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  Avoiding Unintended Consequences in Civil Advocacy for Criminally Charged Immigrants

  Alina Das

  Immigrants who have been criminally charged are subject to numerous and serious consequences that go beyond the criminal penalties. Even a relatively minor interaction with the criminal justice system may jeopardize immigrants’ legal status or eligibility for obtaining legal status, thus affecting their ability to live, work, support, and remain with their families in the United States. Many criminal court dispositions may result in immediate detention and the initiation of removal (i.e., deportation) proceedings—even if the immigrant is a long-time lawful permanent resident and has a U.S. citizen family. Civil legal aid organizations and others engaged in civil advocacy on behalf of immigrants should be aware of the consequences of criminal charges. In this article I present an overview of the issues and resources for additional information.

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  Getting Climate-Related Conditionality Right

  Kevin E. Davis and Sarah Dadush

  Conditionality has gotten a bad name in development finance. But it may be rehabilitated by the emerging climate change regime. Mitigating climate change by reducing emissions of greenhouse gases (GHGs) from developing countries will require substantial amounts of capital. Some of that capital will come from individuals or organizations who insist that their funds be used in ways that tend to promote mitigation. In other words, they will insist on conditionality. This raises a number of policyconcerns, including several that are reminiscent of debates about conditionality in other contexts. The first part of this paper provides an overview of existing forms of climate-related conditionality. The second part sets out the main substantive issues involved. The third part considers implications for institutional design and the process by which conditions are formulated.

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  Rights, Termination of Parental

  Peggy C. Davis

  The Child: An Encyclopedic Companion offers both parents and professionals access to the best scholarship from all areas of child studies in a remarkable one-volume reference. Bringing together contemporary research on children and childhood from pediatrics, child psychology, childhood studies, education, sociology, history, law, anthropology, and other related areas, The Child contains more than 500 articles—all written by experts in their fields and overseen by a panel of distinguished editors led by anthropologist Richard A. Shweder. Each entry provides a concise and accessible synopsis of the topic at hand. For example, the entry “Adoption” begins with a general definition, followed by a detailed look at adoption in different cultures and at different times, a summary of the associated mental and developmental issues that can arise, and an overview of applicable legal and public policy. While presenting certain universal facts about children’s development from birth through adolescence, the entries also address the many worlds of childhood both within the United States and around the globe. They consider the ways that in which race, ethnicity, gender, socioeconomic status, and cultural traditions of child rearing can affect children’s experiences of physical and mental health, education, and family. Alongside the topical entries, The Child includes more than forty “Imagining Each Other” essays, which focus on the particular experiences of children in different cultures. In “Work before Play for Yucatec Maya Children,” for example, readers learn of the work responsibilities of some modern-day Mexican children, while in “A Hindu Brahman Boy Is Born Again,” they witness a coming-of-age ritual in contemporary India. Compiled by some of the most distinguished child development researchers in the world, The Child will broaden the current scope of knowledge on children and childhood. It is an unparalleled resource for parents, social workers, researchers, educators, and others who work with children.

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  Resolving Patent Disputes in a Global Economy

  Rochelle C. Dreyfuss

  As with other businesses, the patent industries have discovered the global marketplace. In the last dozen years, patent applications filed in countries other than the inventor’s place of residence have increased annually by 7.4% worldwide, and over the last two decades, licensing revenues in the OECD states have grown ten-fold. To a large extent, these developments stem from a dynamic familiar to other sectors of the economy: as countries grow wealthier and more sophisticated, as tastes and preferences converge, as transportation costs decline, foreign goods become more familiar, attainable, desirable and available. For the technology community, there are other factors that are also at play. The inclusion of the TRIPS Agreement within the World Trade Organization (WTO) framework means that patents are now readily available in many nations and across a broad array of creative endeavors. Intellectual production is becoming increasingly collaborative, involving inventors of different nationalities, working in a multiplicity of locations. Technology itself is changing. Digital products, such as software, can be transmitted around the globe instantaneously. There are also new developments, such as radio navigation systems, where patent claims are ‘divided’ in the sense that they describe conduct that can span jurisdictions. Although the practice of patented technologies is now international, patent law and patent rights remain territorial. Accordingly, firms operating in, or worried about competition from, foreign jurisdictions need multiple patents to protect their interests. As the numbers suggest, acquisition of foreign patents is becoming easier. One hundred and fifty countries are currently members of the WTO. While examination and registration are required in each country where protection is sought, various international arrangements facilitate that process. The Patent Cooperation Treaty (PCT) offers preliminary examination functions to its 137 signatories. Regional agreements go even further. For example, the European Patent Convention (EPC), which as of 2008 will have 33 members including all of the members of the EU, centralizes examination (and also deepens the degree of harmonization). Much harder are the issues that arise in connection with dispute resolution. When markets were mainly local, it was clear that disputes would be resolved, and judgments would be enforced, in local courts, under local law. However, the advent of global exploitation makes this approach cumbersome, unpredictable, costly and—in some cases—unfair. Consider, for example, a computer programmer (let us call him Developer, or D), working from his residence in the nation of Xandia, who reverse-engineers software that a producer, P, has patented in several nations. D creates an independent product that simulates all of the original’s functionality and sells access to it from his Internet site, which is hosted on a server in Patria. From there, it can be utilized globally and ‘mirrored’ (duplicated) by sites elsewhere. If P wants to enforce his patent to enjoin utilization and receive compensation for past infringements, where should P sue?

