstances in which it is preferable to skip the definition of markets and move directly to the analysis of competitive effects. With respect to market power, there has been a view that HHIs and other measures of market concentration are not especially relevant in unilateral effects analyses. I will suggest the contrary—that HHIs can be instructive, even in the unilateral effects context. Finally, there has been substantial debate about the use and misuse of merger simulation methods. I will explain why I consider merger simulation methods to be of continuing value, and I will discuss the current debate as to which simulation approach is most useful.

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  Reference Guide on Multiple Regression

  Daniel L. Rubinfeld

  Multiple regression analysis is a statistical tool used to understand the relationship between or among two or more variables. Multiple regression involves a variable to be explained—called the dependent variable—and additional explanatory variables that are thought to produce or be associated with changes in the dependent variable. For example, a multiple regression analysis might estimate the effect of the number of years of work on salary. Salary would be the dependent variable to be explained; the years of experience would be the explanatory variable. Multiple regression analysis is sometimes well suited to the analysis of data about competing theories for which there are several possible explanations for the relationships among a number of explanatory variables. Multiple regression typically uses a single dependent variable and several explanatory variables to assess the statistical data pertinent to these theories. In a case alleging sex discrimination in salaries, for example, a multiple regression analysis would examine not only sex, but also other explanatory variables of interest, such as education and experience. The employer-defendant might use multiple regression to argue that salary is a function of the employee’s education and experience, and the employee-plaintiff might argue that salary is also a function of the individual’s sex. Alternatively, in an antitrust cartel damages case, the plaintiff’s expert might utilize multiple regression to evaluate the extent to which the price of a product increased during the period in which the cartel was effective, after accounting for costs and other variables unrelated to the cartel. The defendant’s expert might use multiple regression to suggest that the plaintiff’s expert had omitted a number of price determining variables. More generally, multiple regression may be useful (1) in determining whether a particular effect is present; (2) in measuring the magnitude of a particular effect; and (3) in forecasting what a particular effect would be, but for an intervening event. In a patent infringement case, for example, a multiple regression analysis could be used to determine (1) whether the behavior of the alleged infringer affected the price of the patented product, (2) the size of the effect, and (3) what the price of the product would have been had the alleged infringement not occurred. Over the past several decades, the use of multiple regression analysis in court has grown widely. Regression analysis has been used most frequently in cases of sex and race discrimination antitrust violations, and cases involving class certification (under Rule 23). However, there are a range of other applications, including census undercounts, voting rights, the study of the deterrent effect of the death penalty, rate regulation, and intellectual property. Multiple regression analysis can be a source of valuable scientific testimony in litigation. However, when inappropriately used, regression analysis can confuse important issues while having little, if any, probative value. In EEOC v. Sears, Roebuck & Co., in which Sears was charged with discrimination against women in hiring practices, the Seventh Circuit acknowledged that “[m]ultiple regression analyses, designed to determine the effect of several independent variables on a dependent variable, which in this case is hiring, are an accepted and common method of proving disparate treatment claims.” However, the court affirmed the district court’s findings that the “E.E.O.C.’s regression analyses did not ‘accurately reflect Sears’ complex, nondiscriminatory decision-making processes’” and that the “‘E.E.O.C.’s statistical analyses [were] so flawed that they lack[ed] any persuasive value.’” Serious questions also have been raised about the use of multiple regression analysis in census undercount cases and in death penalty cases. The Supreme Court’s rulings in Daubert and Kumho Tire have encouraged parties to raise questions about the admissibility of multiple regression analyses. Because multiple regression is a well-accepted scientific methodology, courts have frequently admitted testimony based on multiple regression studies, in some cases over the strong objection of one of the parties. However, on some occasions courts have excluded expert testimony because of a failure to utilize a multiple regression methodology. On other occasions, courts have rejected regression studies that did not have an adequate foundation or research design with respect to the issues at hand. In interpreting the results of a multiple regression analysis, it is important to distinguish between correlation and causality. Two variables are correlated—that is, associated with each other—when the events associated with the variables occur more frequently together than one would expect by chance. For example, if higher salaries are