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  388 U.S. 1, Supreme Court of the United States, Richard Perry LOVING et ux., Appellants v. COMMONWEALTH OF VIRGINIA, No. 395

  Peggy C. Davis

  Argued April 10, 1967. Decided June 12, 1967. DAVIS , J. delivered the opinion of the Court. Appellants challenge a statutory scheme adopted by the Commonwealth of Virginia to prevent marriages between persons whom the Commonwealth assigns to different racial classifications. We conclude that the scheme cannot stand, for it violates principles expressed in our founding documents and definitively embraced when the Nation was reconstructed by constitutional amendment after Confederate secession and Civil War. More specifically, such a statute fails to respect the dignity and autonomy of free people, and it violates our obligation of equal protection and respect for every member of our society

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  Injunctive Relief in Patent Law Under TRIPS

  Graeme B. Dinwoodie and Rochelle C. Dreyfuss

  Traditionally, intellectual property’s right to exclude has implied that injunctive relief should always be available at the conclusion of a successful infringement action. However, in recent years that view has evolved. As discussed in Chapter 14, in the United States, the 2006 Supreme Court decision in eBay Inc. v. MercExchange imposed a four-part test requiring the plaintiff in a patent case seeking a permanent injunction to demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” While this standard appears to impose quite a restrictive test, several members of the court emphasized that even under this discretionary standard, injunctive relief should remain available in the vast majority of cases. Furthermore, Justice Kennedy wrote a concurring opinion delineating specific areas where such relief might be appropriately withheld. First, he suggested that the availability of injunctive relief may furnish firms that use patents primarily to obtain licensing fees (so-called patent assertion entities or PAEs) too much bargaining power in licensing negotiations and that since they are only interested in fees, monetary relief is usually sufficient to compensate them. Second, he stated that when a patent is “but a small component” of a larger product, the opportunity for holdups creates undue leverage. As a result, injunctive relief in such cases could undermine the public interest. Third, he argued, giving the example of business method patents, that injunctions may be withheld when the asserted patents are vague and of “suspect validity.” As the other chapters in this volume attest, many countries have now adopted a similar discretionary approach to the award of injunctive relief. The question we address in this chapter is whether that position is consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or the TRIPS Agreement). To be sure, the TRIPS Agreement is largely conceptual in character and the section addressing enforcement (Part III of TRIPS) is of a very general nature. However, the Agreement does require member states to give courts the authority to order parties to desist from infringement, it requires remedies to deter future infringements, it imposes national treatment and most-favored-nation (MFN) obligations, and it bars discrimination by field of technology. In addition, it cautions member states that protection exceeding its standards is allowable, but only if such a measure “does not contravene the provisions of [the] Agreement.” Thus, TRIPS also sets a ceiling on right-holder protection. Since empirical evidence on the effect of eBay in US patent litigation shows that its impact falls disproportionately on certain right holders (not surprisingly, PAEs in particular) and on specific industries, all of these TRIPS obligations are implicated. In this chapter, we first outline what we regard as the conceptual features of TRIPS. We then consider the individual provisions touching on enforcement and how they might be interpreted. Finally, we discuss specific applications of the discretionary approach and ask whether World Trade Organization (WTO) decision makers would find any of the outcomes incompatible with TRIPS obligations. Our analysis draws heavily on our book, A Neofederalist Vision of TRIPS.

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  From Parallel Play to Constructive Engagement: A Proposal for Plan B

  Rochelle C. Dreyfuss

  The international IP system has been highly successful at creating strong incentives to innovate. However, this regime is flawed since it does not encourage constructive engagement and cooperation that typify maturation. International IP law has paid little attention to developing approaches to cross-border interactions and the spill-over effects of national laws. Therefore, the establishment of alternative regimes—that this article calls 'Plans B'—for constructive engagement is necessary, since they must weigh the balance between proprietary exclusive rights and public interests and must permit widespread use of resources protected by private rights. Marrakesh VIP Treaty constitutes a valid template to which the Plan B could refers, since it facilitates local and transborder distribution of copyrighted materials in a format accessible to the visually impaired. However, there is also a great deal of limits in taking Marrakesh VIP Treaty as a template. Moreover, in relation to the production of vaccine during the COVID-19 pandemic, many countries viewed compulsory licensing as the way to ensure sufficient supplies. To be fully effective, the Plan B must include a regime for compulsory licensing and permit the transfer of what TRIPS calls undisclosed information. In terms of coordination, TRIPs or Marrakesh VIP Treaty's template are too difficult to adapt to the Plan B. A more modest approach may be more practical. Plan B should therefore focus narrowly on providing a structure for international engagement concerning the use of intellectual property during episodes of global crisis.

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  ISDS and Intellectual Property in 2020—Protecting Public Health in the Age of Pandemics