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  Envisioning Intellectual Property Rights for a Global Market: Out-takes from the American Law Institute's Project on Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes

  Rochelle C. Dreyfuss and Jane C. Ginsburg

  This book brings together thirty contributions in honour of Professor François Dessemontet, essentially in some of his areas of interest, such as contract, intellectual property and arbitration law, often from a private international law perspective. The authors, from Switzerland or abroad, come to testify their friendship and gratitude to those who, for many volleys of students of the Faculty of Law of the University of Lausanne, will have been one of the most striking teachers by his enthusiasm and dynamism, for his assistants an attentive and benevolent mentor, for all the lawyers of French-speaking Switzerland a tireless champion of continuous training, for a very large number of colleagues from all over the world a contact person with the incomparable talent to open up unexplored perspectives in any discussion; for legal science, finally, a mind of rare acuity, always at the forefront. The present volume, the eightieth of the collection founded and long led by François Dessemontet, today comes to give concrete to the right tribute due to him.

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  Health Care One More Time

  Richard A. Epstein

  People on all sides of the political spectrum agree that the crazy-quilt of the American health-care system needs major revamping. The analysis typically revolves around three interrelated axes: access, cost, and quality. On access, the dominant concern is the forty-six million individuals who do not have health insurance, plus those who may lose their coverage if the current recession deepens. That figure is, however, subject to important refinements: about ten million of those who are uninsured have had to opt out of the market because of high prices; about twelve million are eligible for government programs in which they have not enrolled; about 4.1 million children are now eligible for inclusion in the expanded State Children’s Health Insurance Program (SCHIP); and another ten million are illegal immigrants. The remaining fourteen million represent less than 5 percent of the overall population. Any comprehensive health-care plan must at a minimum address each of these groups. On cost, health care now gobbles up an ever larger fraction of gross domestic product (GDP). Three numbers capture the overall picture. First, total health-care expenditures reached $2.4 trillion in 2007, almost 17 percent of GDP, or about $7,900 per person. The projections are for more of the same. One estimate has 17.6 percent of GDP going for health care in the year 2009 (see http://homecaremag.com/news/health-care-spending-exceed-gdp-growth-20090224). Another estimate finds that $4.3 trillion, or 20 percent of GDP, will be spent on health care as of 2017 (see www.nchc.org/facts/cost.shtml). Poorer countries have lower costs, broader health-care coverage, and longer life expectancies. What, if anything, would allow us to spend health-care dollars more efficiently than we do today? On quality, at its best American health-care is as good as or better than any other throughout the world. But U.S. quality standards are far from uniform, and the uneasy sense is that the insistent cost pressures on the system will erode health-care quality in ways hard to identify and harder to correct. How should we cut this Gordian knot? The first hundred days of the Obama term have yielded only hints as to its eventual approach because the going is necessarily slow. Health-care reform is more complex than labor market reform, which has generated a huge hubbub involving the (misnamed) Employee Free Choice Act, legislation that is only two pages long. No one can pack health-care reform into that small a nutshell. In addition, the Obama team lost momentum when former Senate majority leader Tom Daschle, a consummate insider, was forced to withdraw his nomination for secretary of health and human services, paving the way for former Kansas governor Kathleen Sebelius, who is not. As the Obama administration works feverishly to extend insurance coverage without upsetting established institutions, it is critical that we take stock of the full range of reform possibilities, including roads not taken. This chapter first examines the philosophical foundation behind the modern claims of the right to health care before turning to the two major policy initiatives that are now under consideration: the first is a single-payer health-care system based on the Canadian model; the second, more eclectic effort hopes to build on existing public and private programs to extend basic coverage. I support neither of these efforts. The simplest and most cogent objection is that they are too costly, as no government can successfully devise rules to constrain demand while seeking to drive to zero the health care costs of recipients. Accordingly, in the last section I present an alternative approach that stresses deregulation, which, by reining in health care, expands access to health-care services for those now excluded from the system.

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  What Broadcast Licenses Tell Us About Net Neutrality: Cosmopolitan Broadcasting Corporation v. FCC

  Richard A. Epstein

  For the past several years, we have witnessed a nonstop intellectual debate over the merits of net neutrality as a guiding principle for organizing the broadband capacity within the United States. At its heart the dispute over net neutrality deals with the question of who controls the various pipes that control transmission over the Internet. As with physical systems, the options here are two. The first model creates a system of public regulation of private pipes that gives the state an active role in determining the composition of the traffic. Accordingly, one common variation on net neutrality is that the government should play the same role with communications, by directing the traffic in accordance with its own prior beliefs about the just mix of broadband users. Thus the government could seek to create parity across different user classes by prohibiting a broadband provider from imposing any heavier charges, or even any charges, against any particular class of users.

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  What's Wrong With the Employee Free Choice Act?