associated with a greater number of years of work experience, and lower salaries are associated with fewer years of experience, there is a positive correlation between salary and number of years of work experience. However, if higher salaries are associated with less experience, and lower salaries are associated with more experience, there is a negative correlation between the two variables. A correlation between two variables does not imply that one event causes the second. Therefore, in making causal inferences, it is important to avoid spurious correlation. Spurious correlation arises when two variables are closely related but bear no causal relationship because they are both caused by a third, unexamined variable. For example, there might be a negative correlation between the age of certain skilled employees of a computer company and their salaries. One should not conclude from this correlation that the employer has necessarily discriminated against the employees on the basis of their age. A third, unexamined variable, such as the level of the employees’ technological skills, could explain differences in productivity and, consequently, differences in salary. Or, consider a patent infringement case in which increased sales of an allegedly infringing product are associated with a lower price of the patented product. This correlation would be spurious if the two products have their own noncompetitive market niches and the lower price is the result of a decline in the production costs of the patented product. Pointing to the possibility of a spurious correlation will typically not be enough to dispose of a statistical argument. It may be appropriate to give little weight to such an argument absent a showing that the correlation is relevant. For example, a statistical showing of a relationship between technological skills and worker productivity might be required in the age discrimination example, above. Causality cannot be inferred by data analysis alone; rather, one must infer that a causal relationship exists on the basis of an underlying causal theory that explains the relationship between the two variables. Even when an appropriate theory has been identified, causality can never be inferred directly. One must also look for empirical evidence that there is a causal relationship. Conversely, the fact that two variables are correlated does not guarantee the existence of a relationship; it could be that the model—a characterization of the underlying causal theory—does not reflect the correct interplay among the explanatory variables. In fact, the absence of correlation does not guarantee that a causal relationship does not exist. Lack of correlation could occur if (1) there are insufficient data, (2) the data are measured inaccurately, (3) the data do not allow multiple causal relationships to be sorted out, or (4) the model is specified wrongly because of the omission of a variable or variables that are related to the variable of interest. There is a tension between any attempt to reach conclusions with near certainty and the inherently uncertain nature of multiple regression analysis. In general, the statistical analysis associated with multiple regression allows for the expression of uncertainty in terms of probabilities. The reality that statistical analysis generates probabilities concerning relationships rather than certainty should not be seen in itself as an argument against the use of statistical evidence, or worse, as a reason to not admit that there is uncertainty at all. The only alternative might be to use less reliable anecdotal evidence. This reference guide addresses a number of procedural and methodological issues that are relevant in considering the admissibility of, and weight to be accorded to, the findings of multiple regression analyses. It also suggests some standards of reporting and analysis that an expert presenting multiple regression analyses might be expected to meet. Section II discusses research design—how the multiple regression framework can be used to sort out alternative theories about a case. The guide discusses the importance of choosing the appropriate specification of the multiple regression model and raises the issue of whether multiple regression is appropriate for the case at issue. Section III accepts the regression framework and concentrates on the interpretation of the multiple regression results from both a statistical and a practical point of view. It emphasizes the distinction between regression results that are statistically significant and results that are meaningful to the trier of fact. It also points to the importance of evaluating the robustness of regression analyses, i.e., seeing the extent to which the results are sensitive to changes in the underlying assumptions of the regression model. Section IV briefly discusses the qualifications of experts and suggests a potentially useful role for court-appointed neutral experts. Section V emphasizes procedural aspects associated with use of the data underlying regression analyses. It encourages greater pretrial efforts by the parties to attempt to resolve disputes over statistical studies. Throughout the main body of this guide, hypothetical examples are used as illustrations. Moreover, the basic “mathematics” of multiple regression has been kept to a bare minimum. To achieve that goal, the more formal description of the multiple regression framework has been placed in the Appendix. The Appendix is self-contained and can be read before or after the text. The Appendix also includes further details with respect to the examples used in the body of this guide.

