Faculty Chapters

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  Presidential Nominations

  Richard H. Pildes and Frances Lee

  The risks of political extremism are particularly great if a politically extreme figure can capture the presidency, with all its attendant actual and rhetorical powers. For the first 170 or so years of American history, this risk was mitigated by the need for party nominees to gain the support of elected party figures at all levels of government throughout the country. But with the shift in the 1970s to the system of direct primary elections for choosing party nominees, we believe the risk of more demagogic, extreme figures capturing the nomination of one or both parties—and hence the presidency—has increased. Given the US commitment to choosing nominees through direct primaries, however, we offer several potential means of working within the existing system to reduce the risk of more extremist candidates capturing a party’s nomination. We also offer suggestions for how to improve the primary debate process. Primary debates should play a significant role in informing party voters of the quality and policy positions of various candidates. Especially in large primary fields, which are increasingly common, these debates should help voters identify important distinctions among candidates within the party. We believe there are numerous ways of improving the primary debate process to enable it to play that role more effectively. The second part of this chapter provides those recommendations and the justifications for them.

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  Corporate Purpose: The US Discussion and the Restatement of the Law of Corporate Governance

  Edward B. Rock

  The American Law Institute’s Restatement of Corporate Governance stands in a complex relationship with the current debate over ‘corporate purpose’. On the one hand, against those who would impose an obligation on corporations to adopt a legally enforceable corporate purpose that gives weight to non-shareholder interests even when those interests diverge from shareholder interests, the Restatement makes clear that this is not the rule either in the traditional common law jurisdictions like Delaware or in the states that rejected Delaware’s shareholder primacy by adopting ‘constituency’ statutes. On the other hand, against those who would impose upon directors a duty to maximize stock price, the Restatement makes clear that directors’ discretion is far broader than any such maxim would permit, a discretion that permits directors to take seriously the interests of all stakeholders as they work to promote the value of the corporation.

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  Globalising the Indigenous: The Making of International Human Rights From Below

  César Rodríguez-Garavito

  The human rights field finds itself at a critical juncture. In addition to facing a formidable combination of challenges—the climate emergency, resilient populist-authoritarian governments, the impact of a global pandemic, rising socioeconomic inequalities, and polarising and invasive digital technologies—human rights have come under increasing scrutiny from scholars who view the current era as the ‘end times’ of the movement. Although critiques come from very different angles—from conservative social thought to postmodern critical legal studies—a distinctively progressive critique of human rights has been developed by some of the most influential contributors to this debate. According to this line of argument, the simultaneous global expansion of neoliberalism and the rise of international human rights over the last five decades is not a historical coincidence. In this view, by focusing on civil and political rights rather than on socioeconomic rights and rising inequality, human rights actors have provided political and legal ammunition to neoliberal capitalism. Given this diagnosis, critics tend to see little role for human rights in twenty-first-century progressive theory and politics. A striking feature of this line of criticism is that it is based on a highly limited view of the actual practice of human rights. It is a perspective whose eyes are directed largely at the most visible actors in the Global North. For Hopgood, for instance, ‘Human Rights are a New York–Geneva–London-centered ideology focused on international law, criminal justice, and institutions of global governance. Human Rights are a product of the 1%. Moyn’s criticisms are almost invariably focused on international non-governmental organisations (INGOs) such as Human Rights Watch, as if they were a proxy for the movement writ large. Therefore, paradoxically, the critics adopt a North-centric view of the field that is akin to that of the staunchest defenders of the traditional approach to human rights advocacy. This is the approach taken by some of those INGOs and other human rights actors that continue to operate along the lines of the intellectual, organisational and strategic paradigm of the second half of the twentieth century, which privileged the role of North-based NGOs in naming and shaming governments (mostly in the Global South) before receptive audiences (mostly in the Global North) in order to pressure the former to comply with international human rights norms. For defenders of this paradigm, naming and shaming is ‘still the human rights movement’s best weapon’, regardless of the facts that today’s populist authoritarian leaders are both shameless and eager to be named and that the world is undergoing epochal geopolitical, technological, ecological and economic transformations that render the traditional paradigm increasingly ineffective. Critics like Hopgood are right to call out persistent inequalities within the movement—for instance, between Northern versus Southern organisations, professional NGOs versus grassroots movements, white-led versus non-white-led organisations. However, the practice of the human rights movement is considerably more heterogeneous, dynamic and contested than the views of both critics and defenders of the status quo would suggest. Documenting and engaging with the everyday life of human rights requires broadening the field of vision well beyond Geneva, London or New York. This, in turn, calls for two conceptual and methodological moves. First, it entails tracking how the international standards developed in those sites are translated, implemented, indigenised, contested and even transformed at the national and local levels. Second, it involves looking into the active role of subaltern subjects, from racially oppressed communities to impoverished classes, women, undocumented migrants, indigenous peoples and other actors that are lumped together as ‘victims’ in the traditional view of rights. This expanded view creates analytical and empirical space to capture the myriad ways in which subaltern actors not only adopt or contest, but also often transform, create and re-export new human rights norms and frames that challenge not only the traditional paradigm of international human rights, but also the rules of neoliberal globalisation and capitalism themselves.