  Richard A. Epstein

  The first one hundred days of the Obama administration have been marked by its determination to pass the revolutionary Employee Free Choice Act (EFCA), which was introduced in Congress on March 10, 2009. As of this writing, it looks as though the bill will not pass this year, given the unanimous Republican opposition to it in the Senate. But the issue is likely to be revived again during the Obama presidency, as it has been before, so it is important to examine its provisions because it raises important issues of principle. In addition, it has gathered an impressive level of political and intellectual support. In particular, the EFCA has received the endorsement of the Democratic National Convention Platform Committee of prominent economists, under the aegis of the Economic Policy Institute, and of President Obama and Vice President Biden. In a recent congressional hearing before the 110th Congress on February 8, the EFCA was defended as the means to return to the management-labor balance under the National Labor Relations Act of 1935 (the NLRA, in its original form is commonly referred to as the Wagner Act), said to be the surest way to revive the fortunes of a shrinking middle class. The reality, however, is otherwise. The EFCA would hamper the efficiency of labor markets in ways that make the road to economic recovery far steeper than necessary. Generally, it will severely hurt the very persons whom it intends to help. Dire consequences of this sort do not occur by happenstance. They are driven by a misconceived vision that strengthening union monopolies will improve the overall operation of labor markets. But monopolies are as socially unwise in labor markets as they are everywhere else. Shrinking the size of the social pie hurts many in the short run and benefits no one in the long run. Wages and productivity are inextricably linked in the economy as a whole. The central mission of sound labor policy is to grow the economic pie to create greater opportunities for all. Employers should not be demonized; workers should not be canonized. We want firms and workers to make the best deals for themselves by playing within the rules of the game. The key task of labor policy is to determine how to best structure those rules. Accordingly, part I of this chapter outlines the proper role for freedom of contract in organizing labor markets. Part II compares this vision with the modern collective bargaining regime under the NLRA as it is currently organized. Part III explains the overall decline in labor unions over the past fifty years. Part IV explores how the key provisions of the EFCA will further deteriorate our overall economic conditions, followed by a brief conclusion.

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  Free Speech Rights That Work at Work: From the First Amendment to Due Process

  Cynthia Estlund

  ln the workplace, institutional context clearly affects the shape of constitutional rights. This is underscored by the Supreme Court's recent decision in Garcetti v. Ceballos. In denying First Amendment protections to public employees when they speak in the course of doing their jobs, Garcetti gets it wrong, but the right answer to the Garcetti problem is not so obvious. This article proposes a "due process solution" to the Garcetti problem that better accommodates the interests of employers and employees than any of the positions taken within the Court in Garcetti. Indeed, due process might provide a better framework for the larger uniyerse of public employee free speech controversies. As compared to current law, with its all-or-nothing recourse to federal litigation, the broader but flatter protections of a due process approach would smooth out some of the troubling "cliff effects" and distortions that current doctrine creates; it would be more compatible with workplace structures and relationships; and it might afford a more reliable freedom of speech for employees. Whether the due process solution would work as hoped turns in part on whether it would prove too compatible with prevailing workplace norms and too deferential to managers to afford the protection whistleblowers, dissenters, and the public need. This question echoes broader concerns about self-regulatory or "reflexive" models of modern law of which the due process solution is an example. The idea that institutions matter and should affect the shape of constitutional rights is likely to lead toward further institutional self-regulation. This is a perilous path unless we find ways of encouraging institutions to internalize public values and constitutional norms, while maintaining external check on those institutions that reinforce rather than undermine effective self-regulation.

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  The Shift From Defined Benefit Plans to Defined Contribution Pension Plans

  Samuel Estreicher and Laurence Gold

  The United States has undergone a major shift in recent years from defined benefit pension plans to defined contribution plans. The shift has important consequences for most Americans because defined contribution plans, in granting decision-making authority to participants, will often fail to provide adequate retirement income to individuals with median earning capacity. The authors propose a number of legal changes to reduce some of the regulatory handicaps that have attended defined benefit plans and improve the reliability of defined contribution plans as a principal source of retirement income. The rationale of the national public-private pension system that presently covers—and has consistently covered—just under half of the Americans who work for their living is this: working people from business managers to stock clerks depend on the continuing stream of income they earn each working year to sustain themselves and their dependents; it is not in the interest of enterprises nor socially desirable to require older Americans to sustain themselves in their later years by working until the day they die; and government, through Social Security and enterprises through tax-qualified pension arrangements, should therefore provide individuals a means, over a working career, of earning a retirement benefit that enables them to approximate their pre-retirement standard of living.

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  Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment

  Samuel Estreicher and Kristina Yost

  There has been a recent debate in the literature on the relative merits of arbitration, individual litigation, and class action litigation in providing adequate remedies for disputes arising out of the employment relationship. For the last decade and a half, the debate centered on whether arbitration provided a fair forum for plaintiffs, despite the relative informality of the process, the employer's ability to tailor procedures, and the claimed propensity of arbitrators to curry the favor of repeat-player employers. The empirical literature has not borne out these criticisms. Almost without exception, the studies find that employment arbitration is quicker, less costly, and results in a win-loss rate that is no different than in litigation, with median awards somewhat lower (perhaps due to the fact that low-value claims are able to proceed to hearing in the more informal process of arbitration).

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  Is Inequality a Threat to Democracy?

  John A. Ferejohn

  Many believe that the government bears an active role and responsibility on how wealth and income are generated and distributed. With the rapid increase in income inequality in a number of the advanced democracies, it has now become a concern on whether or not this should be considered as a threat. This chapter first examines what types of equality brings concern to the people. An outline of a normative theory of legitimacy which roots regime legitimacy in the satisfaction of an “interest tracking” condition and a political theory suggesting how income inequality can weaken democratic rule is then given.

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  Comparative Judicial Politics

  John A. Ferejohn, Frances Rosenbluth, and Charles R. Shipan

  This article studies comparative judicial politics, and presents a systematic definition of judicial independence. It presents theoretical explanations—positive and normative—for judicial independence, and examines judicial systems in a classificatory way. The article concludes with a list of the authors' ideas for empirical research.