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  A Rights-Based Approach to Research: Assessing the Right to Water in Haiti

  Margaret L. Satterthwaite and Amanda M. Klasing

  Rights-Based Approaches to Public Health presents a variety of public health professionals who utilize rights-based approaches in their work, the challenges they face, and the lessons they have learned. This expansive volume includes rights-based approaches with a variety of populations and across international settings. It explores environmental issues such as the right to clean air, water, and food. It examines the rights of the vulnerable, including women and children. It also includes work in difficult locations, such as prisons, high-conflict areas, and New Orleans post-Katrina. The useful tools and diverse case studies in this text provide the best models available for those interested in implementing or furthering a rights-based agenda. Key Features: contains an overview of the key international documents regarding the right to health; provides an exploration of the efficacy of rights-based approaches to health; covers professional and ethical issues in rights-based approaches; presents systemic and policy implications, including a rights-based approach to health care reform; includes global case studies from a wide variety of noted organizations and practitioners.

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  Comments on Designing the Microbial Research Commons: Digital Knowledge Resources

  Katherine J. Strandburg

  Recent decades have witnessed an ever-increasing range and volume of digital data. All elements of the pillars of science—whether observation, experiment, or theory and modeling—are being transformed by the continuous cycle of generation, dissemination, and use of factual information. This is even more so in terms of the re-using and re-purposing of digital scientific data beyond the original intent of the data collectors, often with dramatic results. We all know about the potential benefits and impacts of digital data, but we are also aware of the barriers, the challenges in maximizing the access, and use of such data. There is thus a need to think about how a data infrastructure can enhance capabilities for finding, using, and integrating information to accelerate discovery and innovation. How can we best implement an accessible, interoperable digital environment so that the data can be repeatedly used by a wide variety of users in different settings and with different applications? With this objective: to use the microbial communities and microbial data, literature, and the research materials themselves as a test case, the Board on Research Data and Information held an International Symposium on Designing the Microbial Research Commons at the National Academy of Sciences in Washington, DC on 8-9 October 2009. The symposium addressed topics such as models to lower the transaction costs and support access to and use of microbiological materials and digital resources from the perspective of publicly funded research, public-private interactions, and developing country concerns. The overall goal of the symposium was to stimulate more research and implementation of improved legal and institutional models for publicly funded research in microbiology.

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  Legal Judgment and Moral Reservation

  Jeremy Waldron

  Jeremy Waldron takes issue with a core premise of MacCormick’s post-positivistic characterisation of the relationship between law and morality, namely his “reservation principle”, which reconciles the autonomy of law from morality with the claim that the case for integration through law as an autonomous social medium does not require individuals to abandon their own morality. Building on some of Hart’s intuitions on the “thin” intrinsic morality of law and on his opening towards an inclusive legal positivism, MacCormick came to defend the “reservation principle” as a core principle of his political theory in Practical Reason in Law and Morality. Waldron challenges the scope of the reservation principle by considering whether it is justified in all cases, or whether, in some circumstances, it undermines law as an effective means of social integration. He does so by contrasting the implications of MacCormick’s reservation principle and Hobbes’ non-reservation principle in several circumstances. By doing so, Waldron not only problematises one key aspect of the post-positivistic turn of MacCormick (and of discursive theories of law in general, which have shifted the centre of gravity of legal systems from rules to principles), but also reveals the underpinning relationships between law and legal culture which, in themselves, may go a long way to account for MacCormick’s persistent defence of the central role of rules in democratic legal systems, as in the mass of circumstances in which law integrates society, it is rules that undertake the job.