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  Globalizing the Indigenous: The Making of International Human Rights from Below

  César Rodríguez-Garavito

  In this chapter, I propose such an enlargement of the field of perception as a means to contribute to a more empirically accurate and strategically useful view of the human rights field. Rather than a homogeneous project, I understand the human rights field as an ecosystem for collaboration, contestation, synergies and competition among multiple political projects – from the expansion of neoliberal capitalism to anti-capitalist indigenous peoples ’ struggles, to the movement for accountability for crimes against humanity, to class-based mobilisation for social justice, to the youth movement for climate rights and many others. While they all use international human rights as one of their master frames, they do so in a selective and proactive way: they adopt, adapt, prioritise, contest, localise and globalise different pieces of the normative human rights umbrella, thus helping enforce and transform the master frame in equal measure.

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  Introduction

  César Rodríguez-Garavito

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  More-Than-Human Rights: Law, Science, and Storytelling Beyond Anthropocentrism

  César Rodríguez-Garavito

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  Reflections on the ‘A’ Word

  H. David Rosenbloom

  A BIT arbitration is much more elaborate, extensive, and costly than a MAP arbitration. A BIT arbitration of a tax issue is rarely heard by arbitrators who have more than passing knowledge of tax laws. ‘Fair and Equitable Treatment’, which is the core standard of BIT arbitration, is not a norm usually found in the tax laws and, insofar as a BIT is concerned, is not confined to tax disputes. It would therefore seem preferable to favour MAP arbitration over BIT arbitration as means of resolving tax disputes. While the MAP procedure is designed to address issues arising under a tax treaty, primarily issues of double international taxation, it might be possible to broaden the scope of MAP and MAP arbitration to encompass the sorts of tax issues that might come before an arbitral panel in a BIT arbitration. The ‘Fair and Equitable’ standard is probably not the right one for this purpose because it so vague and unenlightening, but something along the lines of ‘divergence from international standards’ might be appropriate and administrable. The benefits of channelling tax disputes away from BITs and into the tax treaties would be substantial. Gains in efficiency and cost would be enormous. The disputes would be considered by persons with substantial experience and expertise in tax matters. Resolution of disputes would be expedited. And yet nations could continue to maintain that investors have a measure of protection against arbitrary application of their tax laws.

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  The Seduction of Quantification Rebuffed? The Curious Failure by the CESCR to Engage Water and Sanitation Data

  Margaret L. Satterthwaite

  A decade later, and in a datafied but increasingly ‘post-truth’ world, it seems useful to ask: have the concerns so eloquently articulated by scholars such as Sally Merry come to fruition in the human rights sphere? Has ‘“indicator culture” – marked by technical rationality, a pragmatic approach to measurement, and the magic of numbers’ – taken root in the human rights field? More specifically, has the monitoring of rights become a system of technocratic audit? To answer these questions, this chapter focuses on the use of indicators to measure fulfilment of the rights to water and sanitation, two of the rights arguably most amenable to quantification. Using a dataset designed for this purpose, the chapter examines the use of indicators, benchmarks and quantitative data concerning water and sanitation by the UN Committee on Economic, Social and Cultural Rights (CESCR, the Committee), the body charged with monitoring compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR, the Covenant). The chapter also draws on a second dataset assembled for this purpose that assesses the use by human rights NGOs of data and indicators in the context of advocacy to advance the rights to water and sanitation. What these data reveal is surprising: despite the relative ease of quantification and the broad use of rights-relevant data in the water and sanitation sector, the UN human rights experts charged with monitoring compliance with the ICESCR are not engaging in data-inflected assessments of these rights in a systematic way. Instead, they sporadically refer to data but do not deploy it or engage in datafied discussions that could simplify the tracking of progress or retrogression over time. The final section of this chapter explores some reasons behind this seeming rejection of the seductions of quantification. The chapter concludes that the analyses advanced by Merry in the past decade nonetheless retain their relevance, and should be brought to bear on the more recent embrace of Big Data in the broader human rights field.

