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  Regulating Labour In the Wake of Globalisation: New Challenges, New Institutions

  Brian Bercusson and Cynthia Estlund

  By the mid-twentieth century most North American and European societies had converged upon a model of national regulation of firms’ labour standards and labour relations, coupled with collective bargaining, as the response to unacceptable labour market outcomes. Regulation and collective bargaining occupied largely separate spheres, within which firms were seen as the objects of ‘commandand-control’ regulation and as the sites of industrial self-governance respectively. Subnational and supranational levels of government played only a very marginal role in labour relations or in labour regulations. In recent decades, however, the viability of both national regulation and collective bargaining has come under increasing pressure, and the appropriate institutional locus of workplace and labour regulation has become hotly contested. The forces at work are familiar: cross-border mobility of capital, goods and services, and to a lesser extent labour; the rise of multinational corporate entities; intense product market competition from outside the wealthy West; rapidly changing technology, shorter product cycles, and the resulting clamour for flexibility; and the growing importance of information and intellectual capital relative to physical capital. As the balance of power has shifted away from national governments and labour unions, on the one hand, and toward capital, on the other, employers have ratcheted up the demand for deregulation while gaining the practical ability in many sectors to circumvent or escape regulation by outsourcing production. In response to these forces, there have been efforts to move the locus of regulation ‘downward’ to smaller units of governance, including firms themselves, ‘upward’ to larger units such as regional federations and international organisations, and ‘outward’ to non-governmental organisations (NGOs) and civil society. Institutional actors at every level of governance—the International Labour Organisation, NAFTA and the European Court of Justice, national regulatory agencies, state and local governments, trade associations, labour unions, corporations, and NGOs—are all jostling for a role in the emerging regulatory regimes. Actors at disparate levels, from the firm to the ILO, are linking up to form novel regulatory approaches that do not depend on the efficacy of traditional national regulatory institutions. The efficacy of these emerging forms of labour regulation, their democratic legitimacy, the goals and values underlying them, and the direction of reform are all in dispute. With this as our very large theme, we and our colleagues at the School of Law of King’s College London, the University of London’s Institute of Advanced Legal Studies and the Columbia University School of Law convened an accomplished group of European and North American labour law and labour relations scholars. The group met twice, in 2003 and 2004, to discuss and compare emerging developments on both sides of the Atlantic and beyond. This book is the product of those presentations and discussions.

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  Polarization and Public Policy: A General Assessment

  David W. Brady, John A. Ferejohn, and Laurel Harbridge

  In the first volume generated by the Brookings-Hoover study on polarization in American politics, William Galston and Pietro Nivola correctly state that polarization is a serious concern if it “can be demonstrated to imperil the democratic process or the prospects of attending to urgent political priorities.” Their essay draws attention to a number of areas where it is alleged that polarization has negative consequences, including endangering the health of vital public institutions such as Congress, the courts, and the news media; reducing the responsiveness and accountability of the political process and the government to the citizenry; gridlock over major national priorities such as balanced budgets and sustainable social insurance programs; and the rise of incivility, which threatens pragmatic accommodation. Galston and Nivola’s discussion of possible consequences provides a balanced, judicious assessment of the likelihood that the various claims about polarization are more or less correct. In regard to accountability and representation, they cite Jacob Hacker and Paul Pierson’s recent book, Off Center, but they cast doubt on some of the strong claims made in the book. Galston and Nivola view policy gridlock as a potentially more serious problem; however, they also assert that a large amount of centrist policy has been made law over the last decade. Their discussion of Congress as “Hell’s Kitchen” is likewise balanced, with examples from both sides of the debate. They conclude by asserting correctly that increased polarization of the parties carries some risks. Specifically, polarization can complicate the task of addressing long-term problems; hinder the ability to have a steady, resolute foreign policy; damage vulnerable institutions; and erode public trust in government. This chapter deals with many of the domestic policy issues raised by Galston and Nivola. First, the relationship between polarization and citizen trust in government is evaluated. Then we turn to the issue of decreased accountability and responsiveness, where we find little, if any, support for Hacker and Pierson’s claims. That discussion is followed by analyses of gridlock and the use of restrictive rules as a congressional tactic. Here we find reasonable levels of support for asserting a relationship between polarization and both of these consequences. In each of these areas we bring data to bear on some part of the issue. In the final section, we deal with the broader issues raised by Galston and Nivola, especially the inability of government to deal with long-range problems.

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  Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities

  Richard R. W. Brooks

  Building on the field of critical race theory, which took a theoretical approach to questions of race and the law, Critical Race Realism offers a practical look at the way racial bias plays out at every level of the legal system, from witness identification and jury selection to prosecutorial behavior, defense decisions, and the way expert witnesses are regarded. Using cutting-edge research from across the social sciences and, in particular, new understandings from psychology of the way prejudice functions in the brain, this new book—the first overview of the topic—includes many of the seminal writings to date along with newly commissioned pieces filling in gaps in the literature. The authors are part of a rising generation of legal scholars and social scientists intent on using the latest insights from their respective fields to understand the racial biases built into our legal system and to offer concrete measures to overcome them.

