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  Moore v. City of East Cleveland, 430 U.S. 494 (1977)

  Martin Guggenheim

  Even though neither the word parent nor family can be found in the U.S. Constitution, the right of family members to live together is a jealously protected constitutional right developed through a long series of Supreme Court cases. In 1977 Moore v. City of East Cleveland, 431 U.S. 494, joined that list. Inez Moore challenged the constitutionality of an East Cleveland zoning ordinance that restricted the right of people to live together in the same household to family relatives within a certain degree of relationship. Moore had been raising two grandchildren who were the offspring of two of her daughters. The ordinance would have allowed her to raise as many grandchildren as she wished, provided they were siblings of each other. But these grandchildren were cousins and were one degree of separation beyond what the local ordinance permitted. Constitutional challenges to zoning ordinances had been difficult to win ever since the Supreme Court ruled in 1926 in Euclid v. Ambler Realty Co., 272 U.S. 365, that land-use regulations are to be reviewed under the most favorable standard used by courts to uphold challenged laws. Federal courts are loath to second-guess local communities in their efforts to regulate property, believing that local government is in the best position to decide how communities should look. Local zoning ordinances are common throughout the country and usually will be upheld, so long as courts can discern that the ordinance furthers some legitimate public interest. Thus, only a few years before the Court decided Moore, an ordinance that forbid more than three unrelated persons from residing together in the same single-family house easily survived a constitutional challenge brought by college students who wished to live together (Village of Belle Terre v. Boraas, 416 U.S. 1 [1974]).

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  Stanley v. Illinois, 405 U.S. 645 (1972)

  Martin Guggenheim

  In Stanley v. Illinois, 405 U.S. 645 (1972), the state agency responsible for ensuring children's safety and well-being took Peter Stanley's children into custody after learning that their mother had died. Stanley was the children's biological father who, along with their mother, raised the children over an eighteen year period. However, the parents never married, and Illinois law did not recognize fathers of children born out of wedlock as parents with enforceable rights unless the father married the children's mother or secured a court order of paternity. Since Stanley had done neither, Illinois law refused to recognize him as the children's father and proceeded as if the children were orphans. After the Illinois courts declared Stanley's children to be state wards, Stanley appealed to the Supreme Court of the United States. In a landmark decision written for the majority by Justice Byron White, the Court held that Illinois violated Stanley's rights to equal protection of the law by treating him differently than it would have treated the children's mother. The Court held that, at least when they raise their children, fathers of children born out of wedlock must be treated the same way the children's mother would be treated. This was the first time the Supreme Court held that “unwed fathers” had constitutionally protected rights. Prior to this point, virtually all states ignored such fathers and recognized only mothers as legal parents of such children. But the facts of the case made it relatively easy for Stanley to prevail in the Supreme Court because he did much more than sire his children. An important question, which subsequent cases were needed to answer, is whether the U.S. Constitution requires that fathers always be treated as mothers would be or whether it is permissible to distinguish between unwed mothers and unwed fathers based on the relationship they maintain with their children after the children's birth.

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  Hedonic Housing Prices and the Demand for Clean Air

  David Harrison Jr. and Daniel L. Rubinfeld

  This paper investigates the methodological problems associated with the use of housing market data to measure the willingness to pay for clean air. With the use of a hedonic housing price model and data for the Boston metropolitan area, quantitative estimates of the willingness to pay for air quality improvements are generated. Marginal air pollution damages (as revealed in the housing market) are found to increase with the level of air pollution and with household income. The results are relatively sensitive to the specification of the hedonic housing price equation, but insensitive to the specification of the air quality demand equation.

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  Nonqualified Deferred Compensation and the Pre-Statutory Limits on Deferral

  Brant J. Hellwig

  This section introduces the problems relating to the recognition of income and the deferral of income by a cash method taxpayer participating in a nonqualified deferred compensation plan and discusses the enactment of IRC Section 409A to deal with these problems. A taxpayer on the cash receipts and disbursements method of accounting is entitled to defer the recognition of gross income until the income item—whether in the form of cash, property, or services—is actually or constructively received. While this principle appears straightforward enough, it raises a number of questions. First, to what extent should contractual rights to future cash payments be separately regarded as an item of property for income recognition purposes? Furthermore, what rights or elections possessed by the taxpayer are sufficient to place the taxpayer in constructive receipt of future payments? These questions have arisen primarily in the context of nonqualified deferred compensation arrangements. Until Congress stepped into the fray in 2004 with the enactment of IRC Section 409A, the field of nonqualified deferred compensation represented a Wild West of sorts in the tax planning arena. Taxpayers and their advisors pushed the limits of deferral of income recognition offered by the cash method with little in the way of administrative oversight. The goal of their efforts was to secure the future payment obligations to the greatest extent possible while maximizing the control enjoyed by the employee (or other service provider) over the investment of the deferred funds and the date the funds ultimately would be paid—all without subjecting the deferred payments to current taxation. Designing these arrangements entailed navigating a host of doctrines that developed as a means of reasonably limiting the opportunities for deferral under the cash method: (a) the economic benefit doctrine (which was codified through the enactment of IRC Section 83); (b) the constructive receipt doctrine; and (c) the cash equivalency doctrine. This chapter is dedicated to describing these doctrines of income recognition under the cash method and tracing their development to the point of congressional action through IRC Section 409A. A disclaimer is warranted here at the outset: IRC Section 409A changes the results of many of the cases and rulings discussed in this chapter, particularly with respect to salary deferral elections and payment acceleration rights. The statute, however, does not operate as a wholesale replacement of the income recognition doctrines detailed in this chapter. Rather, IRC Section 409A augments those doctrines by triggering current income recognition of deferred payments in certain instances where the taxpayer otherwise would have been entitled to deferral. To the extent IRC Section 409A does not apply to a particular arrangement, the economic benefit doctrine, the constructive receipt doctrine, and the doctrine of cash equivalency remain relevant in determining when the compensation income will be recognized for tax purposes. Although a separate chapter of this treatise is dedicated to IRC Section 409A, this chapter concludes with a brief description of how the legislation augments the underlying doctrines of income recognition. Most deferred compensation arrangements of state and local governments and tax-exempt employers (other than churches) are subject to additional rules under IRC Section 457, and IRC Section 457A provides yet more rules for nonqualified deferred compensation arrangements of certain “tax indifferent parties.”