  Rochelle C. Dreyfuss

  Much as in 2019, intellectual property (IP) was not a major feature of the investor-state dispute settlement (ISDS) landscape in 2020. Some of the cases instituted earlier remained pending and new cases were filed, but there were no final awards directly related to IP. Unlike last year, however, the events of 2020 laid fertile ground for future investment disputes. Should these materialize, they will raise crucial questions regarding a state’s authority to protect public health in ways that have a deleterious impact on IP assets. That issue was at the heart of the cases that first drew attention to the consequences of considering IP an investment entitled to protection under international investment agreements (IIAs). In the two disputes decided on the merits, Philip Morris v Uruguay and Eli Lilly v Canada, the states won. However, the awards left many open issues on the scope of regulatory autonomy over IP rights. As I posited in last year’s Yearbook, the dearth of follow-on challenges suggested that both states and investors were reassessing their approach to exclusive rights in knowledge-based assets, at least when they affect public health. Right holders may have become reluctant to engage in disputes that would prompt states to negotiate new IIAs to better safeguard their regulatory authority. Moreover, states may have become wary of taking on the risks and costs associated with investor-state challenges to measures that impinge on IP rights. However, the pandemic that began in 2019 left many states with little choice but to step in. Information exchange was critical to contain the raging coronavirus and speed the development of diagnostics, treatments, and vaccines. Scientists needed access to data on SARS-CoV- 2, including all its variants, existing pharmaceuticals (to see whether they could be repositioned), diagnostics, vaccines, and manufacturing platforms (to determine whether they could be adapted), and research results of others working in the field. Because technologists predicted that multiple production facilities would be needed to satisfy global demand for medicines, diagnostic kits, and vaccines, as well as personal protective equipment, testing gear, ventilators, refrigeration units, vials, syringes, and the like, widespread dissemination of specifications, safety, and efficacy data, and manufacturing details was contemplated. To ensure safety and treat patients with ‘long COVID’ (symptoms that extend beyond the point of nominal recovery), it was also anticipated that there would be a continuing need to share data on variants, new treatments, and patients and their welfare. Much of this information was patented, claimed in patent applications, copyrighted, subject to data exclusivity regimes, or kept as trade secrets. To release the information, governments and scientific, international, and non-governmental organizations encouraged data sharing, private-public partnerships, patent pools, IP pledges, and voluntary transfers of technological information and finished products at low (or no) cost. However, not everyone was on board with this approach. Many pharmaceutical firms branded voluntary schemes ‘nonsense’: they had invested billions in coronavirus-related research and argued that it would be ‘dangerous’ to be stripped of exclusive rights in what they discovered. Moreover, some countries succumbed to vaccine nationalism and engaged in advance purchase and other financing schemes that deprived the rest of the world of a proportionate share in early supplies. The result was that many states enacted measures to limit IP rights as a way to ensure local access. Others expanded existing exceptions and limitations. Several members of the World Trade Organization (WTO) asked for a waiver of their obligations under the TRIPS Agreement for the duration of the pandemic—a move eventually endorsed by the US13 but opposed by many of the countries where research on COVID-19 was conducted. As of the date of this chapter (May 2021), the waiver question has not been resolved. But even if the WTO were to agree to waive TRIPS obligations, the decision would bind only the member states; it would not directly affect the private parties who own the relevant IP rights. Thus, the events of 2020 could raise difficult questions as to whether right holders can successfully challenge COVID-related state action under investment law. The pandemic will, in short, constitute a stress test. In this chapter, I conduct a thought experiment on how such suits might unfold. The first part describes how states sought or may seek to exercise control over the knowledge and products needed to protect public health during the global pandemic. The second considers the challenges that investors might lodge and identifies the places where safeguards protecting sovereign authority over healthcare may fall short.

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  Coming Apart: How Union Decline and Workplace Disintegration Imperil Democracy

  Cynthia Estlund

  This chapter explores the importance of intergroup solidarity in combatting ethnonationalist populism and in sustaining healthy forms of democratic contestation, and the distinctive capacity of trade unions to cultivate intergroup solidarity and elevate it from the workplace level up to the plane of national politics. That distinctive capacity stems in part from unions’ roots in the experience of shared work and the common interests and intergroup ties that can grow out of that experience, and in part from unions’ ability, and indeed their need, to link intergroup solidarity to economic self-interest. That is, unions can and must encourage workers to make common cause and to overcome racial and ethnic divisions in order to pursue shared economic interests.

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  Brief Remarks on the Applicability of the International Uniform Substantive Law Conventions in International Arbitration

  Franco Ferrari

  According to one commentator, in arbitration, choice of law plays a smaller role than might be expected from the large volume of scholarly writing on the subject. This fact, too, I believe suggests something about the law in general—substantial similarity in result reached by legal systems with quite different points of departure, and convergence in the international arena that seems to be helped along by the process of [arbitration]. In this author’s view, these assertions cannot be shared. Arbitrators are not the catalysts of convergence, as their awards do not have a modifying impact on the domestic law they apply. And the “substantial similarity in result reached by legal systems with quite different points of departure” is, if nothing else, overstated. “While such characterization may be accurate in some cases, [. . .] there are [many] cases where substantial differences exist with respect to possible competing laws”. To give just one example, although one that today is very relevant in practice, the success of a party’s claim that it be exempt from liability on the basis of economic impossibility, frustration of purpose of the contract or hardship caused by the Coronavirus pandemic and its consequences will depend on the applicable law or rules of law, because throughout the various legal systems there still is “a marked diversity in the recognition of [such] institutions”. Not only, the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) also addresses some of the foregoing issues, and it does so in a way that often differs from how these issues are dealt with in domestic legal systems.

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  The Interplay Between the Post-award and the Pre-award Regimes with Respect to a Tribunal’s Treatment of Evidentiary Issues

  Franco Ferrari and Friedrich Rosenfeld

  It is a truism that the post-award regime has significant spillover effects in the pre-award phase. The explanation for these spillover effects is simple: Arbitrators are strongly motivated to render arbitral awards that are neither set aside nor refused recognition and enforcement. Under certain rules, arbitrators might even have a best-efforts obligation to render such awards. In order to comply with this obligation, arbitrators generally anticipate at the pre-award stage potential pitfalls that may arise at the post-award stage. Against this backdrop, the present chapter examines the interplay between the post-award and the pre-award regimes with respect to how arbitrators approach evidentiary issues. §3.02 shows that a tribunal’s treatment of evidentiary issues may exceptionally constitute a ground for post-award relief. §3.03 examines the conclusions that can be drawn from this for the pre-award stage. §3.04 concludes.