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  Intersectional Bias and the Courts: The Story of Rogers v. American Airlines

  Paulette Caldwell

  In Rogers v. American Airlines, a federal district court concluded that an employer could prohibit the wearing of all-braided hairstyles in the workplace without violating proscriptions against race or gender discrimination in employment under Title VII of the Civil Rights Act of 1964. Arguing that American's grooming policy discriminated against her as a woman and, specifically, as a black woman, the plaintiff chose to rely on the interactive and mutually-reinforcing impact of race and gender as well as their independent effects. However, the court chose to treat the allegations of race and gender discrimination in the alternative—as wholly separate from each other—thus, denying any interactive relationship between them. The judge denied the plaintiff's sex discrimination claim because all of American's employees in customer-contact positions, whether male or female, were prohibited from wearing all-braided hairstyles. The court also denied the race discrimination claim on the ground that the grooming policy similarly restricted members of every race and did not single out any particular group for differential treatment. The court drew a distinction between biological and cultural conceptions of race, limiting protection against discrimination to the physical manifestations of racial identity—those over which an individual has no control-and denying protection for identity-related choices of personal expression. According to the court, all-braided hairstyles were not the product of natural hair growth, but of “artifice.” Like many cases in anti-discrimination law, Rogers has long been criticized by legal scholars as an example of how courts unnecessarily limit the definition of discrimination and, ultimately, the reach of law. The decision permits employers to discriminate based on race, so long as they do so using factors other than immutable traits. This distinction allows employers to create myriad proxies for race—hairstyle, name, speech pattern, accent, dialect, language choice—and, without judicial review, to disprefer members of subordinated racial groups on the basis of aesthetic, cultural, and statistically associated traits. What the Rogers decision did not say is that Congress nowhere dictated this limitation in Title VII. The court also failed to acknowledge that discriminatory intent often manifests itself in policies that do not explicitly mention race but mention instead proxies for race or racially associated traits such as hairstyles. Making matters worse, nothing in the decision requires employers to make their aesthetic choices known to employees and job applicants, with the result that affected individuals often do not even know why they have not been hired or promoted. The Rogers picture becomes even more disturbing when it is kept in mind that the court takes no account of the dignitary and psychological interests involved in individual expressions of racial and ethnic identity—expressive interests which frequently have been taken into account in defining the protections available against gender discrimination-and it does not consider the message of hostility, intimidation, and inferiority communicated by workplace rules that target the culturally specific behaviors of traditionally subordinated racial groups. Rogers also reflects a standard judicial response to a classic intersectional claim. The plaintiff argued that she suffered a form of discrimination that cannot be understood by analyzing one of the enumerated bases of discrimination-race or sex-isolated from the other. Intersectional claims require an intersectional analysis, one which proceeds from the understanding that “[i]t is impossible to isolate any one of the components” of an interacting complex of two or more forms of discrimination “or to separate the experiences that are attributable to one component from the experiences attributable to the others.” In a case such as Rogers, an intersectional analysis would necessarily examine the issue at the core of the plaintiff's complaint: that race and gender discrimination operated together to affect her as a black woman in a way that was not experienced by either white women or black men. The logic of the intersectional critique is difficult to refute; it is supported by a substantial body of scholarship in law and across academic disciplines. The legal academic debate was initiated by women of color who challenged the ways in which problems arising at the intersection of race and gender are marginalized in law, feminism, and antiracist politics. This early scholarship also made clear that the intersectional critique extends to other forms of bias, including class and sexual orientation, to any intersectional group, and to any area of law. Subsequent legal scholarship has developed analyses that take account of multiple systems of subordination, the ways in which they interact, and the bodies of law that support them. Though issues of intersectional bias began to appear in court decisions shortly after the passage of Title VII, courts have been slow to accept the basic tenets of the intersectional critique and to apply a coherent intersectional analysis to cases that call for it. This chapter examines the judicial reception of intersectional analysis in three sorts of cases, all of which include race as one of two or more protected categories involved in the dispute. First, based primarily on a sense that, in enacting Title VII, Congress intended to provide protection against intersectional bias, the courts have recognized the right of individuals to bring intersectional claims. However, judges have yet to set forth a coherent theory of intersectional discrimination or a proof model for establishing it. Second, in employment discrimination cases involving the intersection of categories of protection, one covered by Title VII, and the other, such as age or disability, by another employment discrimination statute, courts have equivocated over the availability of intersectional protection absent a clear congressional mandate to permit cross-statutory claims. Third, in jury discrimination cases brought under the Fourteenth Amendment, the Supreme Court has thus far refused to protect against intersectional bias, though some state courts have done so under comparable state constitutional provisions. Courts first dealt with intersectional claims involving race and gender bias brought by women of color. Accordingly, many, though not all, of the cases examined here involve the intersection of race and gender as it affects this group. For this reason, the story of Rogers v. American Airlines is a particularly apt way to explore the implications of intersectional claims. But as the cross-statutory employment discrimination and jury selection cases demonstrate, the intersectional critique has broad application to discrimination directed at any individual or group affected by two or more bases of subordination.

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  ADR and the Culture of Litigation in the United States of America

  Oscar G. Chase

  A puzzling and controversial shift in dispute processing occurred in late 20th century America. This involved a turning toward alternative dispute resolution (ADR). Both official and informal disputing were profoundly affected. How can this change be explained? Was there a motivating “crisis” in the courts? If so, what were its ingredients? The rise of ADR presents an opportunity to examine the ways in which cultural change interacts with more specific social forces to affect disputing. I argue in this article that, quite apart from a perceived litigation crisis, the move to ADR in the late 20th century has had institutional, political, and cultural ingredients. More specifically, as I explain later on, it was dependent on sometimes-conflicting shifts in values, such as those involving a growing distrust of government, humanization of large-scale institutions, the privatization of dispute resolution, social progress through individual improvement, and postmodern skepticism about an objective reality. In Part I of this article, I trace the rise of ADR in the last quarter of the twentieth century. In Part II, I provide a historical perspective on the use of ADR. In Part III, I explain the institutional, cultural, and political changes that gave life to the ADR movement. In Part IV, I address the claim made by some adherents of ADR that using ADR processes instead of litigation will make us a better people. Preliminarily, the generic concept of “ADR” includes any process that is an “alternative” to judicial adjudication. Although ADR includes such processes as negotiation, mediation, arbitration, “med-arb” (a combination of mediation and arbitration), early neutral evaluation, and summary jury trials, I use that term to refer only to arbitration and mediation. These two processes are very different. Arbitration involves a binding decision by a third party, whereas mediation involves a third party facilitator (a mediator) who assists the disputants in negotiating and reaching their own resolution. Mediation is voluntary and the disputants cannot be forced to agree to a settlement. Because of their differences, arbitration and mediation have served different, perhaps overlapping, functions in the American legal system. Thus, they have attracted support from different sectors of society. Because of its emphasis on consensual problem solving, mediation has appealed to reformers who highly value communitarianism and self-actualization or determination. In contrast, arbitration has been embraced by businesses, because of its relative privacy, its supposed cost and time savings over litigation, and the power it grants parties to choose an arbitrator who is knowledgeable about the substance of the dispute. As a result of federal law encouraging and directing courts to develop ADR programs, court administrators have established court-annexed programs that employ of mediation or arbitration ( occasionally both) in the hope that such programs will ease judicial caseloads.