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  The Seductions of Quantification Rebuffed? The Curious Failure by the CESCR to Engage Water and Sanitation Data

  Margaret L. Satterthwaite

  Some years ago, scholars noticed that the human rights field was turning towards metrics and quantification, seeking tools that might move the rights endeavor beyond its reliance on stories of suffering and towards the production of knowledge inflected by science. Chief among the tools practitioners began to embrace were human rights indicators, here defined as metrics calibrated to make empirical measurements related to specific norms. Rights indicators were said to be useful in understanding the scope, dynamics and relationships among human rights violations through population-based, quantitative and systematic qualitative monitoring methods. Indicators were also seen to allow advocates to access and deploy the political and cultural force of numbers in a world where what is measured is what counts. They also presented the possibility of building human rights concerns into the very fabric of development, humanitarian practice and even security measures undertaken by states, inter-governmental organisations and other powerful actors. As Sally Merry explained in 2011, indicators were seen as ‘objective’, capable of ‘set[ting] clearer standards for compliance with a convention’ and more concrete goals for advocates. As Rosga and I explained in 2009, ‘the turn toward mechanics of measurement and notions of scientific objectivity may appear to offer a kind of authority that [human rights] bodies have never been able to achieve’ in the eyes of mistrusting governments. While this embrace of quantification was celebrated as an advance by many, critics—with Merry prominent among them—also registered strong concerns. Some of the negative impacts imputed to the use of indicators stemmed from risks inherent in quantitative ways of knowing. For example, while there were myriad methods for measuring—as well as a plethora of data on—some issues, in other places, there was a dearth of data on issues central to human rights. Further, the enduring and irresolvable problem of venal political manipulation of data was acknowledged, as well as the predatory or abusive methods sometimes used to gather data. Finally, the slippage between the concept one intended to measure and the choice of often-distant proxies was common but too often overlooked. Other unintended consequences related to the fact that the indicators phenomenon is an instance of power-through-knowledge, or ‘expert rule’, that empowered certain kinds of professional human rights expertise shared among an identifiable epistemic community while ousting others. This empowerment sometimes came at the expense of grassroots, ‘local’ or embedded forms of knowledge. The ‘deployment of statistical measures tends to replace political debate with technical expertise’, Merry wrote in 2011. In a piece published the same year, I explored similar dynamics in the use of rights-based indicators in crisis settings, concluding that indicators ended to ‘render technical’ very political debates over human rights and accountability. Merry wrote in 2016 that the ‘translation’ of rights into numbers ‘shifts human rights from a legal discourse with a broad and flexible vision of justice and rights to a technocratic one of economics and management’. This vison—which assumes the predictability of, control over and therefore possibility of rational management of social and political change—was a model for understanding the world that was seen as particularly ill-suited to human rights. The danger that states would seek to ‘game’ indicators instead of using them to measure rights enjoyment was also raised, suggesting an ever-increasing gap between the right being monitored and the metrics used to do so. This gap was especially problematic in relation to norms that had not yet been fully articulated by authoritative human rights bodies. These issues and others were explored in Merry’s ethnographic accounts of indicator-creation, as well as in my work, and the work of Merry’s collaborators, colleagues and those her work has influenced. A decade later, and in a datafied but increasingly ‘post-truth’ world, it seems useful to ask: have the concerns so eloquently articulated by scholars such as Sally Merry come to fruition in the human rights sphere? Has ‘“indicator culture”—marked by technical rationality, a pragmatic approach to measurement, and the magic of numbers’—taken root in the human rights field? More specifically, has the monitoring of rights become a system of technocratic audit? To answer these questions, this chapter focuses on the use of indicators to measure fulfilment of the rights to water and sanitation, two of the rights arguably most amenable to quantification. Using a dataset designed for this purpose, the chapter examines the use of indicators, benchmarks and quantitative data concerning water and sanitation by the UN Committee on Economic, Social and Cultural Rights (CESCR, the Committee), the body charged with monitoring compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR, the Covenant). The chapter also draws on a second dataset assembled for this purpose that assesses the use by human rights NGOs of data and indicators in the context of advocacy to advance the rights to water and sanitation. What these data reveal is surprising: despite the relative ease of quantification and the broad use of rights-relevant data in the water and sanitation sector, the UN human rights experts charged with monitoring compliance with the ICESCR are not engaging in data-inflected assessments of these rights in a systematic way. Instead, they sporadically refer to data but do not deploy it or engage in datafied discussions that could simplify the tracking of progress or retrogression over time. The final section of this chapter explores some reasons behind this seeming rejection of the seductions of quantification. The chapter concludes that the analyses advanced by Merry in the past decade nonetheless retain their relevance, and should be brought to bear on the more recent embrace of Big Data in the broader human rights field.