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  Antitrust and Inequality: The History of (In)Equality in Competition Law and Its Guide to the Future

  Eleanor M. Fox and Philipp Baschenhof

  The inequality of wealth and income is increasing at a frightening pace across much of the world. At the same time, researchers are documenting increasing market power of large corporate players in concentrated markets. Market power may produce higher prices, less choice, less innovation, blocked opportunities, and lower wages. Studies link inequality of wealth and income with antitrust—the body of law charged with control of market power. Is antitrust (also called ‘competition law’) a cause of inequality of wealth and income? Is it a cure? Many scholars and policymakers answer yes to both questions. They typically recommend more aggressive antitrust, more funding of the antitrust agencies, prioritisation of cases that could principally help the middle- and lower-income population, and exemptions from antitrust for smaller market players. A separate body of scholarship questions whether antitrust has caused or could remedy inequality. There is a gap in the literature. No one has previously written the history of equality/inequality in antitrust: how has equality as a value been received into, or rejected by, antitrust? Is it a sympathetic or foreign element? How the value has been used in the past and is being used today can illuminate how it might be used in the future. It can clarify the receptivity, or not, of the antitrust ecosystem to equality. This chapter helps to fill the gap. The chapter offers four country studies. The countries (or jurisdictions) were selected to illustrate the full range of approaches from antagonism to equality as relevant to antitrust to equality as a raison d’être of antitrust. The country studies become a laboratory for drawing recommendations and conclusions. To give context to the country studies, this chapter briefly reviews the main points and claims in the literature on antitrust and inequality. It observes the multifaceted nature of the problem, including some difficulties in using antitrust to address the wealth/income gaps. After the country studies, the chapter synthesises the results, considers how equality can be integrated into antitrust in view of how it has been integrated in the past, and ends with recommendations and conclusions. The chapter takes as a starting point the premises that inequality of wealth and income without significant mobility is rising dramatically, and that extreme and growing inequality without mobility threatens the legitimacy of the socio-economic fabric, undermining democracy and causing instability within nations and in the world.

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  What is Penal Populism? Public Opinion, Expert Knowledge, and Penal Policy-Formation in Democratic Societies

  David W. Garland

  This paper explores the empirical, conceptual, and normative issues raised by the notion of ‘penal populism’. It discusses the relations between the media, the public, and political representatives. It considers the balance between professional expertise and community sentiment in the formulation of penal policy—especially in respect of measures where moral rather than instrumental considerations appear to predominate. It raises theoretical and empirical questions about the nature of ‘public opinion’; methodological questions about how best to take its measure; and political questions about its proper status in the democratic process. It discusses the historical conditions that brought ‘penal populism’ to prominence as well as institutional and comparative questions about its varying capacity to shape policy. And it considers the professional responsibilities of penal experts in relation to policy formation and political debate.

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  Autonomous Interpretation and Its Limits: The Incorporation of the CISG into Domestic Sales Law

  Clayton P. Gillette and Steven D. Walt

  The United Nations Convention on Contracts for the International Sale of Goods (CISG) turned 40 in 2020 and experts around the world did not miss the celebrations. This book collects twenty-five studies in tribute to the CISG for its 40 anniversary, written by experts from Europe, America and Asia, with different focus of analysis. The goal of (The transnational sales contract. 40 years influence of the CISG on national jurisdictions) is to present what we have learned from the CISG during this time of born, development and consolidation. The book aims at navigating through the influence of the CISG in different jurisdictions, thus revealing the creation and existence of a truly autonomous and transnational contract law of worldwide application.

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  The Antiliberal Idea

  Stephen Holmes

  While definitions cannot be true or false, word choice can be more or less illuminating. Indicating what it is not, illiberalism might conceivably refer to any non-liberal, for example feudal, pattern of thought or behaviour. Reminding us of what it is against (and up against), by contrast, antiliberalism has more pungent connotations. It draws attention helpfully to the essentially derivative, adversarial, and aggrieved nature of the illiberal mindset that preoccupies us today and that, indeed, has played a thunderous role in European politics starting in the nineteenth century with the Counter-Revolution in France and the Slavophile resistance to Westernization in Russia. Liberalism itself refers to a sprawling and historically evolving set of normative priorities, problem-solving practices, and institutional alternatives. Antiliberal proselytizers and politicians, as a consequence, adopt shifting intellectual guises and rhetorical airs depending on the version of political, economic, and cultural liberalism that they view as malignantly dominant and ripe for toppling at any given time and place. But the antiliberal mentality also displays certain timeless features that permit us to treat its various colourful instantiations as belonging roughly to a single movement or school of thought. Antiliberals of every stripe, for example, have “disdained the liberal habits of tolerance, dissent, debate, [and] openness”. Before attempting to sketch out the permanent structure of antiliberal thought, we should acknowledge that hostility to liberalism is either politically anodyne or politically calamitous depending on contingent historical circumstances. It just so happens that today, in 2021, the antiliberal sensibility has emerged as a newly aggressive force in global politics, putting at risk the stability of liberal democratic regimes and the international institutions built by the West after World War II. This leap into deadly political prominence cannot be traced to any internal evolution of antiliberal thinking, however. It is due solely to a shift in the political winds. Domestic political weakness in the two most celebrated exemplars of liberal politics and economics, the US and the European Union, has arguably been the most decisive factor in the soiling of liberalism’s global reputation. Be this as it may, the first two decades of the twentieth century have provided fertile ground for the rise of anti-establishment leaders and parties able to attract mass support by openly celebrating xenophobic and authoritarian nativism Social, economic, demographic, and technological factors have also conspired to prevent liberal forces from mounting an effective and coherent response. But while the political success of the new antiliberals is recent and dismaying, the stock slogans they repetitiously cite are anything but new.

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  Safeguards: ‘This Is Not an Exit’—Article 16 in the Ireland/Northern Ireland Protocol

  Robert L. Howse

  Chapter 13, by Robert Howse, focuses on another mechanism foreseen in the Protocol, whose operation is left to the discretion—and wisdom—of the parties: the ‘Safeguards’ Article 16. As Howse explains, Article 16 is an emergency provision that either the UK or the EU can invoke unilaterally if the application of this Protocol leads to serious economic, societal, or environmental difficulties that are liable to persist, or to diversion of trade. However, as Howse shows from a comparative perspective with a variety of safeguard mechanisms in international trade agreements, Article 16 is not really the silver bullet that many political leaders claim it is. In fact, triggering the clause would not authorize a full-blown suspension of the Protocol. Rather, a process—detailed in Annex 7 attached to the Protocol—would start; measures would need to be strictly necessary and proportionate; and the other party could take rebalancing measures. Howse details the legal content of Article 16, and points out its limited power, concluding that ultimately the provision does not allow a party to opt out of the Protocol.