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  Basic Inc. v. Levinson, 485 U.S. 224 (1988)

  Stephen J. Choi

  Beginning in late 1976, Combustion Engineering Inc. commenced discussions with Basic Inc.'s management concerning a potential merger. Despite the discussions, Basic Inc. issued three public statements in 1977 and 1978 denying that it was involved in any merger negotiations. Finally, in December of 1978, Basic Inc. announced its pending merger with Combustion Engineering Inc. Investors who had sold Basic Inc. stock from the date of Basic Inc.'s first public denial of any merger up to the announcement of the Combustion Engineering Inc. merger brought a class action suit against Basic Inc. and its board of directors, alleging a material misstatement in violation of Rule 10b-5 and section 10(b) of the Securities Exchange Act of 1934. The investors claimed that Basic Inc.'s public denials depressed the share price, resulting in a lower sale price when the investors sold their Basic Inc. shares during the class period. Writing for a plurality of the Supreme Court, Justice Harry Blackmun addressed two key issues concerning the application of Rule 10b-5: materiality and reliance. First, Blackmun dealt with the definition of materiality regarding contingent events. Blackmun followed the Second Circuit's lead in assessing contingent events based on the probability multiplied by the magnitude of such events. Because of the large magnitude of a merger, particularly for a target company, information on the merger even at early stages, when the probability is relatively low, may still be material. While the probability multiplied by the magnitude approach provides a framework to assess the materiality of contingent events, several questions remain after Basic. Merely invoking the probability multiplied by the magnitude formulation leaves open the question of the threshold above which the formulation is material. Is it $1 million, $10 million, or more (or less)? Moreover, how is a jury (or judge) to decide the probability of an event at a time in the distant past? Juries may suffer from hindsight bias in assessing the ex ante probability of known events after they actually occurred. The second major issue in Basic involved reliance. For the plurality, Blackmun ruled on whether the Basic Inc. class action plaintiffs had to demonstrate reliance on the part of each class member or, instead, whether a presumption of reliance would apply. The plurality in Basic established the “fraud on the market” presumption. Under the presumption, plaintiffs in a securities fraud action under Rule 10b-5 do not individually need to establish reliance on publicly disclosed affirmative misstatements. Instead, if plaintiffs demonstrate that the traded company's securities trade in a relatively liquid, efficient market, a presumption of reliance is applied. Blackmun justified the fraud on the market presumption in part based on the presence of a growing empirical economic literature in support of the Efficient Capital Markets Hypothesis (ECMH). While debate exists as to the validity of the ECMH, Blackmun justified applying the fraud on the market presumption as follows: “Presumptions typically serve to assist courts in managing circumstances in which direct proof, for one reason or another, is rendered difficult.” Several variants of the ECMH exist. For purposes of the fraud on the market presumption, the most important (and empirically defensible) variant is the semi-strong version of the ECMH that holds that securities prices incorporate all publicly available information on the traded company.

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  Economic Analysis of Legal Disputes and Their Resolution

  Robert D. Cooter and Daniel L. Rubinfeld

  Economic thought about law old, but the economic analysis of law, which relies on formal models, is new. A little over 30 years ago, economics was relegated by lawyers to the technical role of providing expert advice on a relatively narrow set of laws in such fields as antitrust and labor. There were no journals devoted to the economic analysis of law, it had no place in the first-year curriculum at American law schools, and few American law schools allocated a full-time faculty position to a pure economist. From its modest beginnings in the 1960s, the economic analysis of law became an intellectual fad in the 1970s. The fad is over, but the continuing progress of the subject remains impressive. There are now four journals devoted to the economic analysis of law, articles using this approach appear frequently in the major law reviews, economic arguments and perspectives are often developed in the first-year law courses, and each of the major law schools has at least one economics PhD on its faculty. Like the rabbit in Australia, the economic analysis of law found a vacant niche in the intellectual ecology, and filled it rapidly. The vacancy was created in part by the inability of legal theory to provide sufficient guidance for American courts that were increasingly involved with policy questions. Policy-making courts need a behavioral theory to predict responses to changes in law and to evaluate these responses systematically according to a normative standard. Economics was able to provide both the behavioral theory and a normative standard that legal theory lacked. The behavioral theory treats laws, like prices, as incentives for behavior. It has been well received, although controversy continues concerning the responsiveness (or lack of it) of poorly informed and possibly irrational actors. The normative theory of efficiency is relatively uncontroversial (Who favors wasting money?) as a broad guide to policy. But, controversy is abundant when efficiency is seen as dominating other norms of fairness and justice. The economic analysis of law, having secured a place in mainstream North American institutions of legal education, is influential but controversial, which is the most a body of ideas can attain in a profession of advocates. It seems that the acceptance of economic theory into law has been eased by structural similarities between economics and law. For example, the “reasonable man” of the law is not very different from the “rational man” of economics. The law's search for a fair division of the burdens of accidents is not very different from the economist's concern for the efficient allocation of risk. All substantive areas of law have a common concern with the processes by which legal disputes get resolved, which is the subject of this article. The existing corpus of economic literature on courts is modest, but understanding the litigation process has become important, even urgent, as courts intrude more forcefully upon resource allocation. The number of trials, their cost, and the size of awards are unprecedented. To illustrate, civil cases tried in federal courts tripled between 1975 and 1985, and an $11 billion judgment against Texaco forced one of America's largest corporations to file for reorganization through bankruptcy. The related costs of litigation are known to be large, although difficult to quantify. This review consists of four parts. Part I focuses on the application of economic tools to the study of courts and outlines the chronology of a legal dispute. In our framework, legal disputes are resolved at various stages of a sequential decision-making process in which parties have limited information and act in their own self-interest. Part II reviews the predictions obtained from modeling these decisions, and Part III discusses their normative significance. Part IV contains a conclusion that assesses the progress and promises of the subject.

