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  Aggregating Private Claims

  Samuel Issacharoff

  This volume contains the papers (in English) that were given at the conference of the German Wissenschaftliche Vereinigung für internationales Verfahrensrecht [Academic Association for International Procedural Law] in March 2009 in Oxford.

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  Facts, Investigation, and the Role of Discovery

  Samuel Issacharoff

  This volume contains the papers (in English) that were given at the conference of the German Wissenschaftliche Vereinigung für internationales Verfahrensrecht [Academic Association for International Procedural Law] in March 2009 in Oxford.

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  Party Funding and Campaign Finance Law in the United States

  Samuel Issacharoff

  From the comparative perspective, the regulation of party funding in the United States has three features that, at least in combination, set it apart from the rest of the world. First, any governmental measures to control the expenditure of what is termed campaign finance in the United States is constrained by a constitutional regime that looks sceptically on any state activity that constrains political expression, even indirectly. The comparatively strong freedom of expression guaranteed in the First Amendment of the United States Constitution creates a rights overlay to the campaign finance field that severely limits any attempt to regulate or restrict campaign spending. Second, elections in the United States are privately funded. The lack of any comprehensive public funding scheme is likely due in part to a historic reluctance on the part of the American public to finance political parties, something that operates even independently of the difficulty that regulators have found in trying to limit private expenditures against the constitutional guarantees in the First Amendment. The American Constitution shows its age in distinct ways. One is that, unlike more recent constitutions, the American version does not affirmatively provide a role for political parties. Indeed, the Framers of the American Constitution thought parties to be a form of what they termed “faction”, an organisation of sectional interests presumptively hostile to the public good. Third, the United States has more elected state officials than probably any other nation on earth. The deep-seated populist commitment to accountability of multiple low-level public officials to the electorate translates into elections for positions that would be filled administratively in any other democracy. The litany is large, but among the more conspicuous are elections for state court judges and school boards. Since these candidates typically run in a single constituency, without the benefit of a proportionally selected slate, their ability to rise above the herd to get elected requires an ability to raise money independently to get elected. These three features contribute to great pressure to raise money for contested elections and a tough legal environment in which to regulate the funding of politics and political expenditures. Congress and state legislatures have made several attempts to control the role of money in political campaigns, but have consistently seen their legislative enactments hollowed out by a Supreme Court highly sceptical of any intrusion into the free expression of political ideas. This overview is meant to serve as an introduction to the development of campaign finance law in the United States. It begins with a description of the foundations of campaign finance regulation and then explores the subsequent treatment by the Supreme Court, concluding with the current state of the law.

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  Democracy and Electoral Processes

  Samuel Issacharoff and Laura Miller

  For most of American history, the right to vote was part of a contested terrain over the inclusiveness of American politics. Over time, the franchise expanded to include women and, belatedly black and other minority citizens. Indeed for the 100 years between the ratification of the Fifteenth Amendment and the passage of the 1965 Voting Rights Act, the continued frustration of the franchise to black Americans was the defining issue of voting in America. Remarkably, and imperfectly, the combination of the Voting Rights Act and federal enforcement took most of the elementary issues of a formal right of participation off the historical table. Although disputes remain over the sweeping disenfranchisement of released felons and identification requirements for casting a ballot, these are decidedly secondary and would count at best as marginal burdens on the franchise. So long as the critical legal issues in voting were confined to a first-order claim for equal rights of participation, there was little pressure on legal scholarship to refine a law of the political process independent of the standard constitutional categories of equal protection or due process. Two developments, however, began to push toward the emergence of a distinct body of law, now known as the law of democracy or, more generically, as election law. Both of these developments addressed a concept of ‘vote dilution,’ a difficult category of improper burdening of the franchise even where all individuals are given full capacity to register and vote. Vote dilution necessarily implicates the capacity for a vote to be aggregated effectively with those of like-minded citizens to translate into representation and agreeable legislative policies. Once defined in the aggregate, such voting claims (sometimes referred to as second-generation claims in the minority voting rights literature) quickly transcended the customary individual rights claims that dominate equal protection law. The first challenge to push beyond the simple right of participation came with the Court’s great reapportionment cases, beginning with Baker v Carr. In these cases, the grotesque malapportionment of many of America’s legislative districts gave some votes a numerical weight dozens of times greater than those in districts in the same jurisdiction. Although the Supreme Court disingenuously claimed that the equal voting strength claim could be fitted within ‘familiar’ categories of equal protection, this was not the case. In the malapportioned districts, there need not be any formal prohibition on participation by any individual or group. Nor was there a content-basis to the claimed burden such that persons were disadvantaged because of their party affiliation or their race. Either formal prohibitions or burdening disfavored groups would have implicated constitutional categories that were indeed ‘familiar.’ In Reynolds v Sims, the case that enshrined the one person, one vote doctrine, the Court went further to define the constitutional guarantee as being one of an equally ‘effective’ vote. Since no vote can be effective in the absence of potential inclusion in a winning coalition, Reynolds effectively invited the law of democracy to push beyond the customary rights domain that had been the hallmark of the post-Brown Warren Court. While much of the law of political exclusion in America concerned the ongoing and shameful exclusion of black citizens from the franchise, the post-Voting Rights Act period challenged the simple model of exclusion. Once black voters were for the most part ensured the right of participation, the question became why minority voting rights law was not obsolete. Courts, and subsequently Congress in the 1982 amendment of Section 2 of the Act, came to understand that the aim of minority enfranchisement was not simply the ability to cast a vote as a formal matter, no less than that was sufficient for citizens facing the consequences of serious malapportionment. In the case of black citizens, particularly in the Democratic strongholds of the South, the ability to cast a vote revealed secondary obstacles in the form of at-large elections, staggered terms, single-slate requirements, and other mechanisms that had the effect (and often the purpose) of over-rewarding majority coalitions and frustrating the ability of minority coalitions to secure any representation at all. In jurisdictions marked by both the absence of partisan competition and by high levels of voting along racial lines (‘racial bloc voting’), these structural features of the voting systems resulted in the continued absence of elected black officials, even as the black franchise expanded. As with the post-Baker reapportionment cases, the second generation minority voting cases forced the law to confront a richer set of problems concerning the proper allocation of electoral opportunity. This was an inquiry for which the narrow categories of equal protection or due process would serve only as placeholders for structural debates over the nature of representation and the role of courts. In turn, the apportionment and vote dilution cases led to the development of a new field of constitutional law, one that heavily intersected corresponding developments in political science. This chapter will proceed in three parts. The first gives a brief state of the developments in political science from Kenneth Arrow’s pioneering work to the refinements in public choice theory to the emergence of institutional approaches to politics. This review is not intended to be comprehensive but instead is designed to give the background for the emergence of structural approaches (that is, non-rights derived claims) to legal oversight of the political process. Second, we trace the emergence of a distinct approach in law, one drawing more from Joseph Schumpeter and public choice models of political competition, than from classic constructs of equal protection. Despite the centrality of minority voting rights in the development of this area, these issues are treated more fully elsewhere and so our focus will be on the issues of campaign finance, gerrymandering, and the role of political parties. Finally, we conclude with the emerging areas in this field of law, particularly as concerns the institutional dimensions of the political process.