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  Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings

  Helen Hershkoff

  More than a half century ago the Universal Declaration of Human Rights defined education and physical well-being as human rights to “be protected by the rule of law.” Although a significant number of national constitutions now include language that embraces a right to education, to health, or to both, disease and illiteracy remain pervasive throughout the world. Almost a billion individuals, a sixth of the international population, cannot read; similar numbers lack access to health care or to potable water. These deprivations cause physical harm, undermine a person’s sense of autonomy, and subvert democratic possibilities. Against this dismal background, skeptics question not only the conceptual foundation of social and economic rights, 8 but also their strategic value in fostering improvement for the disadvantaged and dispossessed. The current project examines a specific aspect of this problem: the extent and efficacy of using national courts to enforce constitutionally based claims to health and to education services. Focusing on five nations—Brazil, India, Indonesia, Nigeria, and South Africa—the project offers an ambitious account of institutional practices based on cross-disciplinary, comparative case studies that combine quantitative with qualitative analysis. The countries under discussion have all codified social and economic rights in their national constitutions and in some places have enacted legislation to effectuate these provisions. The preceding chapters do not revisit the wisdom or legitimacy of extending constitutional protection to health or educational services. Instead, the investigation takes for granted the existence of such rights and focuses on whether and to what extent litigation—taking unmet claims to court—helps secure their enforcement in ways that improve individual lives and enhance social conditions. Working from the ground up, the case studies attempt to trace the particular local processes that influence the judicial and extra-judicial implementation of health and education claims, dealing with issues that range from the availability of money damages to compensate for substandard medical care, to the regulation of private school practices affecting student conduct. From the perspective of a U.S. lawyer, the case studies tell an unexpected and important story—particularly when considered against the usual discussion of the justiciability of social and economic rights. The question of whether federal courts in the United States can and should enforce affirmative constitutional claims tends to focus on the capacity of judges to deal with polycentric, value-laden policy questions in disputes involving the government, and also on the legitimacy of having unelected courts mandate goods and services that are not provided by the democratically elected branches of government. These arguments, wedded to American doctrine, have spilled over to the jurisprudence of other nations and even to transnational analysis. ‘[W]hatever the logic and moral force of social and economic rights,” David M. Beatty states, “their enforcement seems to compromise the democratic character of government and the sovereignty of the people to determine for themselves what the collective, public character of their communities will be.” Implicit in this well-trod discussion is a state-centric focus: the assumption that social and economic rights, if justiciable at all, run against the state and the bureaucratic officials who work as its agents, but not against private actors. Moreover, the debate takes a narrow approach to the concept of state duty, so that the government is constitutionally obliged to redress only those deprivations for which it is directly responsible. Although private actors play a vital role in realizing or defeating access to social and economic goods, the conventional account leaves the manufacturer of pharmaceuticals, the manager of a private school, and the doctor who vaccinates a child subject only to the private rules of tort, contract, and property law, and immune from constitutional regulation.

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  Sovereignty, Lost and Found

  Robert L. Howse

  In this brief essay, I want to challenge two very common, and interrelated, stories about ‘globalisation’ and sovereignty. The first is that globalisation entails the ceding of sovereignty understood as the actual capacity of public authorities to control or determine behavior and outcomes on their territory to global markets or market actors. This story is as common to those who embrace globalisation as to those who fear it. The second story associates globalization—including both the globalisation of markets and the globalization of values and opinion (human rights)—with the transfer or allocation of sovereignty or sovereign powers to international institutions or governance mechanisms. The second story has, evidently, both normative and positive dimensions. Not only is it often presented as a description of an unfolding reality, but as a prescription—an answer to globalisation’s challenges and opportunities in the broadest sense. For example, if mobile capital in the global marketplace makes it difficult for governments to maintain environmental standards, one should create a world environmental organisation. Global governance may be seen as an effort of governments to take back control they have apparently lost at the national level to global markets. (Thus the interrelatedness of the two stories). Or, in a different way, the notion of crimes against the world community—against humanity—may be thought to imply logically that accountability for those crimes be addressed before a tribunal of the world community (the International Criminal Court (ICC)). The second story engages many of the multiple facets of sovereignty as a concept—its meaning as actual control or power to affect outcomes, its attributes as a positive legal principle or doctrine of the international legal order, and its many normative resonances, deeply connected to conceptions of legitimacy. In challenging these stories, I can hardly claim originality. They have already been put in question by studies such as those by Saskia Sassen and Anne-Marie Slaughter, which address the real world complexities of the relationship between globalisation and national sovereignty; there are international law scholars who have introduced subtlety and caution to the debate over the ‘loss’ of national sovereignty, for example Ruti Teitel. Nevertheless, the stories in question continue to influence-consciously or unconsciously—discussions about sovereignty and globalisation among international lawyers as a professional community. We would like to think that globalisation is about us—that as the functionaries or guardians of global law we possess the tools to realise globalisation’s opportunities and constrain its dark sides. To paraphrase Carly Simon, we’re so vain we think this song is about us. But it is about us only to a modest extent. Moreover, there is an increasing tendency among international lawyers, a tendency that however has existed throughout the post World War II period, to see international law or order not as a mechanism to achieve the objectives of governments and citizens within states where interstate cooperation is needed to attain those objectives, but as a constitutional or constitutionalist project on behalf of humanity or a world community. In this vision, the nation-state and national sovereignty are viewed as the sites of resistance and reaction. This tendency has been influenced by a development that is very positive: an increasing recognition of human rights as a normative constraint on national sovereignty, as a universal morality, the normative force of which does not depend entirely or perhaps even largely on state consent. But the leap from such a recognition to the idea of global constitutionalism, which seems intuitively obvious or almost instinctive for many international lawyers, is a huge—and I shall attempt to show—unwarranted one.

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  The Use and Abuse of International Law in WTO Trade/Environment Litigation