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  Time and Tide Wait for No One: The Curious Consideration of Time in International Investment Treaty Law

  Robert L. Howse and Barry Appleton

  The question of time in the operation of international law cannot always be resolved easily. In international investment treaty law, the resolution of temporal issues often requires an international tribunal to make detailed factual determinations, as well as to arrive at a correct understanding of both the primary treaty obligations at issue and matters of state responsibility. In particular, complex questions arise where determinations—such as whether a breach exists and when the breach occurred—involve judgments about conduct over time. These questions include the impact on a claim of the treaty’s date of entry into force or the date of its denunciation (or otherwise the demise of its validity), as well as the impact of time bars and notice periods as conditions of either jurisdiction of the tribunal or admissibility of the claim. In these instances, it is crucial that the tribunal bases its judgments about temporality and its legal effects on an appreciation of the treaty’s temporal requirements and an understanding of the nature of the primary obligation, which determines what will amount to a ‘breach’. The object and purpose of the temporal requirements and the primary obligations need to guide the arbitral assessment, along with relevant policy considerations, such as equity and good faith.

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  Sowing the Seeds of an ISDS Legitimacy Crisis? The Notorious First Wave of NAFTA Chapter 11 Awards

  Robert L. Howse and Güneş Ünüvar

  The early cases decided by arbitral tribunals under the Investment Chapter (Chapter 11) of the North American Free Trade Agreement (NAFTA) are among the original sources of the legitimacy crisis1 of Investor-State Dispute Settlement (ISDS). In several instances (though not all), tribunals found that regulatory measures were violations of either the national treatment (non-discrimination—Article 1102) or expropriation provisions of Chapter 11 (indirect expropriation—regulatory takings—Article 1110). Violations of fair and equitable treatment (‘FET’) (minimum standard of treatment—Article 1105) were also found. This chapter will examine six early NAFTA disputes, spanning the 1990s through the start of the new millennium: Ethyl v Canada, Pope & Talbot v Canada, Metalclad v Mexico, S.D. Myers v Canada, Feldman v Mexico, and Methanex v United States. In so doing, it will refer to parties’ relevant arguments and tribunal elaborations on Article 1105, though focus will be kept on national treatment and expropriation. On the facts, none of the results in these disputes unambiguously support the view that legitimate policy space is at risk from ISDS—even if some academic commentators have sought to present this case law as a basic threat to regulatory democracy. In Ethyl and S.D. Myers, while health hazards were asserted as a reason for the measures, only international and/or interprovincial trade were banned, not the allegedly harmful substance or activity itself—a classic protectionist fact pattern. In Pope, the investor sought to impugn the way that Canada had implemented that decision, allocating trading rights among different companies within the country, rather than the underlying policy decision of the government to have a managed trade arrangement with the US. In Methanex, the investors’ claim failed where California’s ban on methyl tertiary-butyl ether (MTBE) was a well-justified health and environmental policy. Metalclad, where the Tribunal appeared to find a regulatory taking based entirely on the measure’s economic effects on the investor, nevertheless considered public policy in the FET analysis, finding that the measures in question were not reasonably related to environmental and health objectives. When one appreciates the nature of these claims, the resulting awards do not suggest a complete disregard for legitimate public policy by arbitrators. The awards instead expose arbitrators’ difficulty in applying treaty texts that do not contain explicit exceptions or limitations to protect legitimate public policies. The NAFTA contains carve outs for investment protection for certain kinds of policies and at the outset permitted State Parties to lodge reservations for policies they sought to protect. Beyond that, the NAFTA Investment chapter did not have a general exceptions clause like Article XX of the General Agreement on Tariffs and Trade (GATT). This is significant with respect to national treatment and indirect expropriation. In the case of FET, public policy reasons are usually considered in the assessment of whether measures are arbitrary or unreasonable. In the case of national treatment and indirect expropriation, it would have been open to the arbitrators to refuse to consider policy justifications, once it was found that the measure provided the claimant less favourable treatment than domestic investors in like competitive circumstances. In Metalclad, with respect to indirect expropriation, the Tribunal did not go beyond the consideration of economic effects—assuming its assessment of the policy and regulatory context under FET was such that no police powers argument needed to be entertained. The national treatment rulings are interesting precisely because of arbitrators’ attempts to develop jurisprudential constructs to assess public policy, in the absence of an exceptions provision like GATT Article XX. This leads to the consideration of public policy in examining whether a claimant and competing domestic enterprises are truly in like circumstances. The tribunals differ in determining whether the standard of review applicable to policy measures is reasonableness, proportionality, or necessity. The tribunals sometimes operate from a consciousness that they are inventing Article-XX substitutes, while at least one tribunal repudiated the GATT/World Trade Organisation (WTO) acquis as a starting point for understanding national treatment in NAFTA’s Investment chapter (Methanex). These early national treatment cases reflect ‘cross-judging’—the influence of one international tribunal or dispute settlement regime on another, which generates imitation and differentiation. NAFTA tribunals have, on occasion, accepted any rational policy basis for a general regulatory scheme, precluding scrutiny of whether its detailed application embeds discrimination or protectionism (the Pope national treatment analysis). This demonstrates a flawed approach to cross-judging—borrowing from another regime without fully appreciating its features. In the case of Article XX of the GATT, the preambular provision requires, in addition to a requisite nexus between the general measure and one of the stated legitimate policy objectives, that the detailed practical application of the scheme not embed unjustifiable or arbitrary discrimination, nor constitute a ‘disguised restriction.’ Even if the results of these early NAFTA cases are consistent with appropriate deference to legitimate public policy, critics had good reason not to be satisfied by these results. The extreme indeterminacy in the handling of public policy, the lack of a treaty-based justificatory structure and the oscillation between standards of review gave rise to a danger of ‘regulatory chill’, whereby uncertainty about how a given tribunal might evaluate public policy justifications would lead risk-averse governments to avoid otherwise socially desirable regulatory changes. It is useful to consider the differences in remedial framework in the WTO and ISDS. In the WTO, if the adjudicator should find that some aspect of the way a regulatory scheme is applied does not satisfy the conditions of Article XX, the appropriate remedy would be for the regulating state to fix the issue going forward; no reparatory damages exist under the WTO system, often requiring the dismantling of entire regulatory programmes, as opposed to surgically excising some discriminatory element. In the ISDS context, the consequences are quite different: a damages award of many millions of dollars that reflects economic harm to the investor has already been made. When the NAFTA was negotiated, ISDS was largely seen as a system that gave corporations from the North an alternative to domestic litigation in settling disputes with countries in the South, the latter supposedly lacking in the rule of law, and thought likely to engage in arbitrary government actions. Canada reacted to the early cases against it as if they were an abuse of the system: a government with a highly developed domestic legal system should not see its own courts bypassed by foreign investors, nor should such investors attack regulations promulgated by advanced democratic governmental systems. This may explain the relative ease in presenting the defending states as engaged in legitimate governmental activity—even if aspects of discrimination or political motives were clearly present.