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  Foreword

  Benedict Kingsbury

  This collection of papers on public law issues relating to Global Administrative Law brings to English language readers the ideas and approaches of legal scholars in Argentina, Colombia, Ecuador, Uruguay, Venezuela, Italy, Portugal and Spain. The collection has its foundations in the fruitful Ibero-American Forum of Administrative Law, an initiative currently led jointly by the book's editors, Jaime Rodríguez-Arana in Spain and Javier Robalino Orellana in Ecuador. Global (or at least transnational) regulatory governance has a long history. For example, formally-organized attempts to manage transnational spread of diseases began to be institutionalized with the series of International Sanitary Conferences beginning in 1851, and legal instruments such as the International Sanitary Convention (concerning cholera) of 1892. Basic transnational worker-protection regulation extended from anti-slavery to wider measures, such as the 1906 Berne Convention against the use of white phosphorous in matches, followed by the founding in 1920 of the International Labour Organization. The Bank for International Settlements was founded in 1930, and the International Monetary Fund with tough regulatory authority on exchange rates and balance of payments issues was created along with the World Bank in 1945. However, the rapid growth in global regulatory governance in recent decades, and the heightened impact of such regulatory rules and institutions because of rising global trade and investment flows, has begun to pose qualitatively new challenges of international and national politics and law.

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  Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest—The Concept of Proportionality

  Benedict Kingsbury and Stephan W. Schill

  This chapter observes that investment treaty tribunals are increasingly confronted with resolving conflicts between investment protection and competing public policy concerns, including the protection of the environment or human rights. It suggests that arbitral tribunals could resolve such conflicts by drawing on proportionality analysis as a public law concept. After illustrating how proportionality analysis as a judicial technique has spread from its origins as a concept of German public law to many other domestic as well as international dispute settlement systems, it argues that proportionality analysis can also be applied, and in fact has been applied, as an interpretative technique in investment treaty interpretation. It particularly plays a role in the context of indirect expropriation and fair and equitable treatment, but also in applying necessity-related clauses.

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  Introduction: The Roman Foundation of the Law of Nations

  Benedict Kingsbury and Benjamin Straumann

  This introductory chapter first sets out the purpose of the book, which is to bring together a set of fresh perspectives exploring the significance and implications of the use made of Roman legal concepts, and of Roman just war theory and imperial practice, by early modern European writers who shaped lasting approaches to natural law and the law of nations. It then turns to the unifying focus of this volume, the work of the Italian émigré legal scholar and practising lawyer Alberico Gentili (1552–1608). An overview of the subsequent chapters is presented.

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  State of Nature Versus Commerical Sociability as the Basis of International Law: Reflections on the Roman Foundations and Current Interpretations of the International Political and Legal Thought of Grotius, Hobbes, and Pufendorf

  Benedict Kingsbury and Benjamin Straumann

  Three foundational approaches to international order and law beyond the state were framed in early to mid-seventeenth-century Europe, by Hugo Grotius (1583–1645), Thomas Hobbes (1588–1679), and Samuel Pufendorf (1632–94), at the same time as the recognizable modern idea of the state was itself being framed. Grotius, Hobbes, and Pufendorf each took distinctive approaches to the problems of whether and how there could be any legal or moral norms between these states in their emerging forms. They differed in their views of obligation in the state of nature (where ex hypothesi there was no state), in the extent to which they regarded these sovereign states as analogous to individuals in the state of nature, and in the effects they attributed to commerce as a driver of sociability and of norm-structured interactions not dependent on an overarching state. The core argument of this chapter, presented in section II, is that the differences between them on these issues are of enduring importance. To situate them in what we regard as a key element of their intellectual context, that is the Greco–Roman lineage of ideas on law and on order and justice beyond the state, we outline in section I the Carneadean debate and argue for the importance of Roman law and of Greco–Roman political ideas in sixteenth-century writings of Vitoria, Vazquez, Soto, Gentili, and others whose works influenced the seventeenth-century writers. Section II builds on this view of the importance of Roman influences, in engaging with several current historiographical debates about interpretations of Grotius, Hobbes, and Pufendorf. Section III comments very briefly on the adaptation of, or responses to, some of these seventeenth-century ideas in certain strands of eighteenth- and early nineteenth-century thought, concerning what by the end of that period had become a recognizably modern idea of international law; the particular focus is on lines of development from David Hume and Adam Smith to Jeremy Bentham and Georg Friedrich von Martens. Any inquiry of the sort we undertake here entails some confrontation with a fundamental question: Should contemporary thought on international politics and international law be shaped by understandings of its history? Many scholars now engaged in rich debates in the historiography of political thought concerning issues beyond the polity, especially the historiography of early modern European thought on these issues, bring to these debates a set of interests and questions that are tied to the world in which we live now. At the same time, several of the leading historians of political thought (particularly those associated with the Cambridge School) who have helped develop fresh and influential interpretations of early modern writers concerned with normative international thought, place great emphasis on studying these early writers strictly in their own context, and are rightly wary of anachronism in trying to make them speak to us today. In our view, several of the most significant recent interpretations of early modern international political and legal thought, some of them adumbrated by historians linked to the Cambridge School, have much to offer those interested in current problems of international law. In this chapter we will try to demonstrate this. We will refer in particular to debates related to the work of Richard Tuck on self-preservation as the foundation of Grotius’s natural law, to interpretations Noel Malcolm advances of Hobbes’s views of the state of nature, and to Istvan Hont’s arguments about the development of ideas of commercial sociability from Pufendorf to Adam Smith. In engaging with current debates among historians of political thought about the orientations and commitments of these thinkers, we endeavour also to transpose these debates to questions about international law with which these modern historians are not necessarily so centrally concerned. To foreshadow three basic questions we will address in this way: 1. Did Grotius construct a natural law based on self-preservation, as a means to meet the sceptical objections of Montaigne and Charron (as Tuck argues)?; or should Grotius be read as building natural law in a Ciceronian tradition? 2. What is the significance of Hobbes’s view of the relation between individual and state, and of his essentially prudential rather than moral account of natural law beyond the state? Or, to put it another way: Are the political realists right about Hobbes, or can he plausibly be read (as Malcolm does) as a philosopher of international peace? 3. What has been the importance of the understanding, which Istvan Hont presents as extending from Pufendorf to Adam Smith and beyond, of commerce as a driver of social and moral order beyond the state?