  Robert L. Howse

  Among the central challenges to the international legal order today is that which is typically referred to as “fragmentation”—the co-existence of multiple regimes and fora, whose legal subjects and objects partly converge and often diverge, where fora and norms can overlap and possibly collide in a single dispute. Although there are some rules to deal with conflict of treaties and some principles of hierarchy (the status of ius cogens being the most obvious example) the positive features of international law as a system of rules are very indeterminate in addressing fragmentation. In fact, fragmentation may reflect a tendency of “juridification” of transnational social relations and interests of all kinds, extending far beyond the kind of core State interests reflected in traditional international law and especially in the UN Charter. This chapter is concerned with one particular dimension of fragmentation of norms—its challenges for interpretation. What kind of role should norms drawn from other international instruments and regimes have in the interpretation of a treaty where the dispute in question implicates interests and constituencies represented in both regimes? One of the most contentious and complex expressions of fragmentation has been the trade and environment debate, including the relationship of WTO law to international environmental law. There is a considerable literature that looks at this problem from the perspective of the application of non-WTO rules as autonomous sources of law in WTO dispute settlement and the possible conflict of norms. This is an issue that has often been confused with the use of non-WTO international law to help solve various challenges of interpreting WTO rules in the trade/environment context. This chapter is concerned with the latter, and is intended to explore the diverse ways in which the Appellate Body has used international law for the interpretation of WTO rules in trade/ environment disputes and the broader systemic implications of its practice for the legitimacy of the WTO, the normative effects of international environmental law, and the role of interpretation in the way in which the challenge of fragmentation is conceptualized and addressed. The positive law governing treaty interpretation, as codified in Article 31(3) of the Vienna Convention, provides a number of ways for other international legal norms to be taken into account in the interpretation of a treaty as part of its “context.” Such norms can include: “(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.” For purposes of the “fragmentation” discussion, it is Article 31(3)(c) that is of most interest since (a) and (b) refer to norms internal to the regime of which the treaty being interpreted is part, whereas (c) is clearly much broader. What is striking is that the WTO Appellate Body developed its practice of using non-WTO international legal norms in treaty interpretation in trade/ environment disputes without invoking Article 31(3)(c) of the Vienna Convention. This chapter will attempt to show that the Appellate Body's use of international law in these cases depended on broader systemic and methodological considerations in treaty interpretation, including considerations related to legitimacy, of which Article 31(3)(c) is but a partial and limited reflection. More recently, the ruling of the panel in the WTO EC—Approval and Marketing of Biotech Products dispute has placed a new focus on Article 31(3)(c). The panel used Article 31(3)(c) to limit or constrain the kind of broad-based use of non-WTO law exhibited by the Appellate Body. In particular, the panel interpreted “applicable in the relations between the parties” in Article 31(3)(c) to mean that Article 31(3)(c) has the effect of preventing a treaty interpreter from using as “context” of the treaty any international legal norm that is not binding on all the parties of the treaty being interpreted. In the case of a multilateral agreement with a very large membership, such as the WTO, the effect of the panel's approach would be to reduce considerably the universe of legal norms that could be used as context to interpret a treaty. The final section of this chapter will consider both the broad approach of the Appellate Body and the narrow approach of the EC—Approval and Marketing of Biotech Products panel, in the light of the extensive treatment of Article 31(3)(c) in recent jurisprudence of the ICJ (the Oil Platforms case) and also in the Report of the ILC Study Group, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law.”

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  Democracy Without Sovereignty: The Global Vocation of Political Ethics

  Robert L. Howse and Kalypso Nicolaïdis

  In the Pythagoras, Plato reminds his audience of how men were saved from annihilation by Prometheus who gave them the knowledge of fire and the arts—only to potentially fall victim of each other through incessant war. Zeus (as always!) cleaned up the mess by giving men a foundation for co-operation and for governing themselves. He entrusted Hermes with two gifts for men: aidos (respect, restraint, shame, reverence, awe) and dike (justice or rightfulness), ‘in order to serve as the norm for cities and link men through ties of friendship’. These gifts were to be bestowed on all, not just on a small elite. Thus, for Plato, who explores in the Pythagoras the very foundations of experimental democracy in Athens, Zeus did not choose to give men formal laws or institutions, a list of permitted or banned actions, but a relationship to law and polis. As Socrates tells his companion in Plato’s later Minos, Zeus may have taught law-makers but he himself did not make law. This chapter will therefore argue that as we embark on a new age of governance between all mankind, these Platonic lessons need to be revisited anew. In our view, if, in a localised context, a political ethics à la Plato must emphasise behavioural guidelines above specific institutions or strict rules of action, this is all the more the case in a context where aidos and dike must be pursued not only between men and women, but between groups, nations and transnational associations. In the current, experimental stage of global governance, we believe that such an ethics ought to take central stage. In this spirit, our essay challenges the notion that legitimate global governance should be conceived primarily in terms of the proper allocation or delegation of authority to global institutions. The inter-dependence of the local, national and global in today’s world, as well as the connections between different realms of global governance (eg, trade and human rights, investment and environment), means that it is impossible to protect and promote democratic politics through a stable division of competences between local and national ‘democratic’ institutions and global institutions, or by restricting the mandate of particular global institutions to an agreed ‘subject matter’. Instead, as we discuss below, we need to focus on the manner in which power is exercised by diverse agents in global sites of decision and deliberation, some highly institutionalised and others better characterised as informal networks. Assessing and hopefully shaping the conduct of agents in global sites of governance in accordance with a political ethics of democracy offers considerable promise as an alternative—or perhaps complementary and mutually reinforcing—approach to legitimacy. In this essay, we start by revisiting the principles of subsidiarity and supremacy in the EU context to argue that they should be understood as guiding principles of ‘transnational democracy’, ie, as a horizontal reading of sovereignty transfer—their import for the global level, in other words, is more heuristic than legalistic. Second, we make the general case for a global political ethics, by arguing that neither strict reliance on indirect accountability, in other words a limited reading of ‘subsidiarity’, nor simply granting ‘supremacy’ to international law, can ‘buy’ legitimacy at the global level. Third, we review the story of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) in this light by focusing on both the illusion from below—technical expertise—and the illusion from above—constitutionalisation—that have underpinned their fifty-year history. We deal with these illusions by turning to architectural reform and its limits, before, finally, suggesting the outlines of the kind of transnational ethics we have in mind.

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  Measures Affecting the Cross-Border Supply of Gambling and Betting Services

  Douglas A. Irwin and Joseph H. H. Weiler

  This book is the fourth report of the American Law Institute (ALI) project on World Trade Organization Law. The project undertakes yearly analysis of the case law from the adjudicating bodes of the WTO. These studies cover a wide range of WTO law: this volume focuses on the years 2004 and 2005. Each case is jointly evaluated by well known experts in trade law and international economics. The contributors critically review the jurisprudence of WTO adjudicating bodies and evaluate whether the ruling ‘makes sense’ from an economic as well as a legal point of view, and, if not, whether the problem lies in the interpretation of the law or the law itself. The studies do not cover all issues discussed in a case, but they seek to discuss both the procedural and the substantive issues that form the ‘core’ of the dispute.