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  Homeward Trend: What, Why and Why Not

  Franco Ferrari

  It is common knowledge, and has been for some time, that “drafting uniform words is one thing; ensuring their uniformity is another”, since “even when outward uniformity is achieved (…), uniform application of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably come to put different interpretations upon the same enacted words.” In order to reduce the risk of diverging interpretations of one and the same text, that text must also be interpreted in a uniform way, since, as stated, for instance, by Viscount Simonds on behalf of the House of Lords in Scruttons Ltd. v. Midland Silicones Ltd., “it would be deplorable if the nations should, after protracted negotiations, reach agreement (…) and that their several courts should then disagree as to the meaning of what they appeared to agree upon”. The drafters of the 1980 United Nations Convention on Contracts for the International Sale of Goods, hereinafter: CISG, were aware of this problem, which is why they introduced a provision designed to help to reach the uniformity aimed at, by imposing that in interpreting the CISG “regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.” The same is also true for the drafters of other uniform law conventions, such as the 1980 Rome Convention on the Law Applicable to Contractual Obligations and the 1988 UNIDROIT Conventions on International Factoring and International Financial Leasing.

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  "Symbolic" and "Instrumental" Aspects of Capital Punishment

  David W. Garland

  In the last thirty years, studies of the symbolic aspects of action and institutions have become well established in social science and in socio-legal studies. The analysis of symbolic connotation, oblique meaning and indirect communication has become central to one field after another, as the “cultural turn” has re-oriented sociology; historical work has focused on matters of culture and meaning; and expressive theories of law have prompted legal scholars to examine law's declarative, communicative aspects as well as its performative ones. This general re-orientation has made the study of symbols and symbolic action much more common but also somewhat less precise. The subtlety and care brought to these problems by early analysts such as Joseph Gusfield, Kit Carson, and Murray Edelman, or their common literary inspiration, Kenneth Burke, is not always in evidence, nor is the precision with which they defined their concepts and applied them to their material. Thirty years on, we have followed their lead but not always fully absorbed the lessons they have to teach us. This chapter will discuss a field of research in which symbolism in general and the symbolic/instrumental distinction in particular are frequently invoked by socio-legal scholarship-the study of capital punishment. It will use Gusfield's and Carson's analyses as a point of departure in an attempt to identify the problems to be explained, to clarify the conceptual issues involved, and to refine the kind of analysis that ought to be brought to bear. It will also carry forward their insistence on historical and theoretical specificity by suggesting that we must forge new conceptual tools if we are to properly understand the various ways in which “the symbolic” and “the instrumental” (as well as other forms of action and communication) feature in the institution of capital punishment. An inquiry of this kind seems timely. In recent years, it has become commonplace to discount the “instrumental” efficacy of capital punishment and to consider America's capital punishment laws and litigation as largely “symbolic” in motive and character. Commentators point to the death penalty's limited impact as an instrument of crime control; to the limited protections of legal rules that are designed to provide the “reassuring symbolism of legal doctrine” rather than to confer any more robust rights to the defendant; to the restricted role of instrumental (as opposed to symbolic) considerations in shaping public attitudes; and to the marked contrast between public enthusiasm for enacting death penalty statutes and institutional reluctance to enforce them. These observations frequently prompt the conclusion that the system is oriented to symbolic rather than to instrumental ends—that capital punishment is all symbol and no substance. Thus, Zimring and Hawkins assert that “the appeal of the death penalty derives not from its function as a particularly effective or appropriate penal method, but rather from its symbolic significance”. They point out that, for all the public discussion that surrounds it, the death penalty is imposed on very few offenders (in 2004 the number was 130, out of approximately 15,000 homicide arrests), and of these sentences, fewer than half are actually executed (in 2004, the number was 59), typically after a decade and more of appeals, habeas corpus reviews and stays of execution. This pattern of administration implies a discrepancy between the public's idea of capital punishment and the actual practices through which that punishment is (or is not) carried out. To many analysts this suggests that the death penalty ought to be considered as a symbolic gesture rather than an operative system of penal justice or crime control—or, as they typically say, as “symbolic” and not “instrumental.” Research on public attitudes similarly suggests that individuals support or oppose capital punishment on the basis of “symbolic attitudes” rather than as an “instrumental response” to the problem of crime. And Ellsworth and Gross point out that individual attitudes on this issue are rooted in “symbolic” associations with specific styles of life and identity rather than in instrumental calculations about what will best reduce crime or secure justice: “[D]eath penalty attitudes came to have a powerful symbolic significance, [with] support for the death penalty representing an ideological self-definition of the person as unyielding in the war on crime, unwilling to coddle criminals, firm and courageous". The finding that attitudes regarding capital punishment reflect the individual's basic values rather than his or her assessment of the practical efficacy of death as a specific penal sanction suggests that symbolic appeals and associations play a major role in shaping public opinion. For many members of the public, the death penalty is a resonant symbol that they invoke to express a sentiment, rather than a practical policy option that they have decided is more effective than the alternatives. Public opinion polls probably reflect and reinforce this tendency.