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  Quantitative Methods in Advocacy-Oriented Human Rights Research

  Margaret L. Satterthwaite and Daniel Kacinski

  Applied human rights researchers have turned to quantitative methods in recent years to systematise their knowledge and help answer questions about the scope, intensity, characteristics, responsibility for, and causes of human rights violations and their solutions. Using data of widely varying type and provenance, researchers have adopted a range of methods with different capabilities for a spectrum of purposes. These methods not only vary in their approach and capacity, but also relate to international human rights law in different ways. This chapter provides examples of how quantitative methods are used by researchers engaged in advocacy-oriented, real-world human rights work. It concludes that quantitative methods hold real promise for human rights research, but they also pose risks. In many human rights contexts, data problems - from missing and biased data to hidden or falsified data - are insurmountable. Yet in other cases, it is possible to use well-chosen methods, with great care. When they can be used ethically, quantitative methods should be considered alongside qualitative methods and mixed methods models. Only when the objectives, data and methods match, and when the perils can be obviated or limited to an acceptable level, should practitioners choose quantitative methods.

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  Quantitative Methods in Advocacy-Oriented Human Rights Research

  Margaret L. Satterthwaite and Daniel Kacinski

  Applied human rights researchers have turned to quantitative methods in recent years to systematise their knowledge and help answer questions about the scope, intensity, characteristics, responsibility for, and causes of human rights violations and their solutions. Using data of widely varying type and provenance, researchers have adopted a range of methods with different capabilities for a spectrum of purposes. These methods not only vary in their approach and capacity, but also relate to international human rights law in different ways. This chapter provides examples of how quantitative methods are used by researchers engaged in advocacy-oriented, real-world human rights work. It concludes that quantitative methods hold real promise for human rights research, but they also pose risks. In many human rights contexts, data problems - from missing and biased data to hidden or falsified data - are insurmountable. Yet in other cases, it is possible to use well-chosen methods, with great care. When they can be used ethically, quantitative methods should be considered alongside qualitative methods and mixed methods models. Only when the objectives, data and methods match, and when the perils can be obviated or limited to an acceptable level, should practitioners choose quantitative methods.

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  State Farm Mutual Automobile Insurance Co v Campbell (2003): The Misguided Legacy of Proportionality