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  Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm

  Mattias Kumm

  The story about how the ECJ, from Stauder to Internationale Handelsgesellschaft and Nold has developed its own human rights jurisprudence is a staple element in European scholarship. It is part of the narrative describing the role of the ECJ in the constitutionalisation of EC law. By holding that fundamental rights are an integral part of the general principles of law the observance of which the Court ensures, the ECJ has accomplished two things: to incorporate a central feature of modern constitutions into the corpus of EC law and to help strengthen the authority of EC law against potential challenges before national courts in the name of domestic constitutional rights. So much that is right has been written about this, that I will not focus on trying to uncover a new nuance with regard to any of the obvious themes, be it the complex interaction between the ECJ and German courts, the subtle shift in doctrine between Internationale Handelsgesellschaft and Nold or the future of the ECJ’s doctrine in light of changes relating to the Charter of Fundamental Rights or accession to the ECHR. Instead the focus of this chapter is an aspect of International Handelsgesellschaft and Nold that is both fundamental and yet seems to have escaped commentators’ attention. In Nold and International Handelsgesellschaft the ECJ develops the outlines of a conception of human rights that departed from a number of widely held conventional assumptions about what human or constitutional rights are and how they operate in legal practice. It is a mistake to believe that in Nold and Internationale Handelsgesellschaft the ECJ in the early 1970s merely Europeanises a well-established understanding of human rights, as has been recognized by Member States. Instead the ECJ reconceives constitutional and human rights practice in an interesting and challenging way. The traditional legalist paradigm of human and constitutional rights is effectively replaced by a rationalist human rights paradigm. In order to substantiate and clarify the claim that the ECJ embraces a new human rights paradigm, the first part this chapter will highlight the central features of the ECJ’s conception of human rights and its tension with conventional understandings of human rights. A second part will briefly point to some basic questions on the conceptual, institutional and doctrinal level that such a paradigm shift gives some urgency to. Clearly, a substantial monograph, rather than a short essay, would be necessary to more fully develop the themes, substantiate and perhaps qualify the arguments that are made in this essay. But the point of this essay is modest. It is to make aware of a number of mutually reinforcing features in the ECJ’s human rights practice, that give rise to number of distinct questions, that have not received the attention they deserve.

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  The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia

  Mattias Kumm

  The idea of a ‘postnational constellation’ conjures up a world in which globalisation, privatisation, and individualisation have changed the basic configuration of the legal and political world. The state has become disaggregated as regulatory authority has shifted towards transnational governance structures and devolved to subnational public authorities or private actors. There are a number of questions one might ask about these changes. Have they strengthened human rights and have they furthered peace, justice, and prosperity within and across societies? Or have they created new inequities and new dangers? The literature on these questions, either generally, or addressing specific policy issues, is endless. This chapter will leave all of them aside. The focus here is the more limited question of how these changes can best be described and assessed in constitutional terms. Specifically the question is: How are these changes affecting the tradition of modern constitutionalism? The constitutional literature addressing this issue can be roughly divided into two camps. According to the first—call them constitutional triumphalists—we are witnessing the triumph and radical expansion of constitutionalism. Not only has liberal democracy spread considerably after the end of the Cold War, but international legal practices have also gone through a process of constitutionalisation. More generally, during the last decade the idea of constitutionalism beyond the state has gained considerable ground, and it is no longer unconventional to refer to the EU or the UN in constitutional terms. According to the second camp—call them constitutionally concerned—we are witnessing a threat to and perhaps even the demise of constitutionalism. Since the end of the Cold War the capacity of national constitutions to serve as a framework for the self-governing practices of a national community has been significantly eroded. Constitutionalism is either in its twilight years: part of an era that has gone by (the nostalgic key, characteristic of European scholars) or something that needs to be regained and protected (the more assertive tone associated with ‘revisionist’ scholars writing on the law of foreign affairs in the US). An obvious way to resolve this dispute in favour of the first position is to suggest that constitutionalism is alive and well, and has simply transformed itself to address new challenges. Some degree of national constitutional self-government might have been lost, but that loss is only the result of the emergence of, at least in principle, desirable constitutionalised forms of transnational governance that compensate for the deficiencies of domestic constitutionalism. In the end, a position along these lines is, in my view, correct. But, as will become clear, that position is not as obvious or easy to adopt as many of those embracing the idea of constitutionalism beyond the state might believe. There are deep commitments, connected to ways of imagining the legal and political world and tied to conceptual structures that have played a central role in the tradition of modern constitutionalism, with which the idea of constitutionalism beyond the state is in tension. If it is plausible to talk of constitutionalism beyond the state, it can only be because some of these basic conceptual structures and the legal and political world that is imagined through them turn out to have been inappropriate and misguided. The stakes in this debate, then, are high. And the attempt to come to a facile resolution should be avoided. The point of this chapter is not primarily to resolve the issue, but to develop a deeper under- standing of what is at stake. To the constitutional triumphalists it sounds a note of caution: be aware of the historical depth and conceptual structure of the world that is left behind and the radical rethinking of the constitutional tradition—a genuine paradigm shift—that will have to come with it. That kind of constitutional transformation is only plausible in conjunction with a genuine revolution in the way law and politics are understood, a revolution no less deep conceptually than that brought about by the emergence of the Westphalian order. To the constitutional nostalgists it offers a challenge: it is not enough to simply repeat the old certainties with a sense of superiority, imagining constitutional triumphalists as Settembrinièsque, whiggish fools who rush in where wise men fear to tread. Those old certainties are themselves open to serious questioning and critical analysis and need to be assessed in light of an alternative constitutional paradigm that might just turn out to be persuasive.

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  From Diverse Campuses to Integrated Campuses: How Can We Tell if We Are “Walking the Walk”?

  Jeffrey S. Lehman

  The Supreme Court’s decision in Grutter v. Bollinger affirmed the authority of universities to employ admissions policies that provide a broadly diverse community of qualified applicants with access to their campuses. In a thoughtful majority opinion by Justice Sandra Day O’Connor, the Court held that it does not automatically violate the Equal Protection Clause if public universities deliberately work to create communities that include pedagogically meaningful numbers of students from a broad array of racial, ethnic, religious, socioeconomic, and ideological backgrounds. I was a named defendant in the litigation, since I was the dean of the University of Michigan Law School at the time. And people who are friendly to our position sometimes pose questions such as the following: “Why was that so difficult?” “Why was it only a 5–4 victory, rather than a 9–0 decision?” “Why were people so angry with you for promoting such an obviously worthwhile goal?” I have been thinking about questions such as these for many years, and I believe the answer is clear. Whenever we employ affirmative action, we are using a very dangerous tool. Think, if you will, of a very sharp knife. Or a caustic chemical. Or perhaps a technology like recombinant genetics. Think of any tool that could, in the wrong hands, cause enormous harm to innocent people. The tool here is the category of race. Through affirmative action, we are using race to do more than just describe the world we see around us. We are giving race performative significance. We are looking at individual applicants, classifying them according to race, and then using the result of that classification process as a factor in how we allocate valuable opportunities. America’s history tells us that this is a very sharp knife indeed. For almost four hundred years, we have seen racial categories used to construct systems for the subordination of individuals who were assigned to disfavored groups. And it is important to remember that across those four centuries the people who were using the knife invariably believed they were doing so in order to promote an important social end. The constitutional jurisprudence of the Equal Protection Clause and the legislation of the civil rights era have given us an approach to the use of race as a category by large and powerful institutions. Our society does not ban the knife. It does not outlaw the technology. It does not say that such institutions must always act in a rigidly color-blind fashion. Instead, our legal system has chosen to rely on the concept of a rebuttable presumption. It declares this kind of classification to be “suspect.” Recognizing that racial classifications can do enormous harm in the wrong hands, it holds their use up to “strict scrutiny.” Our system declares their use to be presumptively illegitimate, permissible only if the institution that wishes to use them can show that its actions are “narrowly tailored” to promote a “compelling interest.” In the Grutter lawsuit we were able to clear that hurdle. Justice O’Connor’s opinion affirmed that our society has a compelling interest in creating university campuses that are meaningfully integrated. That interest is compelling because an integrated campus promotes certain learning outcomes. And it is compelling because the legitimacy of our democracy depends upon the existence of open, visible paths to leadership for people of all races who are talented and qualified. Justice O’Connor’s opinion also affirmed that the law school’s admissions policy was narrowly tailored to promote that interest. Because we were being careful with the knife, we would be allowed to keep using it. So why was it so difficult? Why did the other eight justices not agree with Justice O’Connor? And why, in 2006, did the voters of Michigan adopt Proposition 2, a ballot initiative saying that they would prefer university admissions to be rigidly color blind? I believe a significant part of the answer has to do with trust. Not everyone trusts universities with sharp knives. Not everyone believes that universities are sincere. One need look no further than Justice Scalia’s vituperative dissent in Grutter, in which he refers to “universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses.” The charge is hypocrisy—or, more gently, an incapacity to follow through on our commitments.