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  Global Administrative Law: Implications for National Courts

  Benedict Kingsbury

  How should a legal or governance institution appraise an administrative rule or decision concerning global regulatory governance made by an institution or agency that is not part of the same politico-legal system? In this essay I address one sub-set of these situations: the question of how a national court should appraise a governance decision or administrative rule adopted by an external institution even though that decision or rule may have no binding force in international law nor any formal status in the law of the forum. As with many topics in the emerging field of global administrative law, the issue is only just coming to be clearly delineated. As such, there is no standard line of analysis of the problem among national courts. However, the number of cases raising such questions can be expected to grow rapidly in parallel with the rapid proliferation of global governance norms. This essay therefore suggests the possibility of a standardised approach that can be informed by concepts and ideas from global administrative law. In their 1997 decision rejecting a complaint by the Air Line Pilots' Association that certain disclosures from the cockpit voice recorders of a crashed aeroplane would be inconsistent with the Annex on Aircraft Accident and Incident Investigation to the Chicago Convention on International Civil Aviation of 1944, Justice Kenneth Keith and his colleagues on the New Zealand Court of Appeal were, in effect, dealing with, and participating in, a form of global regulatory governance. A state party can elect to depart from, or not to apply in domestic law, the Standards and Recommended Practices that appear in Annexes to the Chicago Convention and are revised regularly. However, the actual practical operation of the different Standards and Recommended Practices does not follow the uniform system that determines their formal legal status, but varies depending on the topic and phrasing of the particular Standard or Recommended Practice, and on market or bilateral pressures such as the threat of exclusion from United States airspace for non-compliance with some provisions. The approach taken by Ken Keith and his colleagues on the Court of Appeal has led New Zealand Air Line Pilots' Association v Attorney- General (Air Line Pilots' Association) typically to be classified as a decision on “international treaties in national law”. To be sure, it is rightly regarded as a robust and sophisticated example in this category: the Court's careful handling of clause 5.12 of Annex 13 on cockpit voice recordings included fine-grained distinctions between this and other Standards and Recommended Practices as well as close analysis of the relevant New Zealand legislation. We can also see this case in a slightly different way, as one of many situations where a national court determines how it will appraise, and what weight to give to, a governance decision or administrative rule adopted by an external institution. It is of course important to consider the status in international law of the relevant rule or decision, and the effect given to this category of rule or decision in the national law of the forum. But inquiry may also be needed into other questions. What formal authority and status does the rule or decision have in the system within which it was made? How was it made (issues of process)? How does the governance regime actually work and how is it understood by its main participants or constituencies? How does this align with the public policy of the forum, and perhaps with broader public and governmental interests? What role could properly and usefully be played by the national court? The national court has responsibilities to its national public and to the State for its exercise of power; but the court may also have a functional if unarticulated role in the relevant global governance regime, and may even have responsibilities to others involved in that regime or affected by it who are not parties to the particular case. Operationalising this broader contextual view of the governance of the issue can be very difficult. How can the court be confident that it is well-informed on those broader issues? What are the sources of norms to be applied within such a governance system and, in any case, to what extent, if at all, should these governance considerations displace the outcome that would result from application of the formal law of the forum (including international law where the forum's law provides for that)? It may be thought that the problems in operationalising this broader “governance” approach mean it should not be pursued. In my view, these problems must be faced no matter what framing is used. Thus, although it certainly does not use the language of governance, we can see the Court of Appeal in Air Line Pilots' Association grappling with some of these questions—trying to determine how the Chicago Convention system of global governance works, and what weight different elements of it should have for a New Zealand court if the formal status of these elements has not already been precisely worked out in New Zealand law, as well as what the consequences might be if the New Zealand courts act in a particular way.

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  "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy

  Benedict Kingsbury

  Over a very short period, the few decades since the early 1970s, “indigenous peoples” has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations. The development of “indigenous peoples” as a significant concept in international practice has not been accompanied by any general agreement as to its meaning, nor even by agreement on a process by which its meaning might be established. As the concept becomes increasingly important, international controversy as to its meaning and implications is acquiring greater legal and political significance. This article considers how to understand “indigenous peoples” as an international legal concept. To sharpen the focus, the discussion concentrates on the current practical dispute as to whether and how the concept of “indigenous peoples,” formed and shaped in regions dominated by the history and effects of European settlement, might or should be adapted and made applicable in Asia and elsewhere. Both elements of the term—“indigenous” and “peoples”—are contentious, but the discussion here will focus on indigenousness. Two broad approaches to relatively underspecified concepts such as “indigenous peoples” may be identified. The first, here termed a positivist approach, treats “indigenous peoples” as a legal category requiring precise definition, so that for particular operational purposes it should be possible to determine, on the basis of the definition, exactly who does or does not have a particular status, enjoy a particular right, or assume a particular responsibility. Once established, such definitions theoretically ground the interpretive process of determining the scope of application of particular legal instruments and rules. It will be argued that the experience of international agencies and associations of indigenous peoples demonstrates that it is impossible at present to formulate a single globally viable definition that is workable and not grossly under- or overinclusive. Any strict definition is likely to incorporate justifications and referents that make sense in some societies but not in others. It will tend to reduce the fluidity and dynamism of social life to distorted and rather static formal categories. One possible conclusion, that “indigenous peoples” as a global concept is unworkable and dangerously incoherent, has some adherents. But it is a concept of great normative power for many relatively powerless groups that have suffered grievous abuses, and it bears the imprimatur of representatives of many such groups who are themselves shaping it while being shaped by it. As a concept designating a locus of groups and issues, albeit with some imprecision and uncertainties, it has proved remarkably serviceable, and there is no contending replacement. The aspiration for perfect positivist coherence is unachievable, but there is another way to understand the concept. This second approach, here termed constructivist, takes the international concept of “indigenous peoples” not as one sharply defined by universally applicable criteria, but as embodying a continuous process in which claims and practices in numerous specific cases are abstracted in the wider institutions of international society, then made specific again at the moment of application in the political, legal and social processes of particular cases and societies. Neither approach suffices entirely on its own. It will be argued that the constructivist approach to the concept better captures its functions and significance in global international institutions and normative instruments. In most cases the terminology and indicative definitions in global or regional instruments are too abstract and remote to provide a sufficient basis to resolve the infinite variety of questions that arise in specific cases, and it is misguided to expect that these global instruments can even purport to resolve all such detailed problems. These instruments often contain relevant principles and criteria abstracted from the specifics of past cases and debates, and each has stimulated a body of practice concerning its scope of application and the meaning of concepts it employs. But many specific problems as to the meaning of “indigenous peoples” and related concepts can be solved only in accordance with processes and criteria that vary among different societies and institutions. Only in such specific contexts is it possible adequately to answer such questions as: Is a waning traditional authority or a popular, but state-created, political body the proper representative of an indigenous group in a land claim? Are children of a marriage between a group member and a nonmember entitled to be full members? Who are the legal successors to a group whose leaders signed a treaty in the eighteenth century? Does organization of a new political body by one clan from a larger indigenous community make the clan an indigenous people? Which group is part of which other group for purposes of representation? Who ought to benefit from royalty payments for a therapeutic drug derived from a plant known and used by several groups? Can local villagers close a forest that is the supply of fuel wood for a community of landless migrants nearby? To which groups in a particular country does the World Bank's policy on indigenous peoples apply? Who will be eligible to represent indigenous peoples if, as is currently proposed, a permanent forum for indigenous peoples is established in the United Nations? Such questions can be resolved only through specific contextual decisions, often referring to detailed functional definitions that are influenced by and influence, the more abstract global concept. Before the argument is developed, a caveat must be entered about the scope and generality of this article. It focuses on issues arising in east, south eastern and south Asia. Even with much of western and central Asia omitted, this region is so diverse as to issues pertaining to “indigenous peoples” that generalizations must be treated with the utmost caution. There are overlapping themes, as well as considerable variation, between Asia and Africa in this regard, and the relevance or irrelevance of the concept of “indigenous peoples” in Africa is of great importance. Although to a lesser extent than Asian groups, a small number of African groups have become involved in the international indigenous peoples' movement, and governments of a few African states have expressed concerns similar to those of Asian state governments considered in this article. For clarity, specific issues concerning the concept of “indigenous peoples” in Africa are not considered in this article.