  Catherine M. Sharkey

  State Farm v Campbell stands as the ‘high water mark’ of constitutional excessiveness review of punitive damages in the United States, where the US Supreme Court has held that the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punitive damages on a tortfeasor based on the notion that: Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose. In Campbell, the Court overturned a US$145m punitive damages verdict against an insurance company that was assessed US$1m in compensatory damages for bad-faith failure to settle an automobile tort claim of one of its insureds. In so doing, the Court reasoned that ‘few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy [constitutional] due process’. Moreover, according to the Court, ‘an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety’. With these dicta in Campbell, the Court planted the seeds of a particular type of ‘proportionality’ jurisprudence of punitive damages, focused narrowly on the ratio of punitive-to-compensatory damages. The effect on lower state and federal courts can be seen in their tendencies to ‘race to ratios’ of punitive to compensatory damages in their analyses of the validity of punitive damages awards. And the impact on legal scholarship is likewise evident in the rash of articles highlighting the quasi-criminal aspects of punitive damages excessiveness review. My central claim is that this particular brand of ‘proportionality jurisprudence’, which stems from an over-reading, if not misreading, of Campbell, has had a profound impact. It stands as Campbell’s misguided legacy. Regarding the proportionality-fueled ratio analysis, nowhere does the Court explain why the amount of compensatory damages should be an appropriate comparator for the excessiveness of the amount of punitive damages. Justice Kennedy (author of the Campbell majority opinion) himself evinced deep scepticism (in an earlier case): ‘The Constitution identifies no particular multiplier of compensatory damages as an acceptable limit for punitive awards; it does not concern itself with dollar amounts, ratios, or the quirks of juries in specific jurisdictions’. The relationship that should matter is between size of the punitive damages award and the legitimate objectives of punitive damages (punishment and deterrence) – which do not relate in any systematic way to the amount of compensatory damages. That critical point is obscured in the Campbell Court’s pronouncement that ‘Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goal of deterrence and retribution, than awards with ratios in [the] range of 500 to 1’. The Supreme Court recognises here – as it has throughout its trilogy of punitive damages cases concerning constitutional excessiveness – that punitive damages is a state law remedy; and the Court is establishing ‘guidelines’ for reviewing excessiveness, not mandates to override legitimate state interests. This federalism principle – in this case, respect for the legitimate state law purposes of punitive damages – should mitigate the effects of the Campbell Court’s dicta that might otherwise be read as establishing a presumption (if not a bright-line rule) in favour of punitive awards with single-digit punitive-to-compensatory ratios. But few courts pause to consider the threshold question of why (ie, the purposes for which) punitive damages have been awarded at all, before plunging into their ratio analyses. To the extent courts and scholars do pause to engage the purposes of punitive damages, Campbell’s ‘proportionality’ message – drawn from the language of criminal law, where punishments are to be proportional to the crime – steers them towards the retributive punishment underpinnings of punitive damages, to the exclusion of the (non-retributive) deterrence purposes. Thus ‘blinded by proportionality’, courts and scholars – both in the United States and abroad – fail to recognise an alternative (but at least as crucial) non-retributive deterrence framework, centered on the internalisation of widespread harms.

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  Against Conventionalism

  Jeremy Waldron

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  Basic and Relational Equality

  Jeremy Waldron

  Theorists of ‘relational equality’ have defined and elaborated an attractive ideal, which they present as an alternative understanding of equality, superior to distribution-focused theories such as luck-egalitarianism. In my book One Another’s Equals, I presented an understanding of what I called ‘basic equality’, which I also differentiated from distributive theories such as luck-egalitarianism. Does this mean basic equality and relational equality are the same? No. To mangle Euclid, things which are different from the same thing (distributive equality) are not necessarily equal to one another. This chapter explores the differences between basic and relational equality, and shows that ideals like relational equality, important though they are as social ideals, still require basic equality as a foundation.

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  On Duty

  Jeremy Waldron

  This chapter suggests an alternative way of understanding duty. Usually ‘duty’ is applied to some specific action strongly prescribed for an agent in some set of circumstances. In the alternative understanding proposed here, ‘duty’ is applied in the first instance to a relation between a person, P, and a situation, S. One talks of P’s duty when it is the responsibility of P to be alert to and, if need be, to do something about various possibilities inherent in S. One says: ‘S is P’s responsibility’ or—in the best-known phrasing—‘P has a duty of care in regard to S.’ The chapter explores this situational understanding to see what it tells us about the sort of thing a duty is: how it is structured, what counts as its determinate specification, and how it is related to cognate moral and legal ideas such as reason, ought, obligation, liability, and responsibility.

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  Rights as the Domain of Weak-Form Review

  Jeremy Waldron

  Mark Tushnet has shown great interest in the contrast between weak-form and strong-form judicial review of legislation. In a system of weak-form review, courts scrutinize legislation for its conformity to a Bill of Rights, but courts do not have final power to strike down legislation that is incompatible with the Bill of Rights. They may have power only to issue a Declaration of Incompatibility or they may be constrained, as in Canada, by a “notwithstanding” clause. This chapter examines the domain of weak-form judicial review of legislation. We are familiar with its operation in cases involving possible violations of rights. But constitutional objections to legislation may also be made on structural grounds, such as separation of powers or federalism requirements. Are these instances of judicial review—when they happen—also subject to a weak-form/strong-form distinction? The chapter argues that they are not—that weak-form structural review is more or less unheard of—and it examines the reasons for this discrepancy. Is it because (as Tushnet has argued) rights-based considerations are less determinate? Or is it because structural issues need determinate and timely resolution that weak-form judicial responses cannot provide?