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  Contracts of Genesis

  Geoffrey P. Miller

  Among the man fascinating texts in the Hebrew Bible are a number of stories that describe the making, performance, and breach of contracts and contract-like arrangements. These include Abraham’s purchase from Ephron the Hittite of a burial ground for his wife Sarah, Esau’s sale of his birthright to Jacob for a mess of pottage, the performance by Abraham’s servant of a contract of agency to procure a wife for Isaac, Jacob’s employment agreement with his father-in-law Laban, Jacob’s sons’ negotiation and breach of a peace treaty with the Shechemites, Jacob’s fraudulent procurement of Isaac’s blessing, and Jephthah’s vow to perform a sacrifice in exchange for a military victory. Most of these stories are found in the book of Genesis. All or nearly all date from the earliest strata of texts in the Hebrew Bible, the “J” source. These stories are among the fundamental documents of Western culture. They have been studied, analyzed, and interpreted for three thousand years. To the best of my knowledge, however, they have never been considered from the standpoint of legal-economic theory. This article attempts such an analysis. Drawing on archaeological, anthropological, and textual scholarship, I situate these stories within the historical context in which they appear to have developed. This was the period recounted in the book of Judges: a time when “there was no king in Israel,” no geographically extended authority claiming a monopoly in the use of coercive force, no standing army, no capital city, no formal courts, and no archive or authoritative system of written records; in short, there existed no one of the institutions that even in ancient times inevitably attended the establishment and organization of a nation-state. Social conditions such as these presented enormous difficulties for the organization of society in any but the simplest form. The problems can be understood and analyzed from the standpoint of legal-economic theory. Among the fundamental tenets of law and economics is the proposition that human welfare is greatly enhanced if property rights are clearly defined and effectively and readily transferable. These is no reason to suppose that this proposition held any less true in ancient times than today. Social conditions in ancient times, especially those prevailing in the hill country of Canaan at the time of the Judges, however, presented special problems when compared to current conditions. The definition and transfer of rights is difficult enough today, even with all the benefits of an established central authority and a technologically advanced society. These functions were far more difficult in the stateless and technologically impoverished (by our standards) society of the period of the Judges. In the absence of a state wielding a monopoly of force, the enforcement of executory contracts was inevitably problematic. Once one party had performed, the other party might well be tempted to take the benefit of the performance and then renege on his own promises. Further, in the absence of an authoritative system of written records, the contractual obligations themselves were subject to great uncertainty. Most contracts were oral and, accordingly, subject to the vagaries of memory and the possibility of fraud. Disputes over contractual meaning were likely even among parties acting in good faith. And good faith was by no means assured, especially when the contracting parties were not tied by bonds of clan or cult. The possibility of disputes would have deterred the contractual process at the outset since the parties could not be sure of obtaining the benefit of their bargains. Even more problematic, disputes over contract terms were likely to lead to violence and even blood feuds in the absence of an established state claiming a monopoly of coercive force. In my view, many of the stories in the J source served the important social function of embodying and culturally transmitting rules of customary law that responded to the problems of contract and quasi-contract formation and enforcement in a society without an established state. Indeed, the social importance of this function largely explains why these particular stories survived and passed through the oral tradition to be collected by the authors of the J source and incorporated into the great national epic of the newly formed state of Israel. These stories, of course, do not resemble “law” of the type with which we are familiar today. Unlike other, explicitly legal texts in the Hebrew Bible, these texts do not expressly set forth binding prohibitions or injunctions. Nor do they record the decisions of a tribunal with the authority to adjudicate disputes. They instead appear to be tales about important events in the livers of the Patriarch and other heroes of the Israelite people. There is a good explanation, however, for why principles of customary law would be embodied in narratives of this type. In a society without an authoritative system of written record, there was an enormous premium of ease of memorization. Vibrant, lively stories such as the tales of the Patriarchs were easy to remember and could be carried in the culture without the intercession of any cohort of specialized functionaries such as scribes or, in later times, lawyers. Rules of customary law could be easily passed along in the culture by being tagged to stories such as these. The stories, moreover, tended to be self-authenticating because the protagonists were charismatically endowed tribal ancestors whose actions conveyed patriarchal authority. As we will see, the rules of customary law that can be drawn from these stories are, in general, not ones in use today. Indeed, many of these rules appear harsh and even unjust. The Jacob-Esau story, for example, seems to carry the message that a contract for sale is valid and enforceable even if made under conditions of extreme inequality of bargaining power. The moral ambiguities of these and other stories in the J source pose a challenge to theological interpretation: why did these divinely inspired Patriarch occasionally behave so badly? Seen as embodiments of customary law, however, and placed in the social setting in which they arose, these texts can be explained in a relatively straightforward fashion. The dangers of disputes over meaning in a society without a state or an authoritative system of written records created an urgent need for bright-line rules in the interpretation of contractual and quasi-contractual behavior. Many of the stories I discuss in this article—including the Jacob-Esau tradition—convey exactly such bright-line rules. Occasional unfairness in application was a cost that the society had to bear in order to avoid the even greater costs of uncertainty in interpretation. Moreover, in light of the social conditions of the times, it is rather easy to explain why the stories that were preserved in the oral tradition and incorporated into the J source often seem so morally problematic. The premium on memorization imposed by the absence of an authoritative system of written records implies that the stories that survived in the tradition would convey information as efficiently as possible. Far more information is conveyed by the hard case than by the easy case since the easy case leaves the hard cases open whereas the hard case disposes of the easy ones a fortiori. Many of the stories in the J source about contracts and quasi contracts are hard cases – indeed, sometimes as hard a case as could be imagined, as in the case of the Jacob-Esau tradition, where a birthright is exchanged for some lentil stew, or the vow of Jephthah in which the hero is required to sacrifice his own child. As hard cases, they conveyed information in the culture with impressive efficiency. The stories that do not contain hard cases can be explained on other ground. The story of Abraham’s purchase of a tomb at Machpelah, for example, repeatedly stresses the fairness and goodwill exercised by all parties to the contract; as discussed below, this story constitutes the oral recordation of a deed to real property; the easiness of the case protects title to the property of warding off potential claims of fraud by the seller or his descendants. Many, perhaps most, of the interpretation put forward in this article are, to the best of my knowledge, new to biblical scholarship. This apparent originality necessarily gives me pause, for these texts are among the core documents of Western culture. If these interpretations are valid, would they not have been advanced before by some of the great thinkers who have devoted their livers to reading and pondering these texts? I have delayed publishing this article for several years out of concern that my ideas may be wrongheaded or howlingly misguided and have sought the advice of eminent biblical scholars. Yet, as I have continued to study and analyze these and other biblical texts, I remain convinced that the interpretations are plausible and even persuasive. The originality of many of the interpretations stems, I think, from the fact that I am applying a relatively new discipline of legal-economic analysis to texts that have usually been interpreted from other perspectives. I wish to stress one other point at the outset. In viewing these biblical texts from this secular perspective, I in no way intend to denigrate the great spiritual meaning and the astounding literary beauty that they also contain. My own initial interest in these texts was from a spiritual rather than a secular and analytic standpoint. I believe, however, that texts as profound as these can contain many meanings, spiritual as well as secular, and that the secular meaning do not detract from their spiritual message. In this article, I attempt to offer one possible secular meaning as a addition to the many-textured meaning already recognized within these magnificent stories. This article is structured as follows. Section I describes some of the findings of biblical textual criticism that dates most of the texts discussed in this article from the earliest period of the Hebrew Bible’s compilation. This section then outlines some of what is known about the social conditions in which theses texts appear to have developed, derived both from the Bible itself and from archaeological investigation. Section II proceeds to the analysis of particular texts. Section III summarized the findin