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  Efficiency, Fairness, and the Economic Analysis of Tort Law

  Mark A. Geistfeld

  Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of tort law has also been controversial. The two phenomena are related. It is highly controversial whether tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of tort law is controversial. The controversy associated with the economic analysis of tort law was initially stirred up by the provocative work of Richard Posner. Although he was not the first to apply economic analysis to tort law, Posner strongly influenced the newly developing field by forcefully propounding the claim that tort law should maximize wealth by minimizing accident costs. The approach ultimately foundered as scholars, including Posner, recognized that cost–benefit analysis cannot determine initial entitlements, the basic architecture of any legal rule. The specification of initial entitlements, and thus the substantive content of any legal rule, depends on normative justification and not economic analysis. This limitation of economic analysis was subsequently addressed by Louis Kaplow and Steven Shavell, who have constructed a proof showing that a “fair” tort rule can violate the Pareto principle by preventing the adoption of a welfare- maximizing, “unfair” tort rule. By showing how a principle of fairness can prevent such a Pareto improvement, Kaplow and Shavell provide a reason for rejecting a fair tort system in favor of one that maximizes welfare. This reason also provides a justification for the conventional economic analysis of tort law. A welfare-maximizing tort system ordinarily relies on cost-minimizing liability rules, thereby reestablishing the dominant role of economic analysis. All issues of concern to the tort system ought to be resolved in the cost-minimizing manner, the general method for maximizing social welfare and wealth. Not surprisingly, the claim that tort law should be nothing more than an exercise of cost minimization has provoked an equally extreme response from critics. The most forceful critique has come from those who maintain that tort liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice “rules out the economic analysis of [tort] law.” Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for tort liability is a rights-based principle such as corrective justice, then the justification for a liability rule does not depend on whether it is allocatively efficient. Economic analysis is ruled out as irrelevant to the rights-based justification for tort liability. Allocative efficiency does not need to be the norm of tort liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based tort system would employ economic analysis, and if so, how. No doubt, many believe that this question does not merit serious consideration. The conventional economic analysis of tort law asks whether a liability rule would minimize accident costs by deterring accidents in the future. That forward-looking inquiry seems to be utterly irrelevant to the backward-looking normative question: Is compensation in this case warranted because the defendant was responsible for violating the plaintiff’s right? Despite superficial appearances, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. A rights-based torts system can be fully compatible with the relevant requirements of welfare economics, contrary to the understanding one can easily gain from contemporary tort scholarship. The compatibility is not merely formal. Economic analysis is integral to any plausible rights-based tort system.

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  Products Liability

  Mark A. Geistfeld

  Products liability is a field of tort law governing liability for injuries caused by defective products that were commercially sold or transferred. Under the rule of strict products liability, a product seller is strictly liable for the physical harms caused by a defect in its product. The US rule of strict products liability closely corresponds to the EC Directive 85/374, which establishes a strict liability regime for defective products in all member countries of the European Union. As compared to the US, the liability rule has had much less of an impact in Europe. The US rule and EC directive, in turn, have influenced products liability rules in other countries, including Japan. The problem of product-caused injury is one of the most important issues addressed by tort law. Based on government data and 17 other large data sets, nonfatal consumer product injuries in the US had an estimated total social cost of approximately $500 billion in 1996. This cost would be considerably increased by the inclusion of fatalities, such as the annual deaths caused by automobiles, chemicals, drugs, and firearms. The vast majority of these accident costs are not covered by tort liability payments (compare Hensler et al., 1991, finding that tort liability payments constituted less than 10 percent of compensatory payments for accidental injuries). For those product accidents resulting in tort litigation, one government estimate found that plaintiffs won 37.1 percent of all products liability cases, excluding asbestos, that went to trial in state courts in 1996, receiving a median award of$177,000. For such cases tried in federal courts, plaintiffs won 26.6 percent of the cases and received a median award of $368,500. Most product-caused injuries do not result in tort litigation because only a fraction are caused by product defects. Products liability first emerged as a significant form of liability in the 1960s. Legal scholars who analyzed the emerging field rarely addressed efficiency concerns. Similarly, court opinions typically gave little or no explicit attention to efficiency. But as the economic analysis of products liability has developed over the past few decades and the economic consequences of liability have become more apparent, legal decisionmakers have paid increased attention to the economics of products liability. Today efficiency considerations often strongly influence the formulation of products liability laws. References to efficiency and cost-benefit analysis recur throughout the Restatement (Third) of Torts: Products Liability, the successor to the highly influential section 402A of the Restatement (Second) of Torts, which first promulgated the rule of strict products liability. The economic orientation of products liability, however, is not ordinarily apparent. Courts regularly emphasize that the primary purpose of products liability is to fairly protect consumer interests. Based on these cases, the Restatement (Third) concludes that ‘it is not a factor . . . that the imposition of liability would have a negative effect on corporate earnings or would reduce employment in a given industry'. Similarly, EC consumer law emphasizes consumer interests. The objective of products liability is one of fairness, not efficiency. Upon inspection, the fair protection of consumer interests justifies efficient liability rules. Cost-benefit analysis depends on prices, which in turn depend on the initial allocation of property rights. The specification of these legal entitlements, and thus the substantive content of any liability rule, necessarily requires noneconomic justification of some sort, presumably normative. These initial entitlements define the appropriate baseline for evaluating the distributive impact of tort liability. At the normatively justified baseline, the equilibrium product price must cover all of the seller's costs, including liability costs. At this baseline, the consumer pays for the full cost of tort liability, explaining why the liability rules exclusively focus on consumer interests. An exclusive focus on consumer interests, in turn, justifies efficient liability rules. Consumers both pay for and receive the benefits of tort liability, and so their preference for efficient liability rules—those that maximize the net benefit of tort liability—should govern. As a matter of efficiency, products liability does not have to be a form of tort liability, except for cases involving bystander injuries (to be discussed separately). If unregulated market transactions were efficient, courts would only have to enforce contractual allocations of product risk in order to maximize consumer welfare. Courts, though, do not ordinarily enforce contractual disclaimers of seller liability, making it necessary to identify the market failures that may justify tort regulation. Sections 11.2 through 11.10 accordingly develop the economic framework for evaluating different liability rules. Sections 11.11 through 11.13 describe the impact that the products liability system has had on product safety, innovation, and the market for liability insurance. The remaining sections discuss the efficiency properties of the main doctrines in products liability.