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  The Inverse Problem of Evolving Networks—with Application to Social Nets

  Gábor Csárdi, Katherine J. Strandburg, Jan Tobochnik, and Péter Érdi

  Many complex systems can be modeled by graphs. The vertices of the graph represent objects of the system, and the edges of the graph the relationships between these objects. These relationships may be structural or functional, according to the modeler’s needs. Following scientific convention, in this paper we assume that all important information about a given system is encoded in this simple model; more precisely, in an attributed graph, where the vertices and edges may possess labels from a given alphabet. Let us give a few examples. In a citation network of scientific papers, the vertices model the papers, the edges the citations between them; the vertices can be labeled by the date of the paper, its authors, and probably a list of keywords. By including these and only these properties in the model, we implicitly neglect everything else, such as the title of the paper and the nationality and gender of the authors. In a network of airline flights, the vertices “are” airports and the edges represent direct flights between them. The vertices might be labeled with each airport’s number of terminals and home country, and the edges with the airlines and possibly the flight time. In a neural network model of synchronization in the hippocampus, one usually has to distinguish between pyramidal cells and interneurons; here the edges are the synapses from the presynaptic cells to the postsynaptic ones. Furthermore, the synapses can be excitatory or inhibitory. In this paper we study network evolution. For us, this term means that the structure of the networks, in other words the modeled complex systems, change in time. In the citation network, new papers are published and make new citations to other papers. In the airline network, new airports might be built or old ones might be shut down, new flights introduced between two already existing airports, or conversely, underused flights might be removed. In the neural network example, network evolution means the ontogenesis of the hippocampal structure. In other words, the evolution of a network involves the addition and/or deletion of edges and vertices. We intend to model these kinds of phenomena, by using a discrete time, stochastic framework. We are particularly interested in the inverse problem: what is the best description of the evolution of a given network, or set of networks, in a well-defined mathematical framework? This is a data-driven approach; one can even interpret it as experimental science: we make experiments on the networks to see how they behave, although our possibilities are often quite limited. For example we cannot change the flight time of an “edge” just to see how the network will react. If, however, such an event has already happened for some particular reason, we are able to observe one possible reaction. Put a different way, in our approach the input is the data collected about the evolution of a network, the output is a set of parameters for a stochastic model framework. In our case, the parameters are so-called kernel functions. This chapter is organized as follows. First, we define the stochastic kernel-based framework in Sect. 2 and formalize the inverse problem. In Sect. 3 we show two methods for estimating kernel functions, the frequentist and the maximum likelihood methods. In Sect. 4 we show some possible applications of the methodology.

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  Moore v. East Cleveland: Constructing the Suburban Family

  Peggy C. Davis

  This story, set in the early 1970s, has three central characters. The first is Inez Moore, an African-American grandmother. The second is East Cleveland, a deteriorating city of approximately 40,000 residents, lying between Cleveland, Ohio and the more stable suburban city of Cleveland Heights. The last is the Supreme Court of the United States. These characters converged in Moore v. City of East Cleveland, which held that the Due Process Clause protects not only the traditional nuclear family, but also members of extended households—including grandparents and their grandchildren—who live with one another "for mutual sustenance and to maintain or build a secure home life." As we shall see, Moore also raised hard, enduring questions about the authority of local governments to make decisions on behalf of their communities and about race and social class in the United States. But before getting to all of that, let me develop each of the characters a bit.

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  Toward a Relational Constitutionalism

  Peggy C. Davis

  The South African Constitution explicitly instructs its interpreters to look to the rulings of other nations and to those of international tribunals for guidance. This cosmopolitan stance is an admirable example of the wisdom of constitutional judgments in the new South Africa. Taking such a stance, I dare say that you will find a great deal to emulate—in the United States and elsewhere. But in taking this stance you will, I imagine, draw as much wisdom from the mistakes of other nations as from their successes. Justice Ackermann, whose work is honoured here, has described South African constitutionalism as appropriately 'reactive' to the history of apartheid. But negative lessons are not only home-grown. In a cosmopolitan effort to give meaning to such notions as liberty, equality and human dignity, it is appropriate to be sensitive and reactive to the limitations of others' visions. South Africa is as much the pioneer as the follower in our shared quest for constitutional democracy, and so we will all profit as it exposes and corrects for the blind spots of other jurisdictions. Although there is much to be proud of in the United States constitutional tradition, I invite your attention to two areas in which our constitutional vision seems to me deficient and South Africa's; seems superior. Reading the work of Justice Ackermann and other participants in the development of the emerging constitutional tradition in South Africa, it is difficult to avoid the thought that the United States' constitutional vision is deficient in its failure to develop a concept of human dignity that can inform the elaboration of human rights. I argue that this failure has to do with our inability to understand and learn from the reactive character of our constitution as reconstituted after the Civil War and the abolition of slavery. I honour South Africa's ability to face and learn from past abuses. And I encourage reactive constitutionalism—in the United States as well as in South Africa—as a way of understanding the importance of dignity to democratic theory. Reviewing South Africa's constitutional jurisprudence also prompts the thought that we in the United States have failed to make a sufficient constitutional commitment to nurturing and giving resonance to multiple democratic voices. I argue that the just elaboration of constitutional principles requires attention—of the kind the South African Constitutional Court has paid—to multiple voices and perspectives. And, relying on a feminist critique of patriarchy and other forms of subordination, I discuss the difficulty—and the crucial importance—of recognizing and nurturing political voices that might otherwise remain subordinate. My arguments in each of these areas are supported by comparison of the different analyses of the South African Constitutional Court and the United States Supreme Court of the constitutionality of laws criminalizing consensual sodomy.