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  J as a Constitutionalist: A Political Interpretation of Exodus 17:8-16 and Related Texts

  Geoffrey P. Miller

  In this Article, I argue that the pericope in Exodus 17:8-16, which recounts a wilderness battle between the Israelites and the Amalekites, should be interpreted as a political document written within the framework of the royal court in Jerusalem. The purpose of the text is to define power relations among four important institutions in the government: the king, the professional military, the priests of the official cult, and the bureaucracy of the royal court. The overall thrust is an attempt to limit the authority of the military vis-á-vis its civilian counterparts. The text, I will argue, utilized symbols of political authority in order to emphasize a meaning that would have been apparent to the participants in the power structure of the Jerusalem court. Because the text allocated, defined, and limited political power among organs of the government and because its place within the national epic made it resistant to subsequent alteration, it is appropriate to call this a “constitutional” provision. And, because it is typically attributed to the J source, this Article is title “J as Constitutionalist” – although, as will be argued, there are reasons of style and substance to suppose that this particular text may not have been committed to writing as early as the bulk of the J material. This Article is structured as follows. Part I describes the leading interpretations offered by scholars of this pericope to date than identify the shortcoming of each of these theories. Part II offers an alternative interpretation of the Amalekite episode as a political text and connects this tradition with two other Exodus texts: the immediately contiguous Exodus 18:1-27, recounting Moses’ meeting with his father-in-law the priest of Midian, and Exodus 24:12-14, in which Moses instructs the people to bring their causes before Aaron and Hur during Moses’ absence. I end with a brief conclusion.

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  Ritual and Regulation: A Legal-Economic Interpretation of Selected Biblical Texts

  Geoffrey P. Miller

  This article analyzes three texts of the “J” source in the Hebrew Bible – the creation and original sin of Adman and Eve in the Garden of Eden, the primal fratricide of Cain against Abel, and the binding of Isaac on Mount Moriah – from the standpoint of modern legal-economic methodology. I claim that these three texts contain a brilliantly articulated, remarkably coherent account of the cultic ritual of animal sacrifice that dominated religious practice in the society of ancient Israel. These texts not only provided a legitimating ideology for the sacrifice but also set forth legislation regarding entitlements, obligations, and proper conduct during the performance of the ritual. Interpreted along these lines, the Eden story can be seen to legitimate and explain the institution of animal sacrifice. The Garden is a mythologized retrojection into primordial days of the setting of a cultic shrine in Iron Age Israel. Within this setting, God creates man by a series of steps that are symbolically reversed in the cultic destruction of the sacrificial animal. Adam and Eve steal God’s food and are expelled from the Garden, events that are also reversed in the sacrificial ritual, in which the penitent offers human food to God in order to reestablish a connection with divine power. The story of Cain and Abel contains legislation concerning cultic obligations and entitlements. The text dictates that penitents bring first fruits to the altar, that meat offerings are preferred to grain, and that an offering may be rejected if inadequate. It even regulates details of the ritual itself, such as the proper direction of the penitent’s gaze. Above all, the story prohibits self-help sacrifice – the conduct of sacrificial rituals outside of the cultic shrines and by persons other than the priests who served at the shrine. The story of the binding of Isaac establishes the absolute obligation of members of the Israelite community to comply with the injunction to sacrifice and to do so without cavil. Further, the story legitimates the requirement that items of economic value be brought to the altar for sacrifice and commands penitents to be grateful that even more is not asked of them. Many of these interpretations of classic biblical texts are, to the best of my knowledge, original in the literature. While originality is no vice, in biblical interpretation or elsewhere, it is nevertheless a source of some diffidence. Many great minds have pondered these texts. If these thinkers have failed to note the connection with the sacrificial ritual, perhaps the connection itself is illusory. I have delayed publishing these ideas for a number of years out concern for this possibility. Nevertheless, over time I have become more convinced that the interpretations are conceptually coherent and plausible in terms of what we know of the social conditions in which the texts developed. The apparent originality of the interpretations, I believe, stems from the fact that they are informed by a modern discipline of legal-economic analysis that was not available to prior commentators. Legal-economic analysis provides a methodology for understanding the nature and functioning of social institutions in terms of the behavioral incentive that these institutions create for individuals in the society, including, importantly, individuals whose economic welfare depends directly on the functioning of the institutions themselves. As will be seen, the texts discussed in this article probably arose in a cultic setting and can be understood at least in part as serving the interests of the priests of the cultic sites in which the sacrificial rituals were performed. Thus, with due caution as to the dangers of reading one’s own theoretical model into the material, it appears to me that legal-economic analysis may have something valuable to add to the existing corpus of biblical interpretation, at least with respect to the texts under consideration here. I offer these interpretations at a level of meaning that the narratives can bear, without derogation of other interpretations. Subject to this caveat, I believe that a legal-economic analysis is a potentially valuable contribution to our understanding of these fundamental texts of Western culture. Section I of this article describes some of what is known about cultic sites in premonarchical Israel. Section II looks at the Eden story. Section III examines the Cain-Abel saga, and Section IV analyzes the binding of Isaac. Section V provides the conclusion.