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  Legitimacy and Accountability in Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations

  Benedict Kingsbury and Richard B. Stewart

  Much global regulatory governance—in fields as diverse as trade and investment, financial and economic regulation, environment and labor, intellectual property, international security, and human rights, as well as the internal management of international organizations—can now be understood as administration. The shift of regulatory authority and activity from domestic to global bodies has outstripped traditional domestic and international law mechanisms to ensure that regulatory decision makers are accountable and responsive to those who are affected by their decisions. In response to these deficits, regulatory decision making by global bodies is increasingly being held to norms of an administrative law character, including requirements of transparency, participation, reasoned decision and decisional review, with a view to ensuring greater accountability and responsiveness. The rise of administrative law-type principles and mechanisms to channel and discipline global regulatory decision making is the focus of the Global Administrative Law Project at NYU School of Law. The project, which engages academics and practitioners in North America, Europe, Latin America, Africa, Asia, and the Pacific region, seeks to study this burgeoning field of practice and theory systematically, with a view to analyzing its elements and shaping its inevitable future development so as to help realize such potential as it offers for justice and effectiveness in global regulatory governance. More than 100 papers mapping and analyzing these phenomena have now been written under the auspices of the project. Although the landscape is highly variegated, the overall picture these papers present is of the formation of a thickly populated global administrative space, and the development of principles and practices that may be termed Global Administrative Law. This paper highlights some implications of analyzing administrative tribunals of international organizations (including appeals boards, appeals tribunals and the like) as part of the administration of global governance and in particular as contributors to, and subjects of, the emerging global administrative law. These administrative tribunals reach their decisions by reference to such sources as: staff employment contracts; staff rules and regulations; internal orders, circulars, handbooks and practices of the organization; the constituent instruments of the relevant organization and of the specific tribunal; and a somewhat open-ended range of other sources including, in particular, general principles of law. Through their decisions on the use of these sources and their interpretations of particular principles they are producers of global administrative law materials. These materials are directly relevant to claimants and to the administration of the institutions each tribunal directly regulates; they are also relevant to other institutions and tribunals (indirectly) through the development of a corpus juris among different international organizations; and they have a wider impact in helping shape and refine concepts of general legal importance such as due process, discrimination, reviewability of discretionary decisions, a duty of care toward staff, and publicness. At the same time, these tribunals are themselves exercising public power in global governance, and thus they are increasingly subject to demands that the organizational design (matters such as appointment of members, enforceability of orders, and appeals) and the operations of these tribunals (fair hearings, reasoned judgments, etc.) conform to emerging standards of global administrative law. Moreover, while the jurisdiction of these tribunals is typically limited to matters concerning the staff of the particular organization involved, their design, jurisprudence and experience have implications for other initiatives to broaden the accountability of intergovernmental organizations, particularly to third parties these organizations may harm. The next section of this paper sets out in more detail the case for viewing much global governance as administration, and the basic elements of the global administrative law approach. The subsequent sections briefly explore a few of the ways in which a global administrative law approach may help international organizations, and specifically international administrative tribunals, to meet effectively some current challenges of legitimacy and accountability.

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  Law and Economics

  Lewis A. Kornhauser

  Law and economics have had a long and fruitful intellectual relation. Adam Smith (1723–1790) lectured on jurisprudence well before writing The Wealth of Nations (1776). In many European universities, economics departments emerged from faculties of law. Yet the role of economics in American legal education and in contemporary adjudication in the United States has often been surprisingly limited. Since the emergence of economics as a distinct discipline in the United States in 1885 when the American Economics Association was founded, two great (and distinct) movements integrating legal and economic analysis have occurred. The first movement began in the late nineteenth century and extended to the New Deal. The second movement, generally said to originate with the publication of Ronald Coase’s “The Problem of Social Cost” (1960) and Guido Calabresi’s “Some Thoughts on Risk Distribution and the Law of Torts” (1961), continues in the early twenty-first century. Both movements had a substantial influence on the legal thought of their day; as discussed below, the extent of their influence on the Supreme Court of the United States is difficult to determine. This entry has four parts. First, it briefly discusses how to measure the influence of a decentralized, nonunitary intellectual movement. Next, it considers the first “progressive” movement in economic analysis, providing a brief history of the key participants and substantive issues engaged, as well as an assessment of its influence on the U.S. Supreme Court. The third section provides a brief history of the second, “neoclassical” movement; here the entry emphasizes some of the controversial claims that arose in the early 1970s. The fourth section considers the influence of the neoclassical movement in the economic analysis of law on the Supreme Court because, though influenced by the intellectual currents of its time, the Supreme Court only rarely gives explicit indication of this influence.

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  The Analysis of Courts in the Economic Analysis of Law

  Lewis A. Kornhauser

  Many analyses of courts within the economic analysis of law are indistinguishable from those produced by positive political theorists; they consider how judges control, exploit, or resolve conflicts of interest among judges. This article considers three contributions by economic analysts of law outside this common, positive, political theoretic model but which still exploit the tools of rational-choice theory. These contributions either integrate appellate decision-making within a more comprehensive model of litigant and trial behavior; assume that judges constitute a team with shared preferences; or assume that judges decide cases rather than announce or implement policies. These three elements yield a substantively different understanding of courts than the standard model of positive political theory (PPT). The assumption of shared preferences explicitly rejects the principal-agent model that is standard in PPT. The integration of appellate decision making with other aspects of the disputing process and the shift from policies to cases are consistent with, but potentially transformative of, the standard principal-agent models of adjudication.

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  U.S. Supreme Court-Savvy Immigration Practice

  Nancy Morawetz

  Annual publication from the AILA annual conference on immigration law.