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  Rights and the Citation of Foreign Law

  Jeremy Waldron

  This chapter addresses the specific issue of whether or not courts within jurisdictions that involve judicial review of legislation on human-rights grounds should cite foreign law. It argues that, whatever we think of the legitimacy of such powers, if they exist it is preferable that courts should be able to draw on the experience of comparable decisions in other jurisdictions. This enables courts to learn from the deliberations that have taken place elsewhere. It also generates more informed public debate on rights. Further the citation of foreign cases and statutes contributes to the harmonization of human rights law. However, improving the quality of human rights decision making and promoting the global consistency of human rights law should not be confused with the propriety of propriety of the judicial review in question.

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  The Rule of Law and the Importance of Procedure

  Jeremy Waldron

  This chapter states the importance of not letting the enthusiasm for a substantive conception—whereby the rule of law is treated as an ideal that calls directly for an end to human rights abuses—obscure the importance of the formal elements of the rule of law. These formal elements, as emphasized by legal philosophers, are as follows: the rule by general norms rather than particular decrees, by laws laid down in advance rather than by retrospective enactments, by norms that are made public, and rule by clear and determinate legal norms. Still, ordinary people are urging something other than the formal elements. The chapter identifies this something as the elements of legal procedure and the institutions, like courts, that embody them.

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  Vagueness and the Guidance of Action

  Jeremy Waldron

  The Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not necessarily be conceived as the rule of rules (as opposed, sometimes, to the rule of standards). The objection to standards is that, because they use predicates like ‘reasonable’ or ‘excessive’, they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law's application is concerned. And these are thought to be affronts to the Rule of Law. This chapter attempts to address those objections, using as a paradigm the ‘reasonable speed’ statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). It argues that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way).

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  Abraham, Jesus, and the Western Culture of Justice

  Joseph H. H. Weiler

  This chapter examines the two most critical Biblical narratives which pertain to the theme of justice, narratives which have shaped Western sensibilities on this issue. These are narratives of Abraham and Jesus and his trial.

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  Entrenchment—Human and Divine: A Reflection on Deuteronomy 13:1-6

  Joseph H. H. Weiler

  Throughout his career, Michael Reisman emphasized law’s function in shaping the future. In this wide-ranging collection of essays, major thinkers in the international legal field address the goals of the twenty-first century and how international law can address the needs of the world community. The result is a volume of outstanding scholarship that will appeal to all those—lawyers, political scientists, and educated laymen—interested in international law, legal theory, human rights, international investment law and commercial arbitration, boundary issues, law of the sea, and law of armed conflict.

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  The Arguments and Argots of Pleasure

  Kenji Yoshino

  Carol Gilligan's The Birth of Pleasure: A New Map of Love uses the Cupid and Psyche myth as the portal to many places. Cupid falls in love with Psyche but will only make love to her in the dark. Psyche's jealous sisters populate that darkness with horrible imaginings, saying her lover is a monster. Terrified, Psyche violates Cupid's injunction not to look at him and finds he is a beautiful god. Yet the light she casts is itself embodied and drips oil on his skin. The wounded Cupid reproaches her and flees. Psyche sets out to find him. After many travails she finds her way back to him and gives birth to a daughter named Pleasure (Apuleius 1989). Gilligan reads this myth as one about overcoming dissociation. In each of us, she argues, is a voice that could also be called a knowledge, a self, an instinct that feels natural or authentic. We are prevented from speaking in this voice by a culture that constantly overrides it. Dissociation is the tectonic slide between what we know and what we are told we know. That slippage occurs in the myth when Cupid tells Psyche that love and light cannot coexist. Psyche knows this cannot be the case. In lifting the lamp, she seeks to exit dissociation. This reading is revisionist. Traditional interpretations cast Psyche's need for ocular proof as a failing, specifically a gendered failing akin to the curiosity displayed by Eve or Pandora (Norris 1999, 112-34). By succumbing to their curiosity, these women destroy an idyllic state. Unlike Eve or Pandora, however, Psyche ultimately forges a finer world than the one she dissolved. This distinctive feature of the Psyche story makes it an apt archetype for Gilligan. Psyche vindicates her violation of the patriarchal law by having that violation lead to the birth of Pleasure. The Psyche myth frames Gilligan's multiple depictions of the triumph over dissociation. Dissociation is so pervasive that it often appears not to have an outside. To imagine the world beyond it is like imagining the outside of an egg from within. Gilligan employs the Psyche myth as a bird would use a beak, beating and beating at a complete surface. The myth enables two related ways of surmounting dissociation: a shift in subject position and a shift in cognitive style.

