Faculty Chapters

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  Pettit's Molecule

  Jeremy Waldron

  The most striking thing in Philip Pettit’s political philosophy is his attempt to replace the standard liberal conception of negative freedom with a conception of freedom as non-domination, which he associates with the republican rather than the liberal tradition of political thought. Since I first read Pettit’s book Republicanism: A Theory of Freedom and Government, I have had my doubts about this contrast, and about the appeal of the Pettit’s conception. But I never could quite put my finger on these misgivings. Now I think I can.

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  Status versus Equality: The Accommodation of Difference

  Jeremy Waldron

  The increasing diversity of liberal-democratic states and corresponding demand of recognition by cultural and minority groups have forced political theorists and various camps to reformulate their accounts of how to approach the goals of social cohesion and political solidarity. The adoption of difference-sensitive laws and policies has brought back the old worry about the stability and unity of political association. We are in a new era, where problems of stability and solidarity are different to those prior to multiculturalism. If different cultural identities are recognized and accommodated, critics ask, then what would keep political society from disintegrating? How can the practice of law-making help us confront the challenges of stability and solidarity in the post-recognition era? This volume explores the complexity of the challenge and produces a series of proposals as a solution that is concrete enough to lend itself to the formulation of appropriate law and policy-making in diverse societies. It will be of great interest to a wide range of scholars in philosophy, political science, law, and sociology, who work on issues of political identity, cultural diversity, and ideals of stability and solidarity. It will also be of interest to policy-makers who are concerned about issues of promoting equality, inclusion and solidarity in diverse democratic societies.

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  Why Is Indigeneity Important?

  Jeremy Waldron

  Reparations is an idea whose time has come. From civilian victims of war in Iraq and South America to descendents of slaves in the US to citizens of colonized nations in Africa and south Asia to indigenous peoples around the world—these groups and their advocates are increasingly arguing for the importance of addressing historical injustices that have long been either ignored or denied. This volume contributes to these debates by focusing the attention of a group of highly distinguished international experts on the ways that reparations claims figure in contemporary political and social justice movements. Four broad types of reparations claims are examined, those involving indigenous peoples, the legacy of slavery in the United States, victims of war and conflict, and colonialism. In each instance, scholars and activists argue about the character of the injustice for which reparations are owed, why it is important to take these demands seriously, and what form redress should take. The aim is not consensus but to exhibit better the complexity of the issues involved—a goal which the interdisciplinary nature of the volume furthers—as well as the importance of taking seriously both conceptual issues and the actual politics of reparations.

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  Four Weddings and a Funeral—Revisiting Patriarchy and Matriarchy in Biblical Narrative

  Joseph H. H. Weiler

  It is my custom to honor friends and colleagues by a personal essay remote from our professional preoccupations and dealing with a Biblical theme. The timelessness of the Bible always ensures the freshness of such reflections. If we case our mind to the institution of Biblical marriage, instantly we have the mental image of Patriarchic relations: Fixed polygamous marriages in which wives and daughters are treated as chattels, given in matrimony by their fathers, in furtherance of political and economic interests, and who become baby production machines whose one function is to continue the (male) line. The affective dimension would be expected to play a secondary role. Where more would we expect to find an explication of this model than in the story of the Patriarchs (and Matriarchs) themselves. In this essay I will explore some aspects of the conjugal relationships between the Patriarchs and the Matriarchs: Abraham and Sarah, Isaac and Rebekah, and Jacob, Leah and Rachel. I will have two concerns: First, to explore the affective relationships—the love story if you wish. And second, the nuances of Patriarchy.

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  The Transformation of Europe

  Joseph H. H. Weiler

  In 1951, France, Germany, Italy, and the Benelux countries concluded the Treaty of Paris establishing the European Coal and Steel Community. Lofty in its aspirations, and innovative in some of its institutional arrangements, this polity was perceived, by the actors themselves—as well as by the developers of an impressive academic theoretical apparatus, who were quick to perceive events—as an avant garde international organization ushering forth a new model for transnational discourse. Very quickly, however, reality dissipated the dream, and again quickly following events, the academic apparatus was abandoned. Forty years later, the European Community is a transformed polity. It now comprises twelve Member States, has a population of 340 million citizens, and constitutes the largest trading bloc in the world. But the notion of "transformation" surely comes from changes deeper than its geography and demography. That Europe has been transformed in a more radical fashion is difficult to doubt. Indeed, in the face of that remarkable (and often lucrative) growth industry, 1992 commentary, doubt may be construed as subversion.