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  Shall the Justice of the Whole Earth Not Do Justice?: The Revolutionary Copernican Moment in the Relationship of God's Law, Humanity and Justice

  Joseph H. H. Weiler

  What are we to do when one is confronted with an order, or obligation from a higher authority which conflicts with our ethical and moral commitments? The paradigmatic illustration of such is a divine command where the order of God conflicts with one’s sense of justice. Taking the Biblical story of Sodom and Gomorrah and the confrontation between Abraham and the Almighty, this chapter argues that this incident constitutes the Copernican Revolution in understanding this dilemma.

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  Everything Must Change So That Everything Can Remain the Same': The CJEU and the Temporal Dissonance of Europe 'Then' and 'Now'

  Joseph H. H. Weiler and Andreas P. Müller

  The EEA Agreement extends the four freedoms (persons, goods, services and capital) to Iceland, Liechtenstein and Norway. It provides for equal conditions of competition and abolishes discrimination on grounds of nationality. The EFTA Court, celebrating its 30th anniversary in 2024, has jurisdiction over parties to the Agreement. This jurisdiction corresponds to that of the Court of Justice of the European Union over EU Member States in matters of EEA law. This collection of essays, written by members of the Court and external experts, reviews the successes and shortcomings of the Court, its interface with EU law, and its future development.

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  Poverty and Civil and Political Rights

  Philip G. Alston

  Development and human rights frameworks often exclusively address the situation of people living in poverty as issues of material deprivation and a lack of resources, focusing solutions on welfare support, specific goods and services, better targeted development assistance, or the promotion of economic and social rights. As a result, neither the diagnosis of situations, nor the resulting policy recommendations, are tailored to address the distinctive ways in which people living in poverty are affected by police brutality, gender-based sexual violence, property theft, pre-trial detention, criminalizing homelessness, or electoral fraud and manipulation. This chapter argues that many civil and political rights violations are rooted in poverty, and that only by addressing that aspect can sustainable and adequate solutions be found. It delineates the disproportionate and different impact of civil and political rights violations on the poor, and the lack of focus on causal and contextual factors leads to the neglect of vital dimensions of the challenge.

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  Corporate Sanctions: Structuring Corporate Liability and Nontrial Resolutions to Deter Corruption

  Jennifer H. Arlen

  Corruption causes enormous harm to countries around the world. It nevertheless is prevalent because it benefits both parties to the corrupt transaction. Corrupt officials have gotten rich through corruption. Corporations benefit from the government largess they receive as a result; their employees profit when their corrupt actions to benefit their firms lead the firm to give them a bonus, a promotion, or enhances their job security. To safeguard their citizens and their economies, countries must deter corruption by companies. Currently, most countries are failing to do so effectively. First, most countries enable companies to profit from corruption by adopting overly restrictive rules governing corporate criminal liability, overly restrictive rules on non-trial resolutions, and inadequately funding corporate enforcement authorities. Sanctions imposed on companies also often are too low to ensure that companies do not profit from crime. Second, countries currently fail to effectively deter public officials and individual bribe payers through the threat of prosecution because their enforcement authorities rarely detect and sanction corporate misconduct. The resulting risk of sanction often is too low to be material, leading wrongdoers to ignore it altogether. To deter effectively, countries must ensure that companies do not profit from corruption and that individual bribe payers and recipients face a salient threat of being detected and convicted if they pay or accept bribes; the sanction must be sufficient to ensure they do not expect to benefit from corruption. To create this threat, countries must increase the funding and other resources provided to government investigators and enforcement authorities. In addition, they must hold companies criminally liable for all organizational misconduct by their employees, and adopt rules governing non-trial corporate criminal resolutions structured to induce them to detect and self-report misconduct, to fully investigate, and to fully cooperate by providing authorities evidence about misconduct and those responsible for it. Enforcement authorities also must be given authority to impose a monitor on companies whose senior officers and board have evidenced insufficient commitment to deterring misconduct. To detect reliably, countries also need to adopt appropriate whistleblower protection law and bounty provisions. Finally, they need to properly incentivize enforcement officials to pursue the individual wrongdoers responsible for the misconduct. This chapter explains why corporate liability needs to have these features, identifies needed reforms, and discusses corporate sanctions.