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  Trade Secrets and the 'Philosophy' of Copyright: A Case of Culture Crash

  Diane L. Zimmerman

  Except for a brief flurry of interest a quarter century ago, the nature of the interface in the United States between trade secrecy and copyright has rarely been thought to merit more than a passing reference in the most thorough of intellectual property casebooks. But both the expansive notion of what can constitute a trade secret and current debates about how best to understand copyright’s theoretical and constitutional underpinnings suggest that the subject is worthy of further exploration. Developments in the law over recent decades have pulled these two philosophically distinct forms of intellectual property into one another’s orbit, and the result has been what you would expect if two cars were headed toward one another at high speed in the same traffic lane: a ‘crash’ of cultures.

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  Contract Law and the Willfulness Diversion

  Barry E. Adler

  Expectation damages for breach of contract are generally awarded on a strict liability basis. That is, in the typical case, the reason for the promisor's breach is irrelevant. It is often stated that an exception to this general rule occurs in the event of “willful” breach, which is said to justify special damages. The supposed exception has led to a conundrum because every instance of anticipatory repudiation is in some sense willful as is every refusal to cure a deviation from promised performance, yet in only a subset of these cases is the “willful” label attached as a reason for a high damages award. Why then are some, but not all, intentional breaches singled out for condemnation?

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  Killings by Law Enforcement Officials: The International Human Rights Legal Framework

  Philip G. Alston and William Abresch

  Law enforcement officials in every country of the world use lethal force. Some do so occasionally; others do so routinely. Even when the resulting deaths are recorded by the police, in-depth and sustained investigations rarely take place except when compelled by public outrage. As a result, regulating and restraining the use of lethal force by law enforcement officials is one of the most pressing, frequently raised, and difficult challenges confronting international human rights law. The ways in which the international community has been able to address the problem and to respond to specific incidents also serve to reveal much about the current state of the international human rights regime.

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  The Evolving BIT

  José E. Alvarez

  The international investment regime fascinates international lawyers because, at long last, it finally permits us to engage in the parsing of cases. International lawyers have always had a tough time convincing people that our subject was really law because for a long time we had so little of what makes real lawyers salivate: namely, real judicial decisions. For a long time we had one or two decisions from the International Court of Justice a year to discuss; after 1994, we had in addition perhaps a dozen WTO Appellate Body decisions, along with a trickle of juicy international criminal cases dealing with mass murderers from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. But today we have a seemingly endless supply of arbitral decisions emerging virtually daily, heaps more than trade lawyers ever had and even more than those available to mass atrocities lawyers. Even though we seem to have (alas) a deep supply of mass atrocities around the world, we apparently have far more investors willing to make claims than international prosecutors willing to issue indictments. The international investment community is so happy that it has so many real judicial decisions subject to real enforcement—putting certain prominent Argentina outlier cases of non-compliance to one side—that it is understandable if we obsess about the cases and the investor-state arbitration system that gives rise to them. Small wonder that at conferences like this we focus on interpretative models for treaty interpretation in dispute settlement, on whether inconsistent arbitral decisions are a problem, or on ways to improve the legitimacy of ICSID arbitration through better annulment procedures, the establishment of an appellate body, changes to the relevant procedural rules, or by paying closer attention to conflicts rules. My intent here is to remind us that the subject of this conference, interpretation in investment arbitration, is ultimately about the interpretation of specific treaties—and that if those treaties change, it is likely that their interpretation will as well. My subject then is not about the evolving investment caselaw—fascinating as it is—nor about any of the proposals to lead to better reasoned arbitral decisions. I will address instead another way that interpretation in the investment regime evolves: through changes in investment treaties.