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  Analytic Philosophy and the Interpretation of Constitutional Rights

  Sophia Moreau

  Analytic philosophy has been used in many areas of Anglo-American law to help clarify the content and the implications of the legal concepts central to these areas. As early as the 1950s, Herbert Hart and Tony Honoré argued that the type of philosophical analysis that was central to the school of philosophy known as ‘ordinary language philosophy’ could shed light on the concept of causation as it is used in tort law and criminal law. Hart and Honoré tried to show, in particular, that a clear and detailed examination of the uses to which we put the concept of causation in ordinary speech would reveal that causal questions are distinct both from questions of policy and from questions of responsibility. Since then, a more modest type of philosophical analysis that grew out of ordinary language philosophy and that many now term ‘analytic philosophy’ has influenced many areas of the law. The aim of analytic philosophy is still, in part, to clarify the content of our concepts and to make explicit the assumptions and implications of the doctrines that employ them. But unlike ordinary language philosophy, it does not treat certain ways of understanding these concepts as authoritative just because they reflect an allegedly ‘ordinary’ usage. Rather, it aims to separate out and discuss in some detail the different possible interpretations of a particular concept; to consider the logical implications of each of these interpretations; and, where the context is a legal one, to lay bare the consequences for legal doctrines of adopting one particular interpretation of a concept over another. In order to do this, analytic philosophy looks beyond facts about our language, to facts about what we believe and what we value. Its methods include attempting to separate out and delineate very precisely the different meanings that we might give to a particular legal term; exploring the assumptions or value judgments that might lead us to prefer one interpretation over another; and assessing the different logical implications, for particular doctrines, of adopting one meaning of a given term rather than another. It aims thereby to help us make a more informed choice about which meanings are most appropriate in a particular legal context. Many of the central concepts of tort law have been subjected to such analyses. Torts theorists have reflected, for instance, on different understandings of the objective standard of care in negligence law, and the ways in which these different understandings are supported by different views of interpersonal responsibility; and on what it is to own the consequences of one’s actions and whether strict liability offences can be adequately understood and justified simply by combining ideas about ownership of actions with ideas of causation.4 Likewise, discussions in the law of property and, most recently, the law of intellectual property have drawn on philosophical analyses of what it is to have property in an object and what valuable interests this can serve. Also, our understanding of basic components of the criminal law has been shaped by analyses of the nature of agency and the nature of punishment, as well as consideration of when and why we can justifiably be held responsible for, and justifiably be punished for, expressions of our agency. In the face of these many legal uses of analytic philosophy, it is striking that the interpretation of constitutional rights has proceeded largely in isolation from it. Courts and constitutional law scholars have certainly engaged in detailed reasoning about the interests and values that underlie constitutional rights. But it is rare to find them using the type of abstract conceptual analysis that is used within analytic philosophy, and rare to find analytic philosophers writing on constitutional law. Of course, many analytic philosophers have discussed the higher-order methodological question of what approach courts ought to follow when interpreting constitutional rights—of whether, for instance, the court’s task is to locate the intent of the framers, or to find the interpretation that will best safeguard the process that allows the contemporary public to have their voices heard, or to affirm the answer that best accords with the values that underlie our constitutions or the very ideal of a liberal democracy. But analytic philosophers and their methods have not, in the same way, influenced our interpretation of particular constitutional rights themselves. They have not played a significant role in shaping our understanding of the scope of these rights or the interests they protect.

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  The State Attorney General and Preemption

  Trevor W. Morrison

  According to the National Association of Attorneys General (NAAG), ‘‘the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress’’ is ‘‘[p]erhaps the most significant development in federal preemption in the last several decades.’’1 This kind of preemption is typically found in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute is silent on the issue. That NAAG would view ‘‘agency preemption’’ as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative and enforcement powers under state consumer protection, health, environmental, and other state laws are displaced by the agency’s action. This chapter examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is not so much the courts as Congress and the federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices the legislature and agencies could make to better accommodate the important functions of state attorneys general. Congress, I suggest, should directly address whether any or all of the work of state attorneys general should be preempted by any particular enactment it passes and should include provisions making clear the extent of its intent to preempt. In the absence of clear statutory language addressing the question, I argue that agencies should be reluctant to promulgate regulations preempting the investigative or enforcement authority of state attorneys general. Unlike the Supreme Court’s current ‘‘presumption against preemption,’’ the approach I advocate does not focus on the particular subject matter of the state or federal law in question. Instead, it focuses on the identity of the actor enforcing the state law. Given the electoral accountability of most state attorneys general and their long-standing mandates to enforce state laws in pursuit of the public interest, I suggest that unelected federal agencies should be particularly reluctant, absent a clear statutory mandate, to displace the work of state attorneys general. Instead, federal law should preempt the work of state attorneys general only by express statutory language. To get to those prescriptions, Part I first provides a brief overview of the federalism-related values that bear most directly on state attorneys general. Part II then introduces the state attorney general, emphasizing that most states’ versions of this office are directly elected and that they typically wield broad authority not only to litigate in the public interest but also to monitor compliance with both state and federal law. As Part III describes, however, the courts’ current preemption doctrine takes no special account of state attorneys general. In addition, judicial preemption doctrine is sufficiently malleable and unpredictable that it can be difficult to know when, and why, the actions of state attorneys general will be preempted. Although it is certainly possible that the courts could improve their doctrine in this area, a more direct approach would be for Congress and federal agencies themselves to take account of the state attorney general. Part IV proposes that they do just that. Finally, Part V identifies and responds to a potential objection.

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  The Value of Inviolability

  Thomas Nagel

  One of the most difficult and widely discussed questions in recent moral theory is that of the status of human rights—the rights of individuals not to be violated, sacrificed, or used in certain ways, even in the service of valuable ends, either by other individuals or by governments and intermediate institutions. The reason for claiming such things as rights—apart from the natural tendency for rhetoric to escalate—is that they have some claim to be given priority over other values, a claim to be taken care of first, for everyone, even if this cannot be justified by balancing their utility against other components of the general good or general welfare. There is probably no harm in attaching the term “right” to the minima that ought thus to be guaranteed to everyone—provided it does not produce confusion with negative rights, which are likewise equally to be accorded to everyone, and provided it does not beg any questions about the relative priorities between positive and negative rights, should they conflict.