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  Child Pornography Law and the Proliferation of the Sexualized Child

  Amy M. Adler

  If your idea of censorship is an anonymous bureaucrat in a government office exercising prudish control over "offensive" art and speech, wake up and smell the conglomeration. Censorship today is just as likely to be the result of a market force or a bandwidth monopoly as a line edit or the covering of a nude sculpture, and the current system of new technologies and economic arrangements has subtle, built-in mechanisms for suppressing free expression as powerful as any known in other centuries. In Censoring Culture, the nationally known author of the ArtSpeak books and the head of the National Coalition Against Censorship's Arts Program bring together the latest thinking from art historians, cultural theorists, legal scholars, and psychoanalysts, as well as first-person accounts by artists and advocates, to give us a comprehensive understanding of censorship in a new century.

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  Core Labour Standards’ and the Transformation of the International Labour Rights Regime

  Philip G. Alston

  The past decade has seen a transformation of the international labour rights regime based primarily on the adoption of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, and the widespread use of the concept of 'core labour standards'. Notwithstanding the enthusiasm which has greeted these innovations, it is argued that the resulting regime has major potential flaws, including: an excessive reliance on principles rather than rights, a system which invokes principles that are delinked from the corresponding standards and are thus effectively undefined, an ethos of voluntarism in relation to implementation and enforcement, an unstructured and unaccountable decentralization of responsibility, and a willingness to accept soft 'promotionalism' as the bottom line. The regime needs urgent reforms, such as anchoring the principles firmly in the relevant ILO standards, giving greater substance to the Follow-up mechanism, extending monitoring under the Declaration to include an empirical overview of practice under the bilateral and regional mechanisms which have invoked ILO principles and the Declaration itself, and adequately funding the commitment to workers' rights.

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  The 'Dark Side' of the UN’s War on Terrorism

  José E. Alvarez

  As other chapters in this book demonstrates, the 'dark side' of rights emerges when the right of certain groups or individuals conflict with one another and one group's (or one person's) rights are privileged over another's. As Sanford Levinson reminds us, this may occur in the course of a national emergency when government officials elevate 'freedom from fear' (now sometimes recast as the need to protect the rights to security of the person) over the due process (or other) rights of those whom are seen as possibly eliciting such fear. The prospect of abuse of rights in the name of security emerges on a daily basis for those rights-respecting societies faced with the need to choose between the security rights of the majority versus, for example, the rights to privacy of those who face intrusive scrutiny or searches, whether based on racial profiling or not. As Shlomo Avineri reminds us, we have recognized such tensions from the time of Tocqueville, as with respect to the tensions between liberty and equality. The 'Darth Vader' side of rights also emerges, as Martin Krygier and Gianluigi Palombella indicate, when government officials or judges abuse certain human rights through the use of the rule of law (as when governmental international assistance programs marginalize economic and social rights through western rule of law development programs that privilege certain civil and political rights like the right to vote over the right to eat) or when courts adhere to the formal rule of law to the detriment of respecting substantive rights in the case at hand (as was regularly done by Nazi officials or the Stalinist judiciary).

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  The NAFTA’s Investment Chapter and Mexico

  José E. Alvarez

  In the globalizing community of nations the need for worldwide applicable rules and regulations is becoming more and more evident. This does not only relate to foreign and security policy. Just like the western countries the developing world as well must have its fair chance to fully use the advantages of globalization. In this process Foreign Direct Investment is going to play an important role for those states in fighting poverty and in the struggle for economic growth. In this publication experts from different regions of the world discuss the strong interdependence between aspects of development policy and economic aspects in the light of globalization. Case studies highlight the experiences with foreign investment in China, India and the NAFTA region. Hopes and fears of investors are examined and possible solutions for binding international legal frameworks with regard to foreign investment are mapped out.

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  Introducing Maryse Condé

  Kwame Anthony Appiah

  An extended interview with Maryse Condé, a reflection on her work by Princeton’s Anthony Appiah, 10 critical essays by participants in a conference of the same name held at Princeton in 2004, and a comprehensive bibliography.