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  Independence and Union: Imperfect Unions in Revolutionary Anglo-America

  Daniel J. Hulsebosch

  Independence or union? Alone or connected? In revolutionary America, this was a false choice. Most defined the choice of revolution—the choice for the North American provinces, and for themselves—as between remaining in one complex polity and creating another. The choice was between competing unions. But there had always been more than one union in the colonists’ Atlantic world, and, after independence, the possibilities for association proliferated. The Age of Revolutions witnessed an astounding array of imaginative plans for integrating peoples, places, and ideas. Only in retrospect does the reciprocity between independence and union seem paradoxical. Many still remember that the Declaration of Independence “dissolve[d]” the “political connections” to Great Britain, but not Congress’s simultaneous assumption of the power to “contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” Although Patrick Henry’s demand for “liberty or death” may have rallied some to the cause, Benjamin Franklin’s repeated injunction to “join, or die” better captured revolutionary imperatives. Similarly, most recall President Washington’s warning in his Farewell Address to “steer clear” of political and military alliances, rather than his administration’s pursuit of international integration along almost every other dimension, or what he called “harmony [and] liberal intercourse with all nations.” Peaceful rather than defensive unions were the key to the nation’s success. Early Americans built their independence-through-union projects along three intersecting planes: the national, the international, and the trans- national. American national projects for independence and union included the most well-known examples: The independence of the thirteen revolutionary states and their cooperation in the Continental Congress, under the Articles of Confederation, and eventually in “a more perfect” union under the federal Constitution of 1787. Projects for international union included negotiated cooperation through treaties and indirect coordination through the law of nations, which was supposed to regulate the interaction of early modern nations in lieu of or auxiliary to treaty relations. White North Americans were not, however, the only international union-makers in the Americas. Other associations included real and imagined unions among different polities, such as serial Native American confederations designed to challenge the United States’ claims to the western territories; British and Spanish attempts to establish multinational Native American barrier states east of the Mississippi River and insulate their colonies from American expansion; and the effort of Latin Americans to unite in their own unions—even, in some recurrent imaginings, in a Pan-American union that would include the United States. Finally, Americans forged transnational unions to coordinate activity across borders. These included commercial unions, religious societies, as well as what some began calling “human rights” associations, such as the movements to end the Atlantic slave trade and to spread republican self-government. People stacked their memberships in these unions, as subjects or citizens, adherents to international treaties, and associates in organizations that transcended the nation, rearranging them as their interests and circumstances required. This three-plane division is admittedly schematic and misleading, for most unions mixed all three dimensions, and each depended on the others. National and international spheres interpenetrated as a matter of definition; the boundaries between them were contested. The point of greatest connection—and friction—was law. Some in the United States exploited the contact between the law of nations and American law to further projects for international integration, at home among the states and abroad, while others sought to separate them more clearly to pursue their different projects. Together they participated in a transnational dialogue about what it meant to be a “civilized nation.” Similarly, builders of transnational unions depended on national and international law for their projects: treaties and an increasingly transnational commercial law, as well as municipal charters of incorporation, local judicial remedies, and transnational networks of lawyers. They operated beyond and across nations, but rarely outside them.

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  The Plebiscite in Modern Democracy

  Samuel Issacharoff and J. Colin Bradley

  This chapter argues that democratic institutions must face the challenge of how to institutionalize a compromise between the need for citizen engagement in politics and the realistic division of labour between the governors and the governed. The chapter canvasses different mechanisms of plebiscitary or direct democracy and outlines the major arguments for and against plebiscitary and representative forms of democracy. In recent decades, however, political parties and other intermediary institutions that traditionally bridged the gap between the twin evils of too much and too little popular sovereignty have collapsed. These developments have reconfigured the traditional compromise between plebiscitary and representational democracy, and consequently, the fate of liberalism’s balance of the two. Popular voting, now more than ever, serves to delegate governing authority to a powerful executive—granting a legitimacy heretofore reserved for party-mediated representative institutions. Overtly ideological plebiscitary consultations, as seen in a number of recent elections, provide little or no guidance for translating the abstract decision of the people into governance norms. Democracies are now challenged to find alternative electoral arrangements that can provide adequately concrete directives to, and constraints on, those who wield the enormous power of administrative and bureaucratic governance.

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  Hobbes and the Plague Doctors

  Benedict Kingsbury

  The frontispiece to Hobbes’ Leviathan (1651) features two specially-garbed plague doctors standing together within the walls of the almost empty city. In conventional terms they might symbolize one of the sovereign’s greatest duties, or they may remain outside the body politic because they are hired-in only during the emergency. This chapter reflects from a different thought, that the itinerant plague doctors might be emblematic of transnational knowledge circulation, and located in the complex history of science-experts (and medical experts) in relation to formalized ruling power. It builds from Thucydides, Hobbes and Foucault to argue that the courage and special status of front-line health professionals, fearless also in speaking out against political pressures, might desirably be instantiated in bodies such as the World Health Organization, and can also be an inspiration for lawyers in troubling times.