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  Intellectual Hazard and the Design of Financial Stability Regulation

  Geoffrey P. Miller and Gerald Rosenfeld

  This paper considers the problem of intellectual hazard in the optimal design of financial stability regulation. Intellectual hazard is the tendency of behavioral biases to interfere with accurate thought and analysis within complex organizations. Drawing on concepts of intellectual hazard, we argue that financial stability regulators should be staffed by persons other than individuals serving in central banks, finance ministries, or bank regulators. Otherwise, instead of providing new information, these systemic risk regulators will simply recycle old information, contributing little to the independent analysis of the situation and leading to a potentially damaging complacency that the problem is being managed. Unfortunately, the systematic risk regulatory bodies that have been proposed or constituted to date are staffed by people from existing governmental bodies, and accordingly cannot be expected to provide the independence of viewpoint that is necessary for the effective functioning of these bodies. The financial crisis of 2008 revealed fundamental flaws in the world financial system’s ability to process information pertinent to risk. Few in industry or in government truly understood the serious threat to the stability of the system posed by the U.S. subprime mortgage securities and by the elaborate network of contracts, practices, and understandings that facilitated the packaging, marketing, and resale of these securities during the decade of the 2000s. Those who did identify the risks were not heeded. The consequence was the greatest financial disaster since the Great Depression of the 1930s - a perfect storm that descended on financial markets in 2008, nearly without warning, inflicting tens of trillions of dollars in financial losses; moreover, it still looms as a threat in the form of worries about the solvency of Greece and Spain, an enormous downturn in the U.S. commercial real estate market, and the potential for sovereign default by the American states of California, Illinois or New York. All good catastrophes generate proposals for reform, and the crisis of 2008 is no exception. Indeed, the volume of reform proposals is probably larger for this crisis than for any previous one, in part because of the severity of the downturn and in part because of the ready availability of media outlets in which these proposals can be vetted. One set of proposals, which has received considerable attention, and which is in the process of being implemented both in Europe and in the United States, is the creation of administrative bodies charged with the task of overseeing the stability of financial markets. It is not difficult to see the appeal of these proposals. They do not gore any oxen - creating a regulatory body charged only with overseeing financial stability does not threaten vested interests in the way, say, that a consumer financial protection agency does. They are cheap to implement, requiring only some appropriations for salary, staff, and office space. It appears that they can do little harm, and might do some good. By establishing these bodies, politicians can satisfy the single most important pressure facing them in this crisis - that they do something. But who should staff these agencies? This question, which at first glance may appear to be of secondary importance, is in fact central to their organization. An agency is only as good as the personnel who staff it, and if the people working in the agency do not have the right incentives to do the job right, the result could be worse than nothing. If people rely on these agencies accurately to identify threats to the world’s financial system, and they fail to perform this task, the results could be damaging, either because beneficial markets and institutions are stifled even though they do not pose a significant threat to financial stability, or because dangerous markets and institutions are allowed to continue in operation even though they do pose a threat. The complacent acceptance of flawed information is potentially worse than not having information in the first place. This paper examines the question of the staffing and design of financial stability bodies from the perspective of the theory of intellectual hazard. Part I outlines the concept of intellectual hazard as we have developed it in previous work. Part II applies that theory to analyze regulatory initiatives to create financial stability oversight bodies. We end with a brief conclusion.

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  The Wrongs of Unequal Treatment

  Sophia Moreau

  When exactly is it unfair for a government not to treat citizens as equals? And what is the nature of the wrong done to individuals who are not treated as equals? The main aim of this paper is to argue that there are a number of quite distinct ways in which individuals may be wronged by unequal treatment, and that these different wrongs are not reducible to a single unifying explanation. I then try to show that the approach to violations of equality rights in the Canadian Charter of Rights and Freedoms laid down by the Supreme Court of Canada in Law v. Canada fails to separate out these different wrongs, and I argue that this has rendered the test both conceptually problematic and less able to recognize as discriminatory certain instances in which the claimant has indeed suffered from unfair treatment. In conclusion, the paper explores several ways in which the Law approach might be modified, in order to rectify these problems.

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  International Responsibility

  Liam B. Murphy

  A theory of international responsibility finds its proper place in a comprehensive legal, political, and moral theory. There is no theory of international responsibility without a theory of domestic responsibility, and vice versa. Similarly, we cannot think sensibly about the domestic or international responsibilities of states without at the same time thinking about the domestic and international responsibilities of non-state actors of various kinds, including individuals. I will try to lay out some of the structure of the relations between these issues. Like James Crawford and Jeremy Watkins, I believe that a productive place to start is with the international responsibilities of states. That forces us immediately to think about the moral significance of states, which is a matter foundational for all of our connected issues. Needless to say, it is a big topic, and I will be able to do little more than indicate where my own sympathies lie.

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  Mortal Questions

  Thomas Nagel

  In Ethics: The Essential Writings, philosopher Gordon Marino skillfully presents an accessible, provocative anthology of both ancient and modern classics on matters moral. The philosophers represent 2,500 years of thought—from Plato, Kant, and Nietzsche to Alasdair MacIntyre, Susan Wolf, and Peter Singer—and cover a broad range of topics, from the timeless questions of justice, morality, and faith to the hot-button concerns of today, such as animal rights, our duties to the environment, and gender issues. Featuring an illuminating preamble, concise introductory essays on the giants of ethical theory, and incisive chapter headnotes to the modern offerings, this Modern Library edition is a perfect single-volume reference for students, teachers, and anyone eager to engage in reflection on ethical questions, including “What is the basis for our ethical views and judgments?”

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  Ruthlessness in Public Life

  Thomas Nagel

  The great modern crimes are public crimes. To a degree the same can be said of the past, but the growth of political power has introduced a scale of massacre and despoliation that makes the efforts of private criminals, pirates, and bandits seem truly modest. Public crimes are committed by individuals who play roles in political, military, and economic institutions. (Because religions are politically weak, crimes committed on their behalf are now rare.) Yet unless the offender has the originality of Hitler, Stalin, or Amin, the crimes don’t seem to be fully attributable to the individual himself. Famous political monsters have moral personalities large enough to transcend the boundaries of their public roles; they take on the full weight of their deeds as personal moral property. But they are exceptional. Not only are ordinary soldiers, executioners, secret policemen, and bombardiers morally encapsulated in their roles, but so are most secretaries of defense or state, and even many presidents and prime ministers. They act as officeholders or functionaries, and thereby as individuals they are insulated in a puzzling way from what they do: insulated both in their own view and in the view of most observers. Even if one Is in no doubt about the merits of the acts in question, the agents seem to have a slippery moral surface produced by their roles or offices. There is, I think, a problem about the moral effects of public roles and offices. Certainly they have a profound effect on the behavior of the individuals who fill them, an effect partly restrictive but significantly liberating. Sometimes they confer great power, but even where they do not, as in the case of an infantryman or police interrogator, they can produce a feeling of moral insulation that has strong attractions. The combination of special requirements and release from some of the usual restrictions, the ability to say that one is only following orders or doing one’s job or meeting one’s responsibilities, the sense that one is the agent of vast impersonal forces or the servant of institutions larger than any individual—all these ideas form a heady and sometimes corrupting brew. But this would not be so unless there were something to the special status of action in a role. If roles encourage illegitimate release from moral restraints it is because their moral effect has been distorted. It will help to understand the distortion if we consider another curiosity of current moral discourse about public life: the emphasis placed on those personal restrictions that complement the lack of official restraint—the other side of the coin of public responsibility and irresponsibility. Public figures are not supposed to use their power openly to enrich themselves and their families, or to obtain sexual favors. Such primitive indulgences are generally hidden or denied, and stress is laid on the personal probity and disinterest of public figures. This kind of personal detachment in the exercise of official functions is thought to guarantee their good moral standing, and it leaves them remarkably free in the public arena. No doubt private transgressions are widespread, but when they are inescapably exposed the penalty can be severe, for a delicate boundary of moral restraint that sets off the great body of public power and freedom has been breached. . . . The exchange seems fairly straightforward. The exercise of public power is to be liberated from certain constraints by the imposition of others, which are primarily personal. Because the office is supposedly shielded from the personal interests of the one who fills it, what he does in his official capacity seems to be depersonalized. This nourishes the illusion that personal morality does not apply to it with any force, and that it cannot be strictly assigned to his moral account. The office he occupies gets between him and his depersonalized acts. Among other things, such a picture disguises the fact that the exercise of power, in whatever role, is one of the most personal forms of individual self-expression, and a rich source of purely personal pleasure. The pleasure of power is not easily acknowledged, but it is one of the most primitive human feelings—probably one with infantile roots. Those who have had it for years sometimes realize its importance only when they have to retire. Despite their grave demeanor, impersonal diction, and limited physical expression, holders of public power are personally involved to an intense degree and probably enjoy it immensely. But whether or not it is consciously enjoyed, the exercise of power is a primary form of individual expression, not diminished but enhanced by the institutions and offices on which it depends. When we try, therefore, to say what is morally special about public roles and public action, we must concentrate on how they alter the demands on the individual. The actions are his, whether they consist of planning to obliterate a city or only firing in response to an order. So if the moral situation is different from the case where he acts in no official capacity, it must be because the requirements are different.