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  Intellectual Property Law and the World Trading System

  Rochelle C. Dreyfuss

  As conflict and cooperation among states turn to an ever greater extent on economic issues, this fully updated and expanded second edition presents a comprehensive exploration of the legal foundations of the international economy. It not only examines the current status of the law, but also explores the origins, political tensions and development of outcomes that are often difficult to comprehend. Lowenfeld examines the major elements of economic law in the international arena including the World Trade Organization and its antecedents; dumping, subsidies, and other devices that alter the market; the International Monetary System, including the collapse of the Bretton Woods system; the debt of developing countries; the law of foreign direct investment, including changing perceptions of the rights of host states and multinational enterprises; and economic sanctions. The book also contains chapters on competition law, environmental law, and new chapters on intellectual property and the various forms of arbitration; demonstrating how these subjects fit into the framework of international economic law. Professor Lowenfeld brings to his task a lifetime of practice and teaching experience to produce a book that will be of use to international lawyers and non-specialists alike.

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  Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity

  Rochelle C. Dreyfuss

  Trademarks and free expression are on a collision course. In the early 1990s, I wrote two articles examining the expansion of trademark law from its core focus on confusion about marketing signals, to cover such matters as dilution, implications of sponsorship, and rights of publicity. I suggested that these expansions were putting increasing pressure on speech interests. It seemed to me that signifiers drawn from mythology, history, and literature were losing their potency in a globalized environment in which the populace lacks a shared vocabulary or much interest in the classics. I posited that well-known marks were taking the place of these references. Used as metaphors, similes, and metonyms, trademarks were becoming the lingua franca of the communicative sphere. I was concerned, however, at the extent to which these “allusive uses” were coming under private control: judges were jumping ever more quickly from recognizing the value in a mark, to allowing the mark’s proprietor to capture that value. I thought that, in fact, the significance of a mark was in large part generated by its audience, through the way in which it was recoded and recontextualized. Accordingly, it was incumbent upon courts to understand how signals functioned and to recognize the dual provenance of their value. While it was appropriate to give proprietors marketing control—rights over signaling value—other aspects—expressive value—belonged to the public. I admitted that separating these two dimensions would sometimes be difficult, but suggested techniques to make that division workable. Over the last decade, a solution based on separating the spheres in which symbols operate has become increasingly less tractable. On the trademark holders’ side, interest in and power over marks have expanded considerably. Proprietors use trademarks to maintain exclusivity after patents and copyrights have expired and trade secrets have been exposed; they also use them to leverage reputation across product categories. They engage in “lifestyle marketing”—offering goods across a range of sectors. In some cases, trademarks take on a life of their own: merchandising a mark through various licensing ventures can sometimes earn as much as the sales of the underlying product. Trademark holders have had remarkable success developing law responsive to these concerns: a range of new concepts, such as initial-interest and post-sale confusion; a new focus on trade dress protection; and new and improved rights of action, including federal dilution protection (in the European Community as well as in the United States) and cybersquatting prohibitions (emanating both from law and from contractual obligation). Parallel developments are unfolding at the international level: it is now mandatory for the members of the World Trade Organization to recognize geographical indications and to offer enhanced protection to marks that are well known; accumulating soft law suggests the scope of this protection is quite broad and may encompass protection against dilution. Through a combination of soft law, multilateralism, bilateralism, and old-fashioned industry pressure, less conventional signs, such as scents, sounds, and color, are also becoming the subject matter of trademark protection. And moves are afoot to create new rights to control traditional knowledge, including tribal symbols. Public use of trademarks has also multiplied. Fans have always put marks on tee shirts, sports caps, bumper stickers, buttons, mugs, posters—even birthday cakes—to express their affiliation with schools, teams, social organizations, and products. Some of these usages have become less complimentary. As one South African judge put it, tee shirts decorated with trademarks are now a focus for “young irreverent people who enjoy the idea of being gadflies.” Nor is “gadflying” as limited as was once the case. Digitization reduces the cost of using trademarks in traditional media while the Internet offers fresh opportunities—the chance to create widely available websites to sell marked products or to use trademarks artistically, politically, and humorously, or to critique the trademark holder’s activities, politics, or products. Most important, the dichotomy between the marketing and expressive spheres, which was always somewhat indistinct, has collapsed entirely. In the absence of a means for communicating directly with customers, trademark holders use their marks to send not only traditional messages about the attributes of their products (source, quality and the like), but also a range of other, more expressive (and, as Jessica Litman says, “atmospheric”) kinds of information. “Life style marketing,” after all, requires transmission of lifestyle information—information about social values, ideals, and world-view. Other trademark usages are likewise becoming highly complex. Comparative ads, a staple of U.S. marketing, have spread to other countries. Trade dress and trademarks are particularly useful in such ads because they can create forceful images and sound bites, calling one product to mind while marketing its rival. Trademarks have also taken on a wholly new role: on the Internet, they are navigation tools, used by consumers to find merchants and by merchants to find consumers. Some shoppers look for goods on the Internet by using the trademark as a domain name. If they enter it correctly, they will likely find the trademark holder’s website, but they may also discover that the same mark is used by merchants in remote locations, or incorporated into several Internet addresses. Even if they reach the right trademark holder’s website, they may be treated to a competitor’s ad, set to pop-up when the site is accessed. And, of course, if the mark is typed incorrectly, the consumer may encounter a “typosquatter”—the site of a rival, perhaps, or a griper. Another strategy is to “google” the trademark (enter it into a search engine); such key-word searches will present the consumer with a list of sites, some of which may hawk alternative products—a rival may be gaming the algorithm of the search engine or the listing-cum-ad may be keyed to appear whenever a search on the mark is conducted.

