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Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation

Vicki L. Been

This title provides the law student with an enriched understanding of 12 leading property cases. It focuses on how lawyers, judges, and policy factors shaped the litigation, and why the cases have attained noteworthy status. The volume is suitable for adoption as a supplement in a first-year property course, or as a text for an advanced seminar.
China's Human Rights Lawyers: Current Challenges and Prospects

Jerome A. Cohen

In 1977 Victor H. Li published a stimulating book entitled "Law Without Lawyers." China's Communists, he suggested, because of their country's distinctive tradition and culture, might blaze a new trail toward modernisation, one that, unlike their former Soviet model, had little need for lawyers. Yet Deng Xiaoping and his colleagues soon demonstrated that they thought otherwise. After Chairman Mao's death ended the chaos of the Cultural Revolution, China's new leaders altered the Soviet model for economic development, but resurrected its political-legal system, including its reliance on “socialist lawyers.” Indeed, during the past three decades, the post-Mao leadership has increasingly expanded the roles of lawyers to help settle disputes, promote the evolving “socialist market economy,” foster international business cooperation and legitimate the punishment of serious offenders. In principle, contemporary Chinese lawyers are no longer Soviet-style “state legal workers” but independent professionals tasked with protecting citizens, including those at odds with the state. In fact, however, although their numbers, education and responsibilities have burgeoned, Chinese lawyers, like their Soviet predecessors, remain subject to significant restraints. The Law on Lawyers amended in 2007 seemed to promise greater autonomy to human rights lawyers. Yet their plight has actually worsened in the 20 months since the 17th Communist Party Congress. The reconfirmed Hu Jintao-Wen Jiabao leadership placed veteran Party officials, without legal education or experience but with a strong police background, in charge of the Ministry of Justice and the courts as well as the Central Party Political-Legal Committee that instructs all legal institutions. These new appointees seem determined to eviscerate the country's “rights lawyers,” who constitute a tiny fraction—perhaps one percent—of China's almost 150,000 licensed lawyers. Local officials under the Ministry of Justice, and the local lawyers associations they control, quietly press activist lawyers not to participate in a broad range of “sensitive” matters or at least to follow their “guidance.” Such cases include not only criminal prosecutions of alleged Tibetan or Uyghur “separatists,” democracy organisers and Falun Gong or “house church” worshippers, but also claims against government for many kinds of misconduct and corruption, birth control abuses and forced eviction and relocation. Even civil cases involving land transactions, environmental controversies, collective labour disputes and compensation for tainted milk and earthquake victims are off limits or controlled. The refusal to allow famous lawyer Mo Shaoping to defend public intellectual Liu Xiaobo against criminal charges arising from Charter '08's call for political reform is only the best-known recent example of this interference. Their license to practice law is frequently suspended or, as in many current instances, their local lawyers' association simply fails to give the endorsement required for annual license renewal. Their law firms are coerced to dismiss them or risk being closed, as some have been, and Party organisations within law firms have been reinforced. Lawyers who fail to heed such “advice” suffer many sanctions. Often, ex-lawyers who remain undeterred from assisting controversial clients are prosecuted and sent to prison by authorities who stretch the vague language of criminal law to cover their actions. Unfrocked Beijing lawyer Gao Zhisheng was convicted of “inciting subversion.” Former Shanghai lawyer Zheng Enchong served three years for “sending abroad state secrets.” Shenzhen lawyer Liu Yao's four-year sentence for “destroying property” was only reduced after an extraordinary petition from over 500 lawyers persuaded the authorities to end his 16-month detention. In each case conviction means permanent disbarment and loss of livelihood. Moreover, even self-taught “barefoot lawyers,” who are not licensed but play an important role in the countryside, have been sent to long prison terms on trumped-up charges, as in the case of the courageous blind man, Chen Guangcheng. Perhaps most troubling is the frequent physical intimidation of “rights lawyers.” Today is the 156th day since the “disappearance” of Gao Zhisheng. His torture while previously detained makes many fear that he is now dead, although the Chinese Government ridiculously claims he is free on probation. Many lawyers, while seeking to meet with clients, have been beaten by police and their thugs. The well-known professor/activist Teng Biao not only lost his license to practice law but also was kidnapped and threatened by police. I can testify from various personal experiences that many “rights lawyers” are closely monitored and restricted in their movements. Since his release from prison, Zheng Enchong's life has been a nightmare of incessant summoning for questioning, illegal house arrest and casual police beatings, in addition to harassment of his wife and daughter. When six policemen barred me from visiting him and I asked for their legal authority, they merely kept repeating “We are police.” A sequel to Victor Li's book might appropriately be entitled “Lawlessness Without Lawyers.”
Introduction