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  The Economic Analysis of Law

  Lewis A. Kornhauser

  Economic analysis of law applies the tools of microeconomic theory to the analysis of legal rules and institutions. Ronald Coase [1960] and Guido Calabresi [1961] are generally identified as the seminal articles but Commons [1924] and Hale [1952] among others had brought economic thinking to the study of law in the 1910s and 1920s. Richard Posner [1973] brought economic analysis of law to the attention of the general legal academy; by the late 1970s, his work had provoked a vigorous controversy. This controversy was both general and doctrinally specific. Posner had claimed generally that the common law was and ought to be efficient. This latter claim provoked a broad controversy about the evaluation of legal rules. More specifically, controversy recurred each time economic analysts of law addressed another doctrinal area. More often than not, the introduction of economic analysis into the study of a doctrine transformed that area of scholarship. For a time, economic analysis dominated the study of private law in the United States; arguably it still dominates, though a healthy resurgence of moral accounts of these areas has recently emerged to challenge economic analysis of private law. Many practitioners and critics alike believe that economic analysis of law offers a comprehensive theory of law. As traditionally understood, a comprehensive theory of law has several components. First, a comprehensive theory of law begins with a characterization of the nature of law. This component distinguishes law not only from other normative systems such as morality, religion, and social conventions such as etiquette but also from coercion and politics. The second part of a comprehensive theory of law characterizes the grounds of law. Dworkin framed the grounds of law as the truth conditions for a proposition of law. From this perspective, much of the debate over the concept of law concerns the role that morality plays in these truth conditions. As discussed in section 3 below, the first and second parts of a comprehensive theory of law have often been conflated in the debate over the concept of law. The third part of a comprehensive theory of law identifies the nature of the reasons for action that law provides. Often, this aspect of a theory of law is subsumed under the second part that identifies the grounds of law. For purposes of an exposition of the economic theory of law, however, it is useful to distinguish these two questions. The fourth part of a comprehensive theory of law identifies the value of legality. The fifth and final part of a comprehensive theory of law articulates a normative theory of adjudication, a theory of how judges ought to decide cases. Framed this way, it is not clear that economic analysis of law does provide a comprehensive theory of law. The questions posed above have rarely been addressed clearly and explicitly by economic analysts of law. The early debates conflated theories of adjudication with the value of legality; subsequent debates have largely concerned theories of private law rather than of law generally. This essay thus offers both an interpretation of the approach to these five questions implicit in the practice of economic analysis of law and a recharacterization of economic analysis of law generally. Economic analysis of law is not a single, unitary practice but a set of projects that share a methodological approach. The typical economic analysis of law does not set its task within the framework of a general legal theory. Rather, it addresses a specific question about the causes or consequences or social value of a specific legal rule or set of legal rules. Phrased differently, the typical economic analysis of law investigates a specific legal rule or institution rather than make general claims about the nature of law. Nonetheless, economic analysis of law, or at least strands of it, implicitly offer distinctive, often radical, answers to the questions addressed by legal theory. Moreover, some strands suggest a radically different perspective on law and legal theory. The next section sets out the complex set of claims that emerge from the mass of economic analyses of law and identifies three projects that organize much of the work in the field. Subsequent sections ask what perspective on law these claims and projects implicitly or explicitly provide.

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  Der Ukrainekrieg und Zukunft der internationalen Rechtsordnung

  Mattias Kumm

  In seiner Regierungserklärung vom 27. Februar 2022, drei Tage nach dem Einmarsch Russlands in die Ukraine, sagte Olaf Scholz im Deutschen Bundestag: „Wir erleben eine Zeitenwende. Und das bedeutet Die Welt danach ist nicht mehr dieselbe wie die Welt davor. Im Kern geht es um die Frage, ob Macht das Recht brechen darf, ob wir es Putin gestatten, die Uhren zurückzudrehen in die Zeit der Großmächte des 19. Jahrhunderts, oder ob wir die Kraft aufbringen, Kriegstreibern wie Putin Grenzen zu setzen.“ Diese Beschreibung bringt das Problem auf den Punkt. Was aber in dieser Erklärung und auch in den sich in den folgenden Monaten anschließenden Diskussionen frappierte, war das Fehlen eines Themas, das es eigentlich verdiente, mit im Zentrum der Debatte zu stehen Obwohl sich in der Gegenwart Krisen häufen und die Gefahr eines Krieges zwischen nuklear bewaffneten Großmächten so hoch ist, wie sie es seit den Höhepunkten des Kalten Krieges nicht mehr war, fehlt in der aktuellen Diskussion um den Ukrainekrieg eine auf Reform der bestehenden internationalen Ordnung ausgerichteten Perspektive. Die gesamte Diskussion im Westen erschöpft sich in Fragen, welche Waffen an die Ukra- ine geliefert werden sollen und wie scharf die Sanktionen gegen Russland sein sollten, um die Ukraine in die Lage zu versetzen, sich effektiver gegen den rechtswidrigen Angriff Russlands zu wehren, ohne dass der Krieg über die Ukraine hinaus eskaliert, wie viel Aufrüstung jetzt erforderlich sei und allenfalls noch wie viel Leiden den deutschen Bürgern zugemutet werden kann. Das sind wichtige und notwendige, aber letztlich nicht hinreichend tiefgreifende Fragen. Die in der Gegenwart immer deutlicher hervortretenden Mus- ter von erneutem Großmachtwettbewerb, Wettrüsten, Kriegen und Kriegsdrohungen sind nicht einfachtatsächliche Machtphänomene, die naturgemäß zu stark sind, um vom Internationalen Recht effektiv eingehegt zu werden. Die Struktur der bestehenden internationalen Rechtsordnung selbst spielt in der gegenwärtigen Konstellation eine ermöglichende, den neuen Großmachtwettbewerb nicht zähmende, sondern letztlich sogar provozierende Rolle. Die Struktur dieser Ordnung ermöglicht und unterstützt eine politische Dynamik, die diese Ordnung im Kern immer weiter aushöhlt und letztlich zerstört. Die Frage ist, welche Strukturmerkmale der bestehenden Ordnung es sind, die eine solche destruktive Dynamik des Großmachtwettbewerbs ermöglichen, und wie die internationale Rechtsordnung reformiert werden müsste, um diese Dynamik zu unterbinden. Die in den letzten Jahren immer wieder von westlichen Staaten beschworene „regelbasierte internationale Ordnung“ ist die Ruine eines unvollendeten Projektes der Konstitutionalisierung der internationalen Rechtsordnung. Dieses Projekt hatte in Wilsons 14 Punkten 1918 seinen politischen Ausgangspunkt und fand in den Ideen und konkreten institutionellen Projekten der Roosevelt-Administration 1941–1945 einen vorläufigen politischen Höhepunkt, dessen ambitionierte Konturen im Laufe des Kalten Krieges in Vergessenheit gerieten und nach dem Kalten Krieg im Zuge der Globalisierung nur selektiv wiederbelebt wurden. Im Folgenden soll dieser historische Hintergrund kurz nachgezeichnet werden. Zum einen soll es darum gehen, in diesem Rahmen eine Standortbestimmung vorzunehmen, bei der analytisch zentrale Begriffe und Kategorien gegenwärtiger Diskurse aufgegriffen und reflektiert werden. Wie wurde der Kampf zwischen Autokratie und Demokratie, so wie es die Biden-Administration auch infolge des Ukrainekrieges formuliert, bei der Entstehung der völkerrechtlichen Nachkriegsordnung gedacht? Was für eine Rolle spielt diese Unterscheidung bei der Rechtfertigung von Gewaltanwendung? Welche Rolle sollte sie hinsichtlich der Gestaltung von Handelsbeziehungen spielen? Welche Rolle spielt sie bei der tatsächlichen Ausübung von Gewalt und der Bereitschaft, sich für Gewaltanwendung vor internationalen Institutionen zu verantworten? Und was ist von anderen Stimmen der Gegenwart—zu denen auch, aber nicht nur Russland und China gehören—zu halten, die statt von einem Gegensatz zwischen Demokratie und Autokratie den Gegensatz von einer unipolaren und einer multipolaren Ordnung in den Vordergrund stellen und Hypokrisie und Doppelstandards des Westens beklagen? Aus diesen historisch-systematischen Reflexionen ergibt sich dann einerseits eine klarere Perspektive auf den gegenwärtigen Zustand der internationalen Rechtsordnung. Andererseits werden einige Eckpunkte für die Richtung und Struktur notwendiger Reformen der internationalen Rechtsordnung deutlich. Ziel ist es die Voraussetzung dafür zu schaffen, die Macht tatsächlich dem Recht unterzuordnen und dem Wettbewerb der Großmächte eine konstruktive Richtung zu geben.