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  Evolution of Director Oversight Duties and Liability Under Caremark: Using Enhanced Information-Acquisition Duties in the Public Interest

  Jennifer H. Arlen

  Delaware law imposes four duties on directors to deter misconduct under the Caremark doctrine: (1) the duty not to knowingly commit misconduct or allow it to continue; (2) the duty to establish a system to deter, detect, and inform the board about misconduct; (3) the duty to assert effective oversight over the system; and (4) the duty to exercise effective oversight over detected misconduct. The effectiveness of the first duty, however, depends on whether the other three are effective in inducing the firm to detect and inform directors about detected misconduct, and on whether these duties are imposed to protect society as well as the firm. This chapter shows that Caremark’s traditional formulation is not effective because it gives directors full discretion to adopt systems that do not reliably detect misconduct or ensure they are informed about it. Recently, Delaware has imposed heightened duties on directors to ensure that they are informed about, and respond appropriately to, detected misconduct that is material to the firm or society. This expansion has the potential to enhance social welfare by inducing directors to deter corporate misconduct even when it benefits the firm.

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  The Sensibility of ‘Expressive Genericity’ and the Rise (and Potential Fall) of Rogers v. Grimaldi in American Trademark Law

  Barton C. Beebe

  This essay briefly considers the impact on American trademark law and commentary of the cultural sensibility represented by Rochelle Dreyfuss’s classic article Expressive Genericity: Trademarks as Language in the Pepsi Generation. The essay focuses in particular on how this cultural sensibility has supported the rise in American courts of the Rogers v. Grimaldi test for whether unauthorized expressive uses of trademarks infringe trademark rights.

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  The Law’s Effects on Public Participation

  Vicki L. Been and Anika Singh Lemar

  Laws govern public participation in land use decision-making. Concerns about public participation also inform the substantive development of land use and zoning law. Legislators and courts cite the importance (or, sometimes, the dysfunction) of public participation when crafting and applying rules about spot zoning, contract zoning, exclusionary zoning, and other components of the law of land use and zoning. In short, public participation is shaped by law and the law is shaped by concerns about public participation. Much, however, is underexplored about the law in this realm, even as the practical implications of “local zoning [as] a fundamentally participatory process” are, today, the subject of heated debate. Changing public participation practices must take place in the shadow of legal requirements—or must explicitly engage in a program of law reform in order to change those requirements. This chapter will first describe the legal requirements that govern public participation in land use and zoning processes. Next, it will consider how those laws affect land use and zoning decisions. It will then use attempts to make public participation work in the COVID era to understand how existing laws can encourage or constrain reforms. The chapter concludes by considering broader efforts to reform public participation laws. Throughout, the chapter raises research questions that relate to the operation of current law and efforts to reform those laws.

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  Canon and Fireworks: Reliance in the Restatements of Contracts and Reliance on Them

  Richard R. W. Brooks

  Two related claims are principally advanced in this chapter. First is that the Restatements of Contracts has achieved the status of a canon on which contemporary legal practice and education has come to rely. This claim falls under the heading reliance on the Restatements. The second claim, falling under the heading reliance in the Restatements, asserts that traditional notions of contractual liability based on reliance have been overshadowed by the Restatements’ canonization of both its bargain theory of consideration and its statements of promissory estoppel. Overshadowed but not excluded, traditional notions of reliance as grounds for contract enforcement and recognition can be found throughout the Restatements. By highlighting these grounds the chapter aims to recover or, perhaps better, reveal the traditional and continuing presence of reliance in the American common law of contract liability.

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  Global Impact on Domestic Investment Landscape

  Deborah K. Burand

  This current and important book discusses the need for investment that directly addresses social, economic, and racial inequities. Written by practice leaders, this guide provides an understanding of the latest U.S. private and public investment strategies and offers legal tools and checklists created by lawyers and practitioners serving both investors and investees. Social impact investing generates a positive social and environmental impact on the underserved. To provide valuable guidance, this resource educates lawyers and other professionals on community stakeholders' needs and lawyers' roles in impact investment deals, while providing practice tips for a range of legal issues in developing and executing diverse investment strategies. Leading experts discuss the current moment's charge to stem the economic losses in communities and build new, equitable economic systems. Comprehensive and accessible, this book: explores international lessons and models; integrates a brief history of the CED movement and the rise of impact investing; discusses current CED and impact investing tools that utilize public-private partnerships; discusses the purpose and structure of Social Impact Bonds (SIBs); highlights state and local government policies to support directing capital to meet needs of underserved communities; addresses the importance of community-driven financing tools, the role of individual investors in shaping strong local communities, and the SEC's laws and regulations governing community capital raising; illuminates the importance of people-powered local interventions; describes strategies for community ownership that shift governance and ownership to low-income communities and communities of color; provides concrete recommendations to investors and their lawyers to accelerate transformative finance work; and more!