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  The Doctrinal Unity of Alternative Liability and Market-Share Liability

  Mark A. Geistfeld

  Market-share liability has been one of the most controversial doctrines in tort law, with a strong plurality of courts rejecting the doctrine on the ground that it radically departs from the fundamental tort principle of causation. Courts that have adopted this liability rule, though, believe they are adhering to the principle of causation. In the first case to adopt market-share liability, the California Supreme Court claimed that the liability rule is grounded upon an extension of alternative liability, a doctrine that has been accepted by virtually all jurisdictions. The court never adequately explained how alternative liability can be modified to yield market-share liability, and the only explanation provided by torts scholars involves redefining the tort right to permit compensation for tortious risk, conditional upon the occurrence of injury, rather than for the injury itself. However, courts do not conceptualize the tort right in these terms, for otherwise the doctrine of market-share liability would be uncontroversial. As this Article shows, market-share liability can be derived from alternative liability in a manner that neither redefines the tort right nor departs from the principle of causation. Alternative liability permits the plaintiff to prove causation against the group of defendants. This characterization of the causal rule has been recognized by some torts scholars, but has never been justified. The Article shows that evidential grouping is a defensible principle implicit in numerous cases involving analogous causal problems, including the asbestos cases. Evidential grouping not only explains the doctrine of alternative liability, it shows how a modification of that liability rule yields market-share liability largely for reasons given by the California Supreme Court. This conceptualization of alternative liability and market-share liability also explains the otherwise puzzling liability rule adopted by courts in the asbestos cases. Due to this doctrinal unity, the widespread acceptance of alternative liability should make market-share liability more widely acceptable.

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  Rationales for Detention: Security Threats and Intelligence Value

  Ryan Goodman

  In the armed conflict with Al Qaeda inside and outside Afghanistan, the US government has had to grapple with difficult legal issues concerning who can be detained. In this brief essay, I discuss whether US practices have been consistent with the law of armed conflict (LOAC). Three specific issues are considered. The first is a threshold question: Does LOAC regulate who can be detained in a non-international armed conflict? After concluding that it does, I address two questions that implicate the substantive criteria for detention. First, is it lawful to detain civilians who have not directly participated in hostilities? Second, is it lawful to detain individuals for a long or indefinite period for the purpose of gathering intelligence? Since September 11, the US government has adjusted its detention practices to overcome various legal defects. These three issues remain among the fundamental challenges to the detention regime. It is not obvious that LOAC regulates the substantive grounds for detention in non-international armed conflict. Neither Common Article 3 nor Additional Protocol II explicitly addresses the subject. They contain no language expressly prohibiting arbitrary detention or unlawful confinement. Similarly, the Rome Statute for the International Criminal Court includes “unlawful confinement” in a list of war crimes in international armed conflict. 2 Unlawful confinement, however, is conspicuously absent from the Statute’s list of war crimes in non-international armed conflict. Additionally, a 2004 expert meeting—which included Louise Doswald-Beck, Knut Dörmann, Robert Goldman, Walter Kälin, Judge Theodore Meron, Sir Nigel Rodley and Jelena Pejić—concludes that LOAC does not contain rules precluding unlawful confinement in non-international armed conflicts: “Non-International Armed Conflicts The experts noted that there are no provisions requiring certain reasons for detention, nor any procedures to prevent unnecessary detention. It was further observed that there are no specific supervisory mechanisms other than the minimal requirement that the ICRC [International Committee of the Red Cross] be allowed to offer its services. It was stated, therefore, that only national law is relevant, as well as international human rights law.” Some legal advisers at the International Committee of the Red Cross (ICRC) have helped support this view. A presentation at the 2004 meeting by Dörmann, Deputy Head of the Legal Division of the ICRC, states: “International humanitarian law applicable to non-international armed conflicts contains no provisions requiring certain grounds for detention/internment nor are there any procedures defined to check the need for such detention.” An important article in the International Review of the Red Cross by Jelena Pejić, Legal Adviser in the ICRC Legal Division, is more equivocal. She states: “In non-international armed conflicts there is even less clarity as to how administrative detention is to be organized. Article 3 common to the Geneva Conventions, which is applicable as a minimum standard to all non-international armed conflicts, contains no provisions regulating internment, i.e. administrative detention for security reasons, apart from the requirement of humane treatment.” Pejić does not elaborate whether or to what extent the requirement of humane treatment might directly regulate the use of security rationales or other grounds for confinement. Many of these experts find some solace in the notion that gaps in LOAC are intolerable (else a legal black hole) and that those gaps would be filled by international human rights law. The 2004 expert meeting, in which Pejić, Dörmann and others participated, concludes: “The experts stated that as IHL does not provide procedural guarantees to persons detained during non-international armed conflict, human rights standards must always apply . . . . The general view was that instead of trying to amend humanitarian law to remedy its failings, the standards applicable to non-international armed conflict should be those of human rights law and subject to human rights remedies.” International human rights law, however, is not accorded the same legal (or symbolic) weight in US law and practice as the Geneva Conventions or customary international humanitarian law. Hence, the exclusion of LOAC from this domain would leave a substantial void in the definition and regulation of impermissible behavior.