Joshua Cohen and Thomas Nagel

When John Rawls died in 2002, there was found among his files a short statement entitled “On My Religion,” the second of the two texts included in this volume. He had apparently written it in the 1990s, not for publication but perhaps for the interest of family and friends—though he did not distribute it. Rawls describes the history of his religious beliefs and attitudes toward religion, and refers to a period during his last two years as an undergraduate at Princeton (1941–42) when he “became deeply concerned with theology and its doctrines,” and considered attending a seminary to study for the Episcopal priesthood. But he decided to enlist in the army instead, “as so many of my friends and classmates were doing.” By June of 1945, he had abandoned his orthodox Christian beliefs. With characteristic tentativeness and a disclaimer of self-knowledge, Rawls speculates that his beliefs changed because of his experiences in the war and his reflections on the moral significance of the Holocaust. When he returned to Princeton in 1946, it was to pursue a doctorate in philosophy. Friends of Rawls knew that before the war he had considered the priesthood, but they did not know of any surviving writings that expressed his religious views from that period, and “On My Religion” does not mention any. Not long after Rawls’s death, however, Professor Eric Gregory of the Princeton religion department made the startling discovery that just such a document, the more substantial of the two texts included here, was on deposit in the Princeton library. A Brief Inquiry into the Meaning of Sin and Faith: An Interpretation Based on the Concept of Community is Rawls’s senior thesis, submitted to the philosophy department in December 1942, just before the accelerated completion of his bachelor’s degree. Gregory came upon it while idly browsing the catalogue for senior theses by famous Princeton graduates, but when he ordered a copy and read it, he immediately recognized its importance and decided to write about it. Gregory has discovered that the two readers of the thesis were Walter Stace and Theodore M. Greene, and that they gave it a grade of 98 out of 100. Rawls also thanks the Reformation historian E. Harris Harbison at one point in a footnote. But it has not been possible to identify Rawls’s adviser. (Stace was his adviser for the Ph.D. thesis.) In 2006 Gregory approached John Rawls’s widow, Margaret Rawls, with the suggestion that the thesis be published. This presented Mrs. Rawls and her fellow literary executor, T. M. Scanlon, with a difficult decision. Another copy of the thesis had remained in Rawls’s possession, the one he got back from the two faculty readers with their initialed comments in the margins. On deposit in the Rawls archive at the Harvard library, it had not yet attracted attention. Now copies were made and circulated to several friends and former students of Rawls. The period of Rawls’s final illness and the years since his death have seen the publication of several works brought to completion with the help of others, but they are all books to which he had given his approval. This was entirely different: a youthful work written under pressure of time to meet a college requirement, meant only for the eyes of two faculty members, and expressing views that he had long since abandoned. It seemed clear that Rawls had never imagined that the thesis might one day be published, and that if the question had been put to him, he would certainly have refused. That was a serious reason against publication, and in favor of leaving the thesis accessible only by the much more limited and cumbersome route of consultation through the Princeton and Harvard libraries. Another question was whether, apart from what Rawls would have wished, publishing the thesis would be a disservice to him, in light of its unevenness and occasional lack of polish. While there was some difference of opinion over how much weight should be given to the generally acknowledged hypothetical truth that Rawls would not, if asked, have consented to its publication, it seemed significantly less than the decisive weight owed to an actual refusal of consent. And this made it necessary for us to consider more directly whether publication would be consistent with our obligations of loyalty to Rawls and our respect for his memory. A favorable answer to this question comes from the character of the thesis itself. To read it is a moving experience: the thesis is an extraordinary work for a 21-year-old, animated by youthful passion and powerful ethical conviction, often vividly expressed, and informed by erudition and deep philosophical reflection. Though the quality is not uniform (Chapters Two and Three are weaker than the rest), the intellectual force and the moral and spiritual motivation that made Rawls who he is are already there. The thesis was written in the middle of the war that Rawls was about to join as a combatant, and this somber background is palpable through his reflections on Fascism and Nazism. Given the estimable intellectual and personal qualities the thesis displays, making it more widely available cannot be regarded as a disservice to his memory. If publication is not on balance contrary to Rawls’s interest, then it can be justified if it benefits a wider public, and that seems clearly true. Apart from its purely biographical importance, the thesis is a remarkable resource for understanding the development of his thought. Although it can in no sense be presented as a publication of John Rawls, it seems permissible to bring it out as a publication by others of an important piece of writing by John Rawls—comparable to the publication of letters by a writer that shed light on his published work. An alternative was to make the thesis available on the Harvard philosophy department website, but it seemed preferable to bring it out in book form, together with “On My Religion,” and to include some commentary both on its relation to Rawls’s later work and, more important, on its theological content and background. The latter is the particular concern of Robert Adams’s essay in this volume. After extended deliberation the literary executors concluded that publication was warranted, and Harvard University Press accepted the proposal. This book is the result.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
"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.
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.
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.
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.
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.
‘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.
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.
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.