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  Apportionment

  Richard H. Pildes

  The Supreme Court's apportionment cases are among the most important and revolutionary decisions in the Court's history. These decisions culminated in the famous one-person, one-vote principle, which has come to be viewed as part of the bedrock of American democracy. The reapportionment decisions had immediate and dramatic effects, which included the restructuring of the institutions of representative government throughout the United States: Congress, state legislatures, city councils, and many other institutions of local and state government. These decisions continue to require that election districts be redrawn every decade, in the wake of a new census, to ensure those districts remain consistent with the one-person, one-vote requirement. As consequential as these immediate practical effects were, the significance of the decisions extends even more broadly, for they also initiated a transformation of the role of courts in overseeing the basic structures of American democracy more generally. Apportionment is used somewhat differently in different contexts, but for purposes of this entry, apportionment will refer to the process by which various political institutions, such as state legislatures, decide how to design the individual election districts that are used to elect members of the U.S. House and state legislatures. When local governments use individual election districts to elect members of local government, to a city council for example, those local governments must similarly decide how to design these election districts. These actions are often called the process of apportioning representatives, though they are frequently called redistricting as well. The process of redistricting or apportionment can have enormous political consequence. Even if citizens face no barriers to casting a vote, the way election districts are designed can determine who wins elections and which forces control government. For example, consider a town of 100 people, divided between sixty people who support Blue policies and forty who support Red policies, that elects five representatives to govern it. If the town designs its election districts so that one district includes all sixty Blues and the other four districts all contain ten Reds each, the town council will vote four-to-one for Red policies, even though a clear majority of the town's citizens prefer Blue policies. Thus, democracy requires not just that all citizens be able to vote, but that election districts be designed to aggregate those votes in such a way as to ensure fair and responsive representation.

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  Ethnic Identity and Democratic Institutions: A Dynamic Perspective

  Richard H. Pildes

  The most urgent problem in the design of democratic institutions today is how best to design such institutions in the midst of seemingly profound internal heterogeneity, conflict, and group differences. In different parts of the world, the relevant differences can be religious, racial, linguistic, tribal, cultural, regional, or perhaps of other forms (as a shorthand, “ethnic differences”). This problem is central, not only to newly forming democracies over the last generation but also to more established democracies, as various groups more assertively press claims for political recognition, representation, and influence. We ought to understand this issue, better than we have thus far, as lying at the intersection of democratic theory and democratic institutional design on the one hand, and questions about the nature of individual rationality and rational choice concerning ethnic group “identities”, on the other. The argument of this chapter is that academic thought and, for the most part, practical institutional design have thus far taken too static an approach to this fundamental problem. In our first phase of confrontation with this issue, theorists and institutional designers have been overwhelmed with the problem as it appears at particularly critical political moments: the moment of state formation; or the moment at which societies emerge from conflict; or the moment at which group demands for inclusion, recognition, and power first become powerfully enough expressed as to require an institutional response. These are the moments at which ethnic identities are likely to seem most fixed, most entrenched, most essential to conceptions of self, and potentially most divisive or explosive. Dominated by the urgency of these tensions at the moment of institutional formation, constitutional framers often respond to the problem as it presents itself at that moment. As a result, the implicit view embodied in the institutions they create is frequently a static one. The institutional perspective takes for granted the nature of these ethnic identities and conflicts as they exist at the moment a state’s democratic institutions are forged. In contemporary contexts, the emerging democratic structures often attempt to accommodate these ethnic differences through explicit devices, which can range from guaranteed minority political representation, to minority vetoes, to consociational executive branches, and to other similar structures. Overwhelmed as theory and practice are by the magnitude of these problems at the moment of institutional formation, however, we neglect to recognize the extent to which ethnic differences can be fluid and capable of changing over time in response to shifting circumstances. In particular, we do not take adequate account of the extent to which the design of democratic institutions both can shape the ways ethnic identities are expressed and the extent to which these institutions, if not well designed, may entrench these identities. The specific design of democratic institutions can make it more difficult for the inherently contingent nature of these identities to be manifested. Moreover, once democratic institutions are constitutionally built along premises that assume particular ethnic identities, those institutions themselves may become impermeable to change, even as changes in social circumstances undermine these original premises. Thus, the very institutional structures perceived as necessary to address ethnic difference synchronically—that is, at the moment of original democratic institutional formation—often undermine the dynamic possibilities for how these identities might shift and become more muted over time. The United States Senate affords a stark example. It is now the least democratically structured representative institution among Western democracies, as measured by the one-person, one-vote principle. Thirty-four million Californians have the same representation as 500,000 residents of Wyoming (a population disparity of 68:1). When the Senate was originally formed, state-based cultural and political identities were strong, and the original population disparity was only 13:1.1 If the representative institutions of the United States were being created on a clean slate today, it is difficult to believe that a senate designed as the current one would emerge. State-based identities are thinner today, but even if such state-based differences were to continue to be taken into account to some extent, it is hard to imagine there would be consensus on accommodating these differences to the extent of a 68:1 departure from political equality. Yet the fundamental structure of the Senate is not a subject of discussion in the United States. That it would be changed today is inconceivable. Overwhelmed by the sectional differences at the moment the United States was created, the framers of the Constitution neglected to build in enough capacity for the basic democratic institutions of the state to be modified over time as the sense of ethnic difference itself changed. Perhaps understandably, the framers of the United States’ Constitution missed the essential, but complex logic of this situation—how to address both existing sectional differences while designing a system that did not entrench those differences beyond their “natural” life. Even if it was understandable that the Constitution’s framers, unsure of the sustainability of democratic self-governance, missed this dynamic perspective on the design of democratic institutions, it is less forgivable today. As the overview chapter to this volume attests, the question of how democratic institutions should deal with ethnic difference in various societies is often cast as a debate between integrationists and accommodationists. The former focus primarily on the long-term normative vision of the state; they believe that the risk of long-term entrenchment and solidification of ethnic identities is so great, when political institutions are designed to accommodate group differences, that such accommodations should be avoided. Integrationist approaches often founder at the moment of state formation, however, because of a lack of sufficiently widespread political support at this particularly risk-averse moment. Accommodationists, on the other hand, focus strongly on the immediate, short-term pressures the state faces. Viewing accommodation as a practical necessity to ensure widespread support for and stability of democratic institutions, accommodationists insist that realism requires that an acknowledgment of ethnic differences be built into democratic institutions. If anything, there is growing support today for accommodationist approaches. At the same time, if accommodationist approaches are not designed with great care, they risk precluding the rise of more integrationist politics over time. Now that we have another generation of experience with these issues, I will argue that the task should not be understood as the need to choose between integration or accommodation writ large. To the extent accommodation is necessary or desirable at the moment of state formation, there is a great deal of difference among the devices and institutional structures through which accommodation is put into effect. The choice of specific structures should be made in a way that builds in the greatest capacity possible for changes in the nature and intensity of ethnic differences over time. If accommodation is necessary, it should be designed, to the extent possible, not to preclude the emergence of more integrationist politics over time. Put in other terms, the task is not to choose between integration and accommodation but to design institutions that enable societies to reach different balances between the two over time. We need a comparative and pragmatic assessment of the different institutional devices democracy has for addressing ethnic difference. That assessment should take a more dynamic perspective on the mutual interaction over time among ethnic identities, ethnic differences, and the design of the institutions and processes through which democratic political competition is channeled. The succeeding sections develop these themes, while many of the chapters in this book provide rich empirical experience from recently created democracies through which we can try to reach general insights about how best to design democratic institutions to manage ethnic difference.