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  Altruism and Valuable Consideration in Organ Transplantation

  Richard A. Epstein

  The present legal regime for organ transplantation in the United States was created by the National Organ Transplant Act (NOTA) of 1984, which includes an uncompromising prohibition of organ transplants performed for "valuable consideration." With that prohibition, NOTA has enshrined altruism as the watchword of the transplantation establishment. Thus, the Transplantation Society proclaims, "Organs and tissues should be freely given without commercial consideration or financial profit." Unfortunately, the chief consequence of this policy choice is a persistent and growing shortage of transplantable organs. Even detractors of market transactions in organs grudgingly recognize that exhortation and other half-measures have not shortened the ever-longer queues for kidneys and other transplantable organs. Not surprisingly, the growing kidney shortage has spurred demands for some liberalization of NOTA's prohibition by allowing, at the very least, a regulated market that provides some compensation for living transferors (who can no longer be called donors). According to Sheila and David Rothman, "The idea of establishing a market for organs, although certainly not new, is now attracting unprecedented support." Some proponents of compensation for organ transplants have urged that the government purchase organs at stipulated prices and then distribute them in accordance with standard United Network for Organ Sharing (UNOS) criteria. Others, like myself, are willing to let prices vary freely in an open-market setting. Between these two positions are still other proposals that rely on tax or in-kind benefits (such as free health care to organ donors) to reduce or eliminate the current shortage. Nevertheless, defenders of the status quo raise a variety of ethical and practical objections to introducing any financial incentives. Their reform agenda stresses finding new incremental methods to increase the number of donated organs, whether through educational programs, the use of riskier (often infected) organs, or a redefinition of "death" (to include victims of fatal cardiac arrest as well as the brain dead) to expand the pool of organs for deceased-donor transplantation. Opponents of incentive programs insist that their imperfections, evident in developing nations such as Pakistan and India, will be replicated in the United States. They warn of the risk of transplanting diseased organs from paid donors who lie about their medical status to make the sale. And, finally, echoing the earlier work of Richard Titmuss on blood donations, they denounce paid transplants for impoverishing ignorant suppliers of organs and crowding out altruistic transactions. It is possible even to point to cases of fraudulent refusals by transplant intermediaries to pay for harvested organs on the bald assertion that the organs were not of usable quality. More philosophical critics fear that organ sales will lead to the commodification of the human body, a diminished respect for the voluntariness of consent, a compromise of individual autonomy, and a reduced level of emotional support within families. These objections are all overstated. None justifies NOTA's wholesale ban on organ transactions. Nor do they justify the large expenditures incurred in ineffective attempts to expand the organ supply within the NOTA framework. This chapter explores the philosophical and economic weaknesses of the prevailing legal regime for organ transplantation. In it I examine the inconsistent attitudes toward altruism that characterize current legal policy, and consider the choice between regulated and unregulated markets, advancing reasons to prefer the latter. Next we give some estimate of the value of a serviceable kidney and the net social gains we can expect from allowing kidney exchanges. Finally, we examine and reject any claim that financial incentives are self-defeating because they will "crowd out" voluntary donations.

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  Unilateral Practices and the Dominant Firm: The European Community and the United States

  Richard A. Epstein

  In this book, Stephen Copp has brought together some of the world's leading figures in the field of law and economics to discuss questions that are central to our understanding of how a free-market economy operates. Though most people accept that a free economy cannot exist in a legal vacuum, important questions about how systems of law come into being and what form they should take remain in dispute. The authors shed light on some of these issues, such as whether common law systems are better than codified law systems; the relationship between natural law and government law; whether systems of law evolve within societies or are imposed from above by government; and, the role of human rights, as guaranteed by constitutions.After examining these questions, the authors then proceed to look at specific problems that are frequently disputed by economists - such as the role of competition law; the relationship between law, regulation and economics; and, how the law can protect the environment without onerous regulation. This collection is an important contribution to the literature in the field of law and economics. It is important both for economists who wish to understand more about the origins and purposes of law and regulation, and for lawyers who need to understand more about the economic foundations of sound legal systems.

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  Rebuilding the Law of the Workplace in an Era of Self-Regulation

  Cynthia Estlund

  As the New Deal model of industrial self governance in the United States has grown old and ossified, the problems to which collective bargaining was to be the answer have not disappeared. Nor has the law ceased to grapple with them. On the contrary, the role of external law—of courts, of legislation, and of regulatory bodies—has burgeoned as the New Deal system of internalised lawmaking and dispute resolution has shrunk. Since the 1960s, the New Deal collective bargaining system has been supplemented, and largely supplanted, by other models of workplace governance: a regulatory model of minimum standards enforceable mainly by administrative agencies (think of OSHA and the minimum wage laws) and a rights model of judicially enforceable individual rights (think especially of anti discrimination law). These two bodies of law, which make up much of what we in the US call ‘employment law’, each mobilised institutions and resources that were not central to the collective bargaining model constituted by ‘labour law’. The regulatory model harnessed the coercive power and comprehensive reach of the government, while the rights model made courts central to the articulation and enforcement of employee rights, and tapped into the self interest and indignation of aggrieved individuals and the professional and entrepreneurial energies of their attorneys. Much as they resisted the constraints of collective bargaining, employers have fought back against the burdens of regulatory compliance and of litigation; they have proclaimed the virtues of deregulation and decried the ‘litigation crisis’. But challenges to the efficacy of regulation and litigation of workplace rights and standards have come not only from employers but from scholars and employee advocates as well. Observers from a range of perspectives have argued that the post war regime of command and control regulation is losing its grip in the face of rapidly changing markets, technology, and firm structures; that civil litigation is a costly, slow, and unwieldy mechanism for securing employee rights.