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  The Experience of the Holocaust Cases

  Burt Neuborne

  It has been almost 60 years since Nuremberg. While an international consensus now exists that tyrants who violate core provisions of customary international law by committing genocide and crimes against humanity should be tried before an international criminal tribunal, we have only just begun to think about how to deal with the aiders and abettors who make a tidy profit by turning the victims into slave labourers, or by selling guns, poison gas and barbed wire to the genocidal tyrants. While I do not believe that criminalizing economic support for tyrants is useful or appropriate unless the economic support is purposefully aimed at advancing a tyrant's genocidal enterprise, the law cannot simply ignore economic aiders and abettors. No tyrant has ever succeeded in enslaving or exterminating a victim population without the economic support of ordinary citizens who profit from the criminal enterprise. At a minimum, therefore, it is crucial to develop a transnational consensus that economic aiders and abettors of great evil hold their ill-gotten gains in constructive trust for the victims. The major obstacle to the evolution of such an international consensus is not substantive. Although most of us agree that economic aiders and abettors of genocide and crimes against humanity should not be permitted to enrich themselves unjustly at the expense of the victims, we lack a transnational procedural consensus on how to impose and enforce a civil liability designed to recapture the unjust profits for the benefit of the victims. Since 1996, I have been involved in litigating cases against Swiss banks and German corporations in United States courts seeking to recover unjust profits on behalf of Holocaust victims. The causes of action arose in Europe more than 50 years ago during the Nazi era. More than 80 per cent of the surviving victims reside outside the United States. The defendants are Swiss or German corporations. None of the acts underlying the claims took place in the United States. The cases are governed by Swiss, German or customary international law. Why should a U.S. judge be empowered to resolve them? Could there be a clearer example of aiding and abetting American judicial imperialism? After due consultation with counsel, I plead guilty, but offer a plea in mitigation. While a U.S. court provided only a second- or third-best forum, pending the emergence of credible procedures in alternative fora, the U.S. court was the only game in town.

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  Financial Reporting by Non-Profit Organizations: United States Developments

  Stanley Siegel

  Financial reporting for nonprofit organizations has undergone a sea change in the last 25 years. Pre-1980 fund accounting provided limited, and often obscure, insight into the financial position of nonprofits and the results of their operations. Recent pronouncements, primarily by the Financial Accounting Standards Board, have brought nonprofit organizations under the accounting rules applied to business enterprises. Nonprofits are now required—in conformity with Generally Accepted Accounting Principles (GAAP)—to prepare essentially the same three financial statements as those prepared by business enterprises: Statement of Financial Position, Statement of Activities, and Statement of Cash Flows. With limited exceptions, the same GAAP applies to nonprofits as to business enterprises, with the result that comparability, clarity and reliability of financial reporting have been substantially improved. Moreover, financial information about nonprofits has in recent years become much more publicly and readily available. A broad group of non-profits are required to file a federal income tax information return—Form 990—the contents of which are with limited exceptions public information. The Form 990s themselves, as well as analytical and summary data thereon, are now publicly available on a widely used website. However, the parallels between financial reporting of business enterprises and nonprofits should not be overstated. Thus, while the GAAP principles are parallel, the body of law—primarily federal law—that mandates audit, filing and public availability of the financial statements of a substantial body of the most important business enterprises does not apply to nonprofit organizations. And the federal tax reporting – informative and desirable as it is—lacks major components that assure reliability and relevance of business enterprise financial reporting, as will be noted below. Although these developments represent major steps forward in transparency and accountability with respect to nonprofits, the extension of the business enterprise GAAP accounting model to nonprofits, as well as its particular application, raises some difficult questions. Differences in the nature of the stakeholders of these differing enterprises, as well as fundamental differences in the objectives of their operations, suggest that meaningful accountability may require limitations or alterations of the accounting model for nonprofits. Among the approaches advocated in recent literature is a form of social accounting that suggests extending the boundaries of quantified financial reporting to reflect crucial inputs and outputs for nonprofits, which are not currently presented in their financial reports. Social accounting promises a broader-based, more inclusive and potentially more meaningful base for financial reporting of nonprofits. But its drawbacks and complexities – including issues of estimation, judgment variability, reliability and auditability – may outweigh its potential advantages. Neither is it clear whether broader social accounting for nonprofits would—even if feasible and practicable—be entirely desirable. Among the substantive issues that such reporting might pose are the possibilities of encouraging damaging competition among nonprofits, establishing incentives for “creative accounting” of a type recently practised by business enterprises, and posing disincentives for activities that show short-term social accounting “loss” despite their potential for longer-term social accounting benefit. Is it possible that in the world of nonprofit enterprises, social accounting may ask questions that might better be answered by commentary, rather than quantification? In evaluating financial reporting standards for nonprofits, it is essential first to clarify for whom, for what purposes, and with what objectives the financial reports are prepared. There appears to be consensus in the United States (though not necessarily in other nations) with respect to business enterprise financial reporting: it is intended primarily to provide financial information to investors and creditors for the purpose of allowing them to evaluate the amounts, timing and likelihood of future cash flows, with the object of informing their investment or credit decisions. No such clear consensus has yet developed concerning financial reporting standards for nonprofit enterprises. Early financial reporting practices by nonprofits reflected the absence of clear guidance, and proved of limited value to financial statement readers. More recent practices are clearer, more definitive, and more transparent, but fundamental questions concerning the nature of financial reporting by nonprofit enterprises remain.