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  ‘If the Text Had Not Been Written, It Could Not Be Said’

  Moshe Halbertal

  This chapter explores the inner workings and implications of an unusual rabbinic locution. What at first appears like a simple hedge, when read more deeply, offers profound theological insights in which God is understood counter-intuitively as a slave, a wife, and a victim. While the chapter uncovers the yearning that Israel felt for God and the temple, it reveals the rich and complex emotions that link God to Israel.

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  The Liberty to Denounce: Ancient and Modern

  Stephen Holmes

  What is wrong, legally and morally, with a two-track judicial system, where most suspects are tried in ordinary courts but where individuals who are alleged to be especially dangerous are hauled before extraordinary civilian tribunals or “military commissions” with radically reduced procedural guarantees? Benjamin Constant asked and answered this question, with exemplary clarity, two hundred years ago: “It means declaring men convicted ahead of time, even when they are only accused.” No infallible external signs distinguish the guilty from the innocent. This is why legal procedures must not be casually circumvented, for they remain “the best methods available for ascertaining the facts.” That political authorities that claim to be curtailing due-process rights for the sake of “public safety” are guilty of “absurdity,” if not outright mendacity, was another one of his lifelong convictions. Even more remarkably, he explained in persuasive detail how the system of criminal justice is inevitably perverted when it is assigned the task not of punishing past crimes but of preventing future ones. “The pretext of preventing future crimes,” he argues, is wholly incompatible with a free society for the simple reason that “the possibility of committing a criminal act is an inherent feature of individual liberty.” As these remarkable passages suggest, Constant’s lucid writings on judicial power remain eerily relevant to twenty-first-century concerns. The present chapter focuses on a theme closely related to those just mentioned and one that speaks equally directly to legal and political difficulties of the present.

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  Carbon Trading and the CDM in WTO Law

  Robert L. Howse and Antonia Eliason

  WTO rules are likely to play a central role in the regulation of carbon trading and other forms of carbon finance, both in the interim as climate finance regulatory bodies begin to address domestic measures affecting trading and in the long term as the carbon market becomes truly global. This paper examines some key issues in the evolving legal framework for international carbon trading and associated services, including the likely treatment under existing WTO agreements of the three Kyoto flexibility mechanisms and other trading systems for carbon assets. Although no policy exhortations are made here, it is clear that decisions about which legal provisions will regulate carbon finance will involve many complexities and have significant consequences, and therefore must be thought through carefully.

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  Countervailing Duties and Subsidies for Climate Mitigation: What Is, and What Is Not, WTO-Compatible?

  Robert L. Howse and Antonia Eliason

  Subsidies are regulated by the WTO through the Subsidies and Countervailing Measures Agreement, which lays down rules for which subsidies are not permitted and recourse if they are used. One possible argument is that a state’s omission to internalize the negative externality of climate change through domestic regulation can count as a subsidy, although the viability of this line of reasoning has been called into question. The allocation of free allowances to protect domestic industry from the competitiveness concerns of leakage raises subsidy issues, possibly even contravening WTO rules, and the same applies to certain efforts to promote renewable energy use.

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  Domestic and International Strategies to Address Climate Change: An Overview of the WTO Legal Issues

  Robert L. Howse and Antonia L. Eliason

  This paper seeks to provide an overview of the issues of World Trade Organization (WTO) law that are raised by domestic and international policy strategies to address climate change. The paper also provides a non-exhaustive survey of, and commentary on, the existing literature that concerns these issues. Climate change, which has identifiable potentially catastrophic effects on the environment and human security in the broadest sense, cannot be halted, much less reversed, without the control and reduction of carbon dioxide (CO₂) emissions into the atmosphere. Current CO₂ levels in the atmosphere are higher than at any time in the last 450,000 years, and some analyses indicate that CO₂ levels are at their highest in twenty million years. Associated with a rise in CO₂ levels is a rise in global temperatures, and current projections by the Intergovernmental Panel on Climate Change (IPCC) suggest that without measures to reduce emissions, over the course of this century global average temperatures will increase by 1.8–4.0 °C.4 Rising temperatures are already causing Arctic ice to melt, glaciers to retreat and ocean levels to rise, threatening inhabitants of low-lying lands worldwide. Since these CO₂ emissions are, given current technologies, an inevitable byproduct of much of the energy consumed for transportation, industrial production, and domestic use, the challenge of halting and ultimately reversing climate change is an enormously difficult one. Several main international and domestic strategies have emerged and the paper will examine the WTO issues raised by each. The first strategy, exemplified by the Kyoto process, is to seek quantitative reductions in or caps on the level of emissions through binding international commitments of each state. Trade measures have been proposed by some commentators and officials as a means of pressuring non-participating states, especially the United States (US), to ratify the Kyoto Protocol, or at least to shoulder the share of the burden for reducing emissions that would be allocated to them under the principles of the Kyoto Protocol. The Kyoto process also envisages emissions trading as a way of efficiently achieving reductions in emissions, and the resulting carbon market raises General Agreement on Trade in Services (GATS) issues, since what is traded is arguably a financial instrument. A second and obviously complementary strategy to the Kyoto Protocol is to mandate the use of green or renewable energy, the consumption of which does not create CO₂ emissions, and/or to reduce the cost of such energy relative to conventional energy sources. Such mandates can raise WTO issues where they affect goods and services traded between WTO Members, as can subsidies, including fiscal measures, to reduce the cost of renewable energy. Moreover, the reduction of tariff and non-tariff barriers (such as idiosyncratic technical standards) on renewable energy and the technologies and equipment needed to produce it may make a significant contribution to lowering the cost of renewables relative to conventional energy sources. Finally, mandates to use renewable energy can be traded in the form of tradeable renewable energy certificates (TRECs) and the development of a global market in such instruments will be affected by the financial services and other relevant rules in the GATS. A third and also complementary strategy is that of energy efficiency. This can be achieved through product standards that specify a require performance level in terms of energy consumption. Subsidies may also be used to induce consumers and industrial users to switch to more energy-efficient goods, or adapt existing goods so as to make them more energy efficient. Again, where trade in goods and/or services is affected, WTO rules will be of relevance.