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  Commentary: Tolerant Institutions

  John A. Ferejohn

  Toleration on Trial offers the only multidisciplinary study available on the issue of toleration, bringing together political psychologists, philosophers, sociologists, Islamic scholars, and political theorists to examine the most pressing debates in the field. The volume addresses the toleration question from a number of angles: toleration and its application to gay rights; Islam and toleration; institutional, ideological, and psychological preconditions for its practice; and philosophical and conceptual arguments for the principle of toleration. The common thread running throughout the volume is the core question: Is toleration primarily a product of institutional arrangements, or is it an attitude of individuals? To answer this adequately, the authors believe that a contemporary analysis of the possibility, significance and requirements of toleration must be fully cognizant of the democratic, or more accurately—politically mobilized—background in which toleration becomes a difficult issue. Conflicts between deeply divided groups within nations and between groups across political boundaries pose the issue of threat and risk to a practice or way of life that many peoples find difficult to accept. Can the idea and practice of toleration manage these in politically and ethically defensible ways? These essays address various aspects of the aim to establish or strengthen toleration among politically mobilized groups, in a context of contemporary democratic challenges.

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  Conclusion: The Citizens' Assembly Model

  John A. Ferejohn

  Since the time of Ancient Athens, students of democracy have been skeptical that elections are a way of implementing democracy, at least if democracy requires something like government “by” the people rather than “of ” or “for” them. There are several grounds for this skepticism: first, elections may select unusual people—better, more able, or merely more ambitious leaders—and thereby exclude ordinary people from a regular role in government. Second, whether or not elected leaders are especially skillful, those elected to office tend to become a professional class with knowledge and interests separate from those of ordinary people. The Athenians themselves thought that lottery was the more democratic way to fill office, as it ensures that anyone who wanted to serve would be able to do so. Indeed, Aristotle defined democracy as a system in which people take turns ruling: where each rules and is ruled in turn (Aristotle 350 bc [1963]: 1317b). Nowadays of course, every state is supposed to be a democracy—in the sense of drawing its authority to rule from the people—and modern reaction to this expectation has generally been to tone down expectations for democracy: to settle for electoral or representative democracy as the only feasible kind of democracy in modern circumstances. So, rather than the people ruling directly, elected elites rule on their behalf.

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  Choice of Forum and CISG: Remarks on the Latter's Impact on the Former

  Franco Ferrari

  It is commonly understood that the United Nations Convention on Contracts for the International Sale of Goods (CISG) constitutes a “substantive law convention” and that, among other topics not dealt with, it does not (directly) set forth rules on jurisdiction. This means, for instance, that whether the parties’ agreement as to choice of forum is at all admissible is not an issue governed by the CISG but rather by the applicable domestic law. This, however, does not mean that the CISG lacks any impact on the choice of forum. There are many reasons why lawyers should take into account the CISG when choosing the forum in relation to international contracts for the sale of moveable goods. As this chapter will demonstrate, it is knowledge of the CISG and the way it is being interpreted and applied that allows lawyers to choose the forum that is most beneficial to their clients interests, thus allowing them to maximize their clients ’ chances of success in litigation. This is why it is rather surprising that some scholars have suggested that one of the advantages of the CISG lies in its prevention of “forum shopping,” i.e., of what has been defined both by courts and commentators as the lawyer’s activity of seeking the forum that is most beneficial to its client’s interest.

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  Hadley v Baxendale v Foreseeability Under Article 74 CISG

  Franco Ferrari

  This book is a collection of essays examining the remedy of contract damages in the common law and under the international contract law instruments such as the Vienna Convention on Contracts for the International Sales of Goods and the UNIDROIT Principles of International Commercial Contracts. The essays, written by leading experts in the area, raise important and topical issues relating to the law of contract damages from both theoretical and practical perspectives. The book aims to inform readers of current developments, problems, trends and debates surrounding contract damages and reflects an ongoing dialogue on damages among representatives of common law, civil law, mixed and trans-national legal systems. The general issues addressed in the collection include the purpose and scope of damages, the measures of damages, recoverability of losses, methods of limiting damages and the assessment of damages. A special emphasis is placed on the examination of the role of gain-based damages, the meaning and definition of loss, the recoverability of damages for injury to business reputation, the recoverability of legal fees, the rules of mitigation and foreseeability, the dilemma between the ‘abstract’ and 'concrete' approaches to the calculation of damagesand the relationship between changes in monetary value and the assessment of damages.

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  Have the Dragons of Uniform Sales Law Been Tamed?: Ruminations on the CISG’s Autonomous Interpretation by Courts

  Franco Ferrari

  Professor Albert H. Kritzer is Executive Secretary of the Pace Institute of International Commercial Law, author of the International Contract Manual, and Editor of the award winning database at www.cisg.law.pace.edu. He is the recipient of the 1998 Award for Distinction in International Affairs of the New York State Bar Association, has pioneered countless important projects in international commercial law, and inspired and nurtured generations of researchers. This book, which is published on the occasion of his eightieth birthday in the continental European tradition of a Festschrift, celebrates Albert and his profound influence on international commercial law and the world trade community. Albert's favourite concepts are friendship and sharing—and so it is fitting that scholars and friends from around the world honour this great man by sharing contributions written specifically for him. Albert has devoted his academic career to promote what this book sets out to do: Sharing International Commercial Law across National Boundaries. This Festschrift expresses the gratitude of many who have reaped the benefits of Albert's sharing, and who wish to share something in return.