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  Sixth Dialogue: The Power of the Prize

  Kwame Anthony Appiah, Marika Hedin, and George Steiner

  This book is the record of a colloquium held at Churchill College, Cambridge. It pursues lines of discussion radiating out from the core theme of the power of the image (understood in its pictorial, iconic, sensory and verbal senses). Writers, scholars and artists are grouped in pairs representing the two language-cultures (English and French). Central topics covered include the manifold ways in which our readings of pictorial images old and contemporary can bridge cultures, language politics and the politics of culture, the limitless and instructive senses of the concept of the ‘word’, the relation between orality and the written text, the implications of the act of writing, history and opera, the word in theatre, the influence of the Nobel Prize…. The terms of discussion universally urbane, effortlessly wide-ranging and deeply probing. Most importantly—and a reminder of how best to ensure literate wisdom in intercultural debate—is the fact that the contributors gathered here have avoided all ‘pre-packaging’ of their reflections in the shibboleth ‘discourses' (whether Freudian, poststructuralist, postmodern or postcolonial) of our time.

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  Political Participation: African American Political Participation from the Antebellum Period Through Reconstruction

  Deborah N. Archer and Paul Finkelman

  This entry contains two subentries dealing with African American voting and political leadership. The first article provides a discussion of the topic from the colonial period through the American Revolution, while the second article provides a discussion of the topic from the antebellum period through Reconstruction.

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  Private Contractual Alternatives to Malpractice Liability

  Jennifer H. Arlen

  Patients currently face a substantial risk of being injured by the medical care they receive. These injuries often are the result of medical error that could be reduced by increased investment in care. Tort liability has the potential to reduce unnecessary error. Medical providers can be induced to invest in cost-effective measures to improve medical quality if tort liability ensures that negligent providers pay for the costs they impose on their patients when they fail to provide adequate care. In practice, the current malpractice liability system has not been effective at reducing error because it is plagued with problems. Effective malpractice reform has proven elusive. Proposals that would improve the system rarely obtain political support. All too often, legislatures focus on reforms that would exacerbate existing problems. Leading law and economics scholars claim that the best way to achieve malpractice liability reform is to end government control over malpractice liability and permit patients and medical providers to determine the scope of malpractice liability by contract. Contractual liability proposals vary. Some would permit patients to contract over liability directly with their physicians. Others would shift all malpractice liability to large medical care entities (such as hospitals or managed care organizations [MCOs]) and then allow these entities to contract with patients over the scope of malpractice liability for both their own negligence and that of affiliated medical providers. Despite their differences, these contractual liability proposals share a common economic foundation. The central economic argument for contractual liability is simple and intuitively attractive.

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  Appeals Mechanisms, Litigant Selection, and the Structure of Judicial Hierarchies

  Charles M. Cameron and Lewis A. Kornhauser

  The previous essay elaborated on the theme of compliance in a judicial hierarchy. This essay pulls back to ask broader questions about judicial hierarchies that inquire into the logic of hierarchies as ways of minimizing and correcting errors. Three models are developed. The first approaches the question from a “macro” perspective of the adjudicatory system. It identifies conditions on the relative rates at which wrongly decided cases are appealed and the rates at which errors are corrected and introduced by an appellate process to determine when the addition of another appellate tier would be desirable. The essay then provides two team models of appeal that provide microfoundations for an analysis of hierarchy. The first of these team models shows the power of litigant selection of cases to appeal in the determination of the structure of the hierarchy when courts simply correct errors. With perfect selection by litigants, the optimal hierarchy in an error-correcting judiciary has exactly three tiers. The second of these team models shows that litigants will appeal only hard cases and that the rate of appeal will be a function of the quality of the court.

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  The Demand for Bijurally Trained Canadian Lawyers

  Kevin E. Davis and Michael J. Trebilcock

  Bijuralism or multijuralism—the presence of two or more legal systems in one legal order—is a widespread phenomenon, but one that has received very little scholarly attention. This is surprising once we recognize that problems associated with bi- or multi-juralism appear whenever contracting parties to a transaction are located in jurisdictions that have different legal systems. These problems are set to multiply with globalization and other forms of economic integration such as the European Union. Meanwhile, the "solutions" essayed to address these issues also grow. The contributions presented here are not "traditional" Law and Economics papers in that they do not offer an economic analysis of the law and of its efficiency (in economic terms), but they all contain the necessary economics to elucidate and understand some of the problems encountered when legal systems are "forced" to interact. As such, the volume will be accessible to both lawyers and economists alike.