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  You Have to Do the Truth Part First: A Dialogue Between Rev. James M. Lawson Jr. and Bryan Stevenson

  James M. Lawson Jr. and Bryan A. Stevenson

  A persuasive account of the philosophy and power of nonviolence organizing, and a resource for building and sustaining effective social movements. Despite the rich history of nonviolent philosophy, many people today are unfamiliar with the basic principles and practices of nonviolence—even as these concepts have guided so many direct-action movements to overturn forms of racial apartheid, military and police violence, and dictatorships around the world. Revolutionary Nonviolence is a crucial resource on the long history of nonviolent philosophy through the teachings of Rev. James M. Lawson Jr., one of the great practitioners of revolution through deliberate and sustained nonviolence. His ongoing work demonstrates how we can overcome violence and oppression through organized direct action, presenting a powerful roadmap for a new generation of activists. Rev. Lawson's work as a theologian, pastor, and social-change activist has inspired hope and liberation for more than sixty years. To hear and see him speak is to experience the power of the prophetic tradition in the African American and social gospel. In Revolutionary Nonviolence, Michael K. Honey and Kent Wong reflect on Rev. Lawson's talks and dialogues, from his speeches at the Nashville sit-in movement in 1960 to his lectures in the current UCLA curriculum. This volume provides a comprehensive introduction to Rev. Lawson's teachings on how to center nonviolence in successfully organizing for change.

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  ‘Integrity’, ‘Independence’ and the Internal Reform of FIFA: A View from the Trenches

  Miguel Maduro and Joseph H. H. Weiler

  Miguel Maduro and Joseph H. H. Weiler critically reflect on the 2016 FIFA governance reforms. Drawing on their experience as Chair and Member of the Governance Committee, they narrate some episodes that demonstrate that the dominant culture at FIFA was stronger than the formal institutional safeguards put in place by the governance reforms. Their contribution alerts us to the limits of both self-regulation and a rule-based approach to good governance. It also seriously questions FIFA's ability to reform itself.

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  Compliance in Historical Context

  Geoffrey P. Miller

  The chapter identifies compliance in its modern form as the product of conscious design—the application of learned principles of internal control in which compliance itself is conceived as a topic of analysis. Although compliance in its modern form experienced its greatest early development in the United States, it is now a worldwide phenomenon. The paper argues that the modern form of compliance is a product of two vectors of public policy: one moving from the bottom up, as policymakers apply lessons learned from experience to the formulation of compliance strategies for the future, and one moving from the top down, as policymakers enlist general principles and ideas in the design of concrete programs.

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  International Responsibility for Global Environmental Harm: Collective and Individual

  Liam B. Murphy

  There are important doctrinal and institutional obstacles in the way of proper treatment of collective legal responsibility of several States for global environmental harm, but no serious theoretical obstacles. Difficult theoretical issues do arise at the level of justification, however. The chapter investigates how legal and moral responsibility of individuals, States, and collectives of both all fit together as a normative matter, using global environmental harm as its case study. It argues that shared moral responsibility—the responsibility an individual has when acting together with others—is a very important moral phenomenon. By contrast we have no need for the idea of a collective (such as a State) itself being morally responsible. Ideally, the shared ex ante moral responsibilities of individuals together to reduce greenhouse gas emissions would be discharged by domestic law under the guidance of international law. Where non-complying States face sanctions, the burden of those sanctions will be imposed on individuals who are not responsible for their State’s failure. Yet citizens have political obligations to improve their States, including in the matter of compliance with international law. If the sanctions can be seen as doing citizens’ work for them, the burdens imposed do not seem objectionable.