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  The CISG and Its Impact on National Legal Systems - General Report

  Franco Ferrari

  The 1980 United Nations Convention on Contracts for the International Sale of Goods (here in after: CISG) is generally considered a success, so much so, that one commentator even hailed it as “arguably the greatest legislative achievement aimed at harmonizing private commercial law”. What, however, is the measure of that success? Is it the number of contracting States which is indeed impressive, the CISG being in force in 70 countries—with more countries to enter the CISG into force shortly? Is it the percentage of world trade to which it applies, which, one must admit, is remarkable, since the CISG—supposedly—governs two-thirds of world trade, if not more? Or is it the fact that the CISG is increasingly being applied both by state courts and arbitral tribunals?

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  Competition Law

  Eleanor M. Fox

  Competition law regulates business practices and transactions that create or abuse market power and interfere with the free play of market forces. In the United States, this body of law is called antitrust law. The law was enacted at the end of the nineteenth century in response to the formation of trusts by Rockefeller, Morgan, and others to control major sectors of the American economy, such as railroads, steel, oil, farm machinery, sugar, and banking. Until the end of World War II, the United States alone was a prominent enforcer of antitrust law. At the end of the war, in connection with US assistance programmes, Germany and Japan adopted antitrust law as an antidote to political authoritarianism. In the 1950s, when the states of Western Europe created a common market designed to eliminate government-imposed barriers to trade, the blueprint included a common competition policy to facilitate the creation of a common market and, in particular, to prevent a redivision of markets by commercial actors. In the late 1980s Communism fell in the Soviet Union and Central and Eastern Europe, and the newly democratic states adopted market systems. The economic reforms included adoption of competition laws in order to check abuse of private power, to limit privilege, and to open markets to trade and competition. The end of the Uruguay Round, with yet lower barriers to world trade, increased the visibility of remaining trade barriers and fuelled the demand for open markets free from private as well as public restraints. Approximately 100 countries now have competition laws, most of which were adopted since 1990. These include South Korea, South Africa, Nigeria, Zambia, Vietnam, Peru, Barbados, Indonesia, Brazil, Mexico, Russia, Malta, Bulgaria, Croatia, and Jamaica, to name a few. Competition policy has taken a prominent place among international economic concerns. Markets commonly transcend national borders, raising the question whether there is a need for a supranational framework. Multinational networks and other fora for cooperation across frontiers attempt to bring coherence to market problems of global dimension. This chapter explores, first, the origins and evolution of competition law, second, the reach of national law to foreign actors and transactions, and third, substantive and procedural rules of the American and European systems. The last two sections of the chapter explore bilateral and multilateral initiatives to improve the competition process in a global economy.

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  The Efficiency Paradox

  Eleanor M. Fox

  This paper defines various concepts of efficiency and then demonstrates how conservative economic approaches have led to wrong results in several important cases. It asks: What is efficiency? Can antitrust law produce efficiency, and how does it try to do so? It observes that one way antitrust pursues efficiency is by choosing a proxy; notably, either trust in the dynamic of the competition process or trust in (even) the dominant firm. By case examples, it shows the effect of conservative economics in choosing as the proxy trust in the dominant firm. It argues that this phenomenon has produced the Efficiency Paradox: In the name of efficiency, conservative theories of antitrust cut off the most promising paths to efficiency. It is suggested that we can eliminate the Efficiency Paradox by readjusting the pendulum to give more regard to the incentives of mavericks and challengers and less regard to the freedom and autonomy of dominant firms.

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  The Market Power Element of Abuse of Dominance—Parallels and Differences in Attitudes—US and EU

  Eleanor M. Fox

  US law prohibits monopolization and attempts and conspiracies to monopolize. EU law prohibits the abuse of a dominant position. In the 21st Century, these concepts are largely substitutes for one another. Both are meant to proscribe anticompetitive conduct by firms with dominance or monopoly power. On both sides of the ocean, mere possession of monopoly power is not in itself an abuse or violation, although in earlier times US courts and agencies flirted with the notion that possession of monopoly power was an actionable offense, and in the famous Alcoa case the Second Circuit came close to so holding. This essay reflects principally on contemporary parallels and differences between US and EC law. On both sides of the ocean, certain threads have long since been woven into the law, and therefore the essay begins with history. Second, the essay reflects on issues of proof, thresholds and presumptions. Third, the essay describes and assesses a draft document by an ICN working group concerning suggested best practices for identifying dominance/substantial market power. Finally, it concludes with a note on the integral nature of the market power/market effect analysis.

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  Lassiter v. Department of Social Services, 452 U.S. 18 (1981)

  Martin Guggenheim

  One of the most important rights protected by the Constitution is the right to raise one's children free from state interference. For this reason, when the state seeks to interfere with parents’ right to custody of their children, one should expect that parents would be given all of the procedural rights guaranteed in the Constitution. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), a North Carolina trial court permanently terminated a parent's rights to her children after a trial at which she was obliged to represent herself without counsel because she could not afford one. The right to counsel is explicitly guaranteed in the Sixth Amendment, which applies only to criminal cases. When the Supreme Court first ruled that states were obliged to provide indigent defendants in criminal cases with free court-assigned counsel in Betts v. Brady, 316 U.S. 455 (1942), it held that the Constitution does not require that every defendant be given counsel. Instead, it held that there may be cases in which the failure to appoint counsel would result in a denial of due process. This ruling meant that courts did not have to appoint counsel but that there was some risk that a conviction would be reversed if the defendant could show that the failure to appoint counsel resulted in an unfair trial. Betts was overruled in the landmark Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon held that the Betts rule proved to be ineffectual and that the better rule required the automatic appointment of counsel for defendants, at least when they may be subject to a sentence of imprisonment upon conviction.