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  The Legal Structure of Democracy

  Richard H. Pildes

  At both the macro and micro levels, law and political science have become increasingly intertwined in understanding the causes and effects of democratic institutions and processes. Recent years have spawned greater attention to the way in which the “nature” of democracy in different states, including the United States, is shaped by the specific ways in which the institutional and legal framework of democracy is designed. The focus of promising academic research ranges from the broadest issues of how different forms of power sharing among groups in deeply divided societies affect the stability, acceptance, and performance of democracies, to much less visible issues that nonetheless have considerable influence on the nature of democratic politics, such as how election districts are designed, how political parties choose their candidates, how elections are administered, and how election disputes are resolved. These issues are examined in the present article, along with gerrymandering and campaign finance.

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  Colombia. The New Left: Origins, Trajectory and Prospects

  César Rodríguez-Garavito

  The emergence of new parties and electoral coalitions of the left and right has reconfigured Colombian politics in the last decade. With this, it appears that the centrist inertia of Colombia’s long-term two-party political discourse has been broken—a centrism that, discrediting open ideological debate in democratic arenas, has created incentives for violent political expressions. In the short term, this shift has made it possible for the labels ‘left’ and ‘right’—common in other countries of the region—to become part of the lexicon of political discussion and analysis in Colombia for the first time in several decades. In the medium to long term, as we shall see below, the emergence of solid political blocks of the left and right may signify the transformation of the political system as a whole and force the traditional political parties (Liberal and Conservative) to reinvent themselves accordingly. This chapter focuses on one of these new poles: the new Colombian left. Specifically, it is concerned with the parties and electoral coalitions of the left that, since the founding of the Frente Social y Político (FSP, Social and Political Front) in 1999, have made unprecedented electoral advances, including the election of congressional candidates with some of the highest vote totals in the 2002 elections, the election of the first leftist mayor of Bogotá in 2003, and the highest vote ever for a leftist presidential candidate in 2006. The chapter also examines the articulation between these parties and social movements and other political forces that constitute a nascent leftist block, in opposition to the new rightist block that has formed around the figure of President Álvaro Uribe. Given that the resurgence of the left is a regional phenomenon, as the other chapters in this volume demonstrate, this chapter places the study of the Colombian case in the context of the new Latin American leftist parties and movements. Consequently, it attempts to achieve a balance between: (1) an analysis of how the peculiarities of the Colombian situation have conferred certain particular features on the recent evolution of the left in the country; and (2) an analysis of the similarities and influences between the Colombian left and the new left currents that have emerged throughout Latin America. In relation to the central themes of this book, laid out in Chapter 1, several theses inform the description and analysis presented in the pages that follow. First, I argue that the origins and characteristics of the new left should be understood as part and parcel of a ‘thawing process’ of the bipartisan political system dating from the nineteenth century. I further argue that an equally central component of this process is the consolidation of a ‘new right’ in the country. For this reason, throughout the chapter I underline both the parallel origins of and the contrasts between the two blocks, and the changes these have produced in Colombia’s political system. Second, with respect to the links between political parties and social movements, I argue that their articulation is still incipient and that, in this context, the parties have tended to be the most visible actors of the new left. This contrasts with the Bolivian and Ecuadorian cases—and even the Argentine and Mexican cases—in which social movements have been the original engines of the left’s resurgence. It also contrasts with the Brazilian case, in which the articulation between social movements and the party was fundamental from the very beginning of the Workers’ Party (PT). Third, I attempt to demonstrate that the considerable electoral gains since 2002 by leftist parties in municipal, congressional and presidential elections occurred before those parties had consolidated themselves—that is, the political juncture has been such that the new left had had to attempt to organize viable parties after having reached Congress, the Bogotá Mayor’s office and other democratically elected offices. In this sense, the Colombian experience contrasts with those of Brazil and Uruguay, in which the PT and the Frente Amplio (Broad Front) respectively went through processes of organization and consolidation for several years before rising to positions of political importance. Fourth, with respect to the proposals of the new left, I contend that its nucleus consists of a combination of, on the one hand, political negotiation and protection for the democratic rights as a solution to the armed conflict and, on the other hand, its opposition—formulated in very general terms—to economic neo-liberalism. In view of the rights-centred and redistributive character of the 1991 Colombian Constitution and the repeated efforts of the Uribe government to reform it, the new left has tended to condense its platform in defence of the constitution. The Colombian context creates a situation—paradoxical in historical and comparative perspective—in which the left tends to take the lead in defending existing institutions and offer more detailed alternatives with respect to public order (a topic in principle more favourable to the left in situations of deepening inequality and persistent poverty such as the one obtaining in Colombia).

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  On the Foundation of Antitrust Law and Economics

  Daniel L. Rubinfeld

  This paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven solely by a group of conservative antitrust legal and/or economic scholars. Differences among antitrust economists are as likely due to the fact economists hold a range of views as to the meaning of economic efficiency, and they differ significantly in their beliefs as to the likely efficacy of government intervention. The paper begins with an overview of the history of antitrust policy. It explains how important precedents in the law have followed, albeit with a substantial lag, important developments in the economics of industrial organization that serve as important underpinnings of the law. It then explains why and how economists' views of antitrust policy differ, and how and why conservative economics has overshot the mark to some degree.

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  On the Foundations of Antitrust Law and Economics

  Daniel L. Rubinfeld

  This paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven solely by a group of conservative antitrust legal and/or economic scholars. Differences among antitrust economists are as likely due to the fact economists hold a range of views as to the meaning of economic efficiency, and they differ significantly in their beliefs as to the likely efficacy of government intervention. The paper begins with an overview of the history of antitrust policy. It explains how important precedents in the law have followed, albeit with a substantial lag, important developments in the economics of industrial organization that serve as important underpinnings of the law. It then explains why and how economists' views of antitrust policy differ, and how and why conservative economics has overshot the mark to some degree.

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  Quantitative Methods in Antitrust

  Daniel L. Rubinfeld

  This chapter surveys empirical methods that are used to evaluate antitrust issues relating to merger analysis, liability, impact, and damages. The chapter first describes a number of applications for traditional statistical methods that rely on reduced from estimation using cross-section or time-series data. It then examines the application of methods that uncover the structure of demand, including (1) the estimation of demand elasticities using market transactions data; (2) the use of transactions or bidding data, perhaps merged with information on buyer characteristics, to learn about the structure of preferences and to make inferences about the extent of buyer substitution between alternatives; and (3) the use of survey techniques. The chapter then raises a number of important conceptual issues that are relevant with respect to questions of liability, impact, and damages.