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  410 U.S. 113, Supreme Court of the United States, Jane ROE et al., Appellants v. Henry WADE, No.70-18.

  Melissa Murray

  Argued December 13, 1971. Reargued October 11, 1972. Decided January 22, 1973. Justice MURRAY, concurring in the judgment. Since 1854, Texas, like many other American jurisdictions, has made it a crime to procure or attempt to procure an abortion, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Tex. Penal Code Arts. 1191–94, 1196 (1961). Petitioner Jane Roe is an unmarried woman living in Dallas County, Texas. She alleges that, unmarried and pregnant, she sought to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions.” She was unable to secure a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. Lacking the resources to travel to another jurisdiction to secure a legal abortion under safe conditions, she was forced to continue her pregnancy. We note at the outset that the abortion question has prompted serious debate and, in some cases, legal reform. Doe v. Bolton, 410 U.S. 179 (1973), a companion to the instant case, presents a constitutional challenge to a Georgia abortion statutory scheme that was recently enacted for the purpose of liberalizing extant criminal laws and providing wider access to safe, medically supervised abortion. Ga. Crim. Code §§ 26–1201–03 (1968). The fact that these more recent, reform-minded statutes, as well as the older Texas statutes challenged here, are before this Court suggests a need to address the broader question of whether the Constitution protects a woman’s right to choose an abortion. Here, Ms. Roe claims that the Texas statutes are unconstitutionally vague and that they abridged her right to personal privacy as protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The majority holds that the challenged statutes impermissibly violate the Fourteenth Amendment’s right to privacy. While I agree with the majority’s conclusion, I write separately to make clear that the Reconstruction Amendments, which sought to extirpate slavery and its vestiges, furnish additional grounds for invalidating the challenged Texas laws.

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  The Rights Revolution and the Modern Supreme Court

  Melissa Murray

  As the tumult of the 1960s gave way to the 1970s, much had changed in American constitutional law. In 1965, the Supreme Court announced its decision in Griswold v. Connecticut (1965), a challenge to Connecticut’s contraception ban. Enacted in 1879, the ban prohibited the use and distribution of contraception—even to married couples. For years, birth control activists had sought repeal of the law through the political process, with no success. When a legal challenge to the law failed in Connecticut’s highest court, birth control advocates, led by the Planned Parenthood League of Connecticut (PPLC), turned their attention to a federal challenge arguing that the Connecticut law violated the US Constitution. PPLC envisioned a new legal challenge that would focus both on doctors who wished to advise patients about birth control and on married couples for whom pregnancy would entail serious health risks and complications. The case—Poe v. Ullman (1961)—argued that the Connecticut contraceptive ban violated the patients’ and physicians’ due process rights under the Fourteenth Amendment. In making this claim, PPLC relied on arguments that the American Civil Liberties Union (ACLU) first made in the context of the rights of criminal defendants. In these earlier cases, the ACLU had argued that individuals maintained a zone of privacy against unwarranted state intrusion and interference. Now, in the context of birth control, PPLC and its lawyers argued that the logic of privacy prevented the state from criminally proscribing the use of birth control. In the end, the Supreme Court dismissed the claim in Poe on jurisdictional grounds, concluding that the case was not yet ripe for review because the Connecticut contraception ban had not actually been enforced against the plaintiffs. Still, the privacy argument that the Poe plaintiffs raised resonated with Justice William O. Douglas. In an impassioned dissent, he observed that “full enforcement of the law . . . would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.” Such an intrusion into “the innermost sanctum of the home” constituted, in Douglas’s view, “an invasion of the privacy that is implicit in a free society.” Still eager for the Court to consider the merits of the law’s constitutionality, PPLC sought an opportunity to bring a live case and controversy before the Court. To do so, PPLC Executive Director Estelle Griswold opened a birth control clinic in New Haven, which immediately drew law enforcement attention. In just a few days, Griswold was arrested and charged with violating the Connecticut law, setting the stage for Griswold v. Connecticut. As in Poe v. Ullman, the logic of privacy loomed large in Griswold. PPLC argued that the Constitution afforded individuals some degree of privacy against undue government interference in the most intimate aspects of their lives. A majority of the Court agreed. In a 7–2 decision authored by Justice Douglas, the Court struck down the Connecticut contraceptive ban, and in so doing announced a right to privacy that was implicit in the “penumbras” of “specific guarantees in the Bill of Rights.” Critically, Douglas specifically tethered the privacy right to marriage— the Connecticut law had gone too far, inviting the state to police “the sacred precincts of marital bedrooms.”4 Going forward, married couples would enjoy a constitutional right to privacy that allowed them to make decisions about contraception and family planning. If the Griswold Court’s understanding of privacy allowed married couples the autonomy to make decisions about contraceptive use, it was silent on whether the unmarried enjoyed the same right. Seven years later, in Eisenstadt v. Baird (1972), the Court would take up the question, striking down a Massachusetts statute that prohibited unmarried persons from using birth control. As the Court reasoned, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” A year later, in Roe v. Wade (1973), the Court would further elaborate the individual’s right to privacy in the context of criminal abortion laws. Throughout the United States, criminal abortion laws forced women to leave the country in order to safely terminate a pregnancy. Those without the means for international travel resorted to black market abortion procedures that were unregulated and unsafe. These realities fueled grass-roots efforts to liberalize—or even repeal—state laws criminalizing abortion, with uneven results. In four jurisdictions, abortion laws were repealed entirely. In a handful of other jurisdictions, the repeal effort faltered and gave way to liberalization as legislatures relaxed their abortion restrictions to allow women to obtain an abortion if they secured the approval of a panel of physicians. While the liberalization effort was, for some, a step in the right direction, for others it echoed the logic of the underlying laws by divesting women of the autonomy to decide for themselves whether or not to carry a pregnancy to term.