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  Norms and the Sharing of Research Materials and Tacit Knowledge

  Katherine J. Strandburg

  As discussed in Wesley Cohen and John Walsh’s Chapter 1 in this volume, recent empirical studies have been documented that scientists experience increasing difficulty obtaining tangible research materials from other scientists, while they express fewer concerns than many had anticipated about do-it-yourself tools that can be mad in the laboratory, even when those tools are patented. In this Chapter I use a rational choice model of social norms to elucidate some factors that affect the likelihood that a research community will adopt a sharing norm. Based on those factors, I discuss some means by which sharing of tangible research materials can be encouraged. The analysis focuses attention on the costs to individual researchers of sharing research materials with others in a research community and suggest that sharing norms will be strengthened by initiatives aimed at (1) reducing sharing costs through standardization, (2) spreading sharing costs through central distribution, (3) providing rewards in proportion to the extent to which materials are shared, and (4) reducing the private payoffs of exclusivity. Though motivated by studies of sharing of research materials, the analysis also applies to sharing of extensive datasets and tacit knowledge. Scientists who invent research tools are part of a more general category of user innovators motivated by an intention to use, rather than sell, an innovative technology. Case studies suggest that informal collaboration and sharing among innovators – what Allen has called ‘collective invention’ and user innovation researchers often call ‘free revealing’ – is relatively common in communities of user innovators. While research tool sharing norms are illuminated by the user innovation framework, the instability of sharing norms for research materials also provides a cautionary not regarding the potential for collaborative user innovation in communities of competitors.

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  Ius gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature

  Jeremy Waldron

  This chapter takes up the fundamental question of the place of practice in the theoretical concepts of the law of nations and natural law. It explores the puzzle of how the normative code of natural law, which Gentili and his predecessors believed to be ascertained by human reason, could also be derived from the kind of empirical material concerning practice that Gentili uses to demonstrate that a rule is part of the law of nations. It argues that the confident separation of reason and normativity from empirics and assessments of actual practice in legal theory is misguided, and that Gentili's imbrication of the two sides of this dichotomy is well-grounded. Pure moral thought may be mere ‘untutored nature’, made better by absorbing insights from practice and historical experience. And pure empirical study of practice as the basis for positive law is not sufficient when practice is not uniform: choices must be made about which (if any) set of competing practices is indicative of law, and these choices are made partly through use of criteria of morality and justice, in a kind of reflective equilibrium between theory and practice. Gentili's views on these matters are not formulated with complete clarity or consistency, but his work overall is suggestive of an approach that is illuminating also for contemporary international law.

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  Legal Pluralism and the Contrast Between Hart's Jurisprudence and Fuller's

  Jeremy Waldron

  The exchange between Lon Fuller and HLA Hart, published in the Harvard Law Review in 1958, covered a whole array of questions in general jurisprudence. Yet there were one or two issues that were salient then or have become salient in legal theory since 1958 that they barely touched on. One is the topic of legal pluralism, and that is my topic in this chapter. I think it is fair to say that there is nothing whatsoever on this topic in the Hart-Fuller exchange—nor do modern debates about legal pluralism appear to be part of the legacy of the Hart-Fuller debate. So much is this so that some jurists have suggested that the Hart-Fuller debate actually skewed the agenda for jurisprudence in unfortunate ways, which we are only now beginning to correct, and that recent emphasis on legal pluralism is part of that process. However, I have no intention of scolding Hart and Fuller for failing to address legal pluralism in 1958. It would be churlish to do so, given the range of topics they did address. But it is interesting that they neglected this topic, and it tells us something perhaps about blind spots in both their jurisprudence. So in what follows I want to look at various missed opportunities (for addressing this topic) from the positivist perspective that Hart’s work represents and from the various perspectives that Fuller’s work represents—the ‘rule of law’ perspective and the anti-positivist position. I am also going to speculate a little about what Hart’s and Fuller’s attitudes to legal pluralism might be expected to be, in light of the positions they took up in their subsequent work. I suspect that most legal theorists have the following view. They assume that HLA Hart and Lon Fuller would be divided on the question of legal pluralism. They assume that Hart, like other legal positivists, would tend to favour a strongly state-centric view of law, leaving little room for genuine legal pluralism. And they assume that Fuller would be much more sympathetic to legal pluralism, partly on account of his anti-positivist commitments and partly on account of some things he said about customary law and about the diversity of legal systems, not in the 1958 piece but in The Morality of Law and in some of his later writings. I shall try to show that on both sides this view is a little simplistic. I do not mean that Hart was a legal pluralist and Fuller was not. But I mean first that, on the Hart side, we need to distinguish between currents in legal positivism that favour legal pluralism (and there are some) and currents in legal positivism that tend to oppose it; we need to understand how the latter currents are permitted to flow through the distinctive channels of the legal theory that Hart set out in his Holmes Lecture and in The Concept of Law; and we need to understand the various ways in which the former currents are blocked. And I mean secondly, on the Fuller side, that we need to understand the pressures put on the idea of legal pluralism by Fuller’s ‘inner morality of law’ and the ways in which this might militate in favour of a monistic rather than a pluralistic legal/political system.

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  Questions About the Reasonable Accommodation of Minorities

  Jeremy Waldron

  The furore following the lecture by the Archbishop of Canterbury in early 2008—where Dr Rowan Williams discussed the prospect of some limited form of Shari’a being introduced into Britain—reminds us that the accommodation of minorities is seldom an uncontroversial or straightforward subject. The UK debate quickly degenerated into a heated and polarized discussion that, with few exceptions, neglected to undertake a constructive analysis of the underlying issues and policy concerns. In this brief essay I hope at least to partly redress that shortcoming by illuminating some key questions that a modern liberal state confronts in legally accommodating the religious and cultural claims of minority groups. The title of this essay refers to the ‘reasonable accommodation of minorities’. I take this to mean accommodation within a modern legal system of the norms and requirements of their culture or religion or of the law associated with their culture or religion or associated elsewhere with a political community of which they and their ancestors were once a part. I shall assume that the accommodations occurs within the framework of a comprehensive system of law in a modern democratic state. Among other things, ‘accommodation’ might include (i) exemptions from generally applicable prohibitions or requirements to permit actions (or omissions) required by minority norms but presently prohibited by general law, or (ii) giving legal effect to transactions (such as certain types of marriage or property transactions) structured and controlled by norms other than those used to structure and control similar transaction in the general system of law. (An example of (ii) might be the introduction and recognition of marriage as defined by Shari’a law within the general framework of British law or Israeli law of the law of Ontario.) I assume that ‘accommodation’ does not include devolution of government, in a sense that would allow a minority community to determine, for example, (iii) the imposition of punishments for crimes that were more severe than, or different in character from, the punishments imposed by the general legal system (amputation for theft, for example). Possibly accommodations of type (i) might have something in common with accommodations of type (iii)—for example, allowing minority groups freedom from constraints on corporal punishment imposed generally on parents. But the idea of devolution and regional autonomy, with different legal systems (what the Archbishop of Canterbury in his Shari’a Lecture called ‘parallel jurisdictions’), is in principle separable from the idea of accommodation within the framework of a single overarching legal system associated—importantly here—with a single state in control of the legitimate means of coercion. So I shall not discuss accommodations of type (iii).