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  Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution

  Daniel J. Hulsebosch

  Most historians would settle for one landmark book. Morton Horwitz has published two already. The two volumes of The Transformation of American Law exist, however, in uneasy relation. To risk the reductionism that Professor Horwitz has always avoided, Transformation I was framed within historical materialism and strove to debunk the celebratory narratives of early American legal history. Transformation II, on the other hand, mapped onto an intellectual history that takes ideology seriously, and not only as an expression of Gramscian hegemony that dominant interests had to take seriously, too. An interesting counterfactual question is how Transformation I would differ if Professor Horwitz had written it in the spirit of Transformation II. What would the antebellum judiciary look like if its doctrines were viewed as something other than the expression of a legal profession that, in exchange for a monopoly on commercial dispute resolution, dedicated itself to the expansion of capitalist markets? If we took the legal reasoning of judges in the early Republic as seriously as Professor Horwitz took those of the “old” and “new” conservatives of the late nineteenth century, how would we characterize their decisions? The revision would not alter the outlines of Professor Horwitz's compelling argument about the economic consequences of doctrinal change. But it would at least complicate and humanize a judiciary that, in Transformation I, appears largely unitary and nameless. It might also return early American legal culture to its transatlantic and post-Revolutionary context. Professor Horwitz demonstrated that the “Commonwealth” historians who preceded him and examined some of the same issues, such as Oscar and Mary Handlin, Louis Hartz, and Willard Hurst, did not account for the distributional consequences of legal change. Yet both the Commonwealth historians and Professor Horwitz treated the reshaping of American law as a national phenomenon of the early nineteenth century while also describing a model of publicly subsidized economic development that could be applied to other places or times—and even revived in the United States a century later to help legitimize the New Deal. A step toward mediating the tension between exceptionalism and universalism in these narratives is to explore how the experience and memory of the Revolution affected legal reasoning into the nineteenth century. Most early American lawyers saw history playing out on a stage larger than the nation, but not marching across the entire globe. For decades they wrestled with the meaning, for law, of the Revolution. Internally, the British Empire had left them with a fragmented and pluralist legal order; the reconstitution of authority on the basis of popular sovereignty restructured but did not eliminate that fragmentation. Externally, they still derived most of their legal learning from Europe, especially England. The American constitutions did not specify how the legal systems in the new Union would operate. Their structure, personnel, and doctrine were left primarily to the legal professionals themselves. They had to solve problems of institutional design such as, Which structures worked best? What were the appropriate sources of law? And what literary forms should be used to teach and communicate law? Seeing early American judges as actors in a fluid, pluralist, and transatlantic legal culture throws a different light on the central theme of Transformation I. There, judicial decisions appear to flow from courts that, for the most part, agreed on their primary task: transforming law to subsidize economic development at the expense of agrarian producers. Professor Horwitz acknowledges that a few judges remained committed to agrarian values and dissented from the transformative consensus. Because of the deterministic premise of Transformation I, he treats these dissenters as voices from a fading world rather than as worthy opponents of modernization. It is correct, at least, not to treat them with nostalgia, because some of the dissenters objected less to economic transformation than to the reasoning process by which their brethren fostered it. In other words, even judges who supported commercial development disagreed about the limits that legal reasoning placed on those means. Instead of marching in lockstep, early American judges were arranged in constellations defined by region, education, training, and political ideology. Some constellations contained internal disagreement, too. The doctrinal changes that Professor Horwitz characterized as a single transformation reflected a variety of attempts, by many judges, to manage legal diversity among the states and, by some of them, to integrate the Union into the Atlantic world. This essay does not attempt to chart all the constellations of judges in the early United States.6 Instead, it explores disagreements between two of its most influential judges, Chancellor James Kent of New York and Justice Joseph Story of the U.S. Supreme Court, to illuminate how even judges committed to the same project—commercial union and international respect—disagreed about such fundamental questions of law as the extent of the federal commerce power, the reach of federal court jurisdiction, and the discretion of criminal juries. These disagreements reflected different understandings of the sources and methods of legal reasoning, as well as diverging assessments of the role of state, local, and popular institutions in American constitutionalism. Both were seeking to define who would administer legal change as the states evolved from a patchwork of British colonies into a federal union. These historical questions push beyond, or in different directions from, Professor Horwitz's monumental research agenda in Transformation I. They reopen the problem of law's role in developing not just the American economy but also its political economy. They also encourage us to view the early United States as a collection of postcolonial provinces rather than as a young nation on an inevitable path toward modernization. From this perspective, the root of all these questions was how early American lawyers and judges made sense of the Revolution's effect on law.