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  Marriage as a "Badge and Incident" of Democratic Freedom

  Peggy C. Davis

  This chapter lies in the company of deeply thoughtful critiques of marriage. I begin somewhat defensively, narrowing my focus and claims so as to make of myself a smaller target. My focus is African Americans’ embrace of family, both during slavery and immediately after Emancipation. More precisely, I consider two related phenomena: the profound but legally unrecognized intimate relationships through which enslaved people made social meaning during slavery, and the simultaneously political and personal marriages by which people who had won freedom seized the opportunity to make meaning in more recognized and public ways. I read the family affiliations of enslaved people as acts of resistance against laws and customs that supported slaveholding by defining people as property rather than as progeny and by denying them moral and affiliational choice. In the cauldron of antislavery struggle, these acts of resistance, and the forced separations, restrictions on time and mobility, coerced partnerings, and retaliatory violence by which they were often punished or frustrated, combined to produce an understanding of family rights as essential to democratic citizenship and human freedom. When the antislavery struggle was won, marriage, now more richly understood, became a badge of free citizenship and a means of enacting it. These are the claims that I will set out in the two sections that follow.

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  EU Race Discrimination Law: A Hybrid Model?

  Gráinne de Búrca

  Taking the example of the European Union (EU) Race Discrimination Directive, this chapter takes the basic intuition of the experimental governance literature, that in seeking to achieve public interest objectives and to provide for public welfare ‘instead of issuing detailed regulations, or specifying how services are to be provided, the state would set general goals, monitoring the efforts of appropriate actors to achieve those goals by means of their own devising’, and contrasts this with what will be called a human rights perspective. From a human rights perspective, the experimental governance approach raises the concern that, once characterised primarily in terms of flexible goals, important commitments may become empty of content and, if not expressed in more substantive and specific terms, their delivery will not be susceptible to any meaningful accountability. Starting out from this point of contrast between the human rights approach and the new governance approach, the chapter uses the example of EU anti-discrimination law in the field of race to out- line a hybrid approach which jettisons neither the commitments of the rights approach nor the experimentalism of the new governance approach, but which seeks to combine the essential strengths of each.

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  Introduction: New Governance, Law and Constitutionalism

  Gráinne de Búrca and Joanne Scott

  This volume explores the emergence of new approaches to governance (‘new governance’) in the European Union (EU) and in the United States (US). The essays represent the initial results of a research project which brings together a group of European and American scholars to examine the emergence of the new governance phenomenon in different political, geographical and policy contexts. Three distinct but related lines of inquiry inform the collection of essays. The first line of inquiry is a practical and empirical one, entailing an examination of the actual operation of new regulatory forms in a number of specific policy fields or issue areas. By bringing together scholars working on subjects ranging from employment to health to environment and anti-discrimination, we hope to shed some light on the actual nature and characteristics of various new governance forms and their effectiveness, as well as the possible reasons for their emergence. The second line of inquiry aims to interrogate the relationship between law and new governance, both through these concrete case studies as well as through more abstract and conceptual reflections on how law and legal processes are implicated in the operation of new regulatory approaches. The third line of inquiry address- es the relationship between new governance and constitutionalism. This inquiry can be seen in a number of the essays in the volume, whether attempting to situate new governance in relation to a traditional constitutional framework, or seeking a ‘theorization of the ideology’ which underlies the emergent practices of governance, or, more broadly, interrogating the various possible ways of conceiving the relationship between new governance and the notion of collective self-government which is inherent in the idea of constitutionalism.

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  Patenting Science: Protecting the Domain of Accessible Knowledge

  Graeme B. Dinwoodie and Rochelle C. Dreyfuss

  For the most part, the contributions to this volume examine commodification as it applies to cultural products. In this chapter, we look at the effect of commodification on scientific and technological activity. Differences between cultural and scientific production and within the intellectual property laws applicable to these enterprises alter the debate on the relationship between commodification and what (for reasons set out below) we prefer to call the ‘domain of accessible knowledge.’ Some issues are less contentious in the context of technological production while others take on new dimensions. Furthermore, the role that patents play in the organization of scientific research and the nature of international obligations applicable to patenting combine to impose significant constraints on the strategies available to those who would expand public access at the inventive frontier. This chapter proceeds as follows: after discussing the nature of the commodification debate and the constraints unique to scientific and technological production, we explore ways in which the domain of accessible knowledge could be reconstituted. In our discussion of these strategies, we draw on previous work in which we analyzed various substantive methods for curbing perceived encroachments on the public domain to see how each would fare if challenged under the TRIPS Agreement; we then investigated the relationship between the dynamics of domestic legislative procedures and TRIPS dispute resolution outcomes. In this piece, we continue our examination of the domestic efficacy and TRIPS compatibility of substantive alterations to the patent system: strengthening the non-obviousness (inventive step) requirement; narrowing the scope of patent claims; and recognizing new occasions in which the government may use patented inventions without authorization (but with payment). As in our other pieces, our purpose is not to predict the outcome of future disputes—there are far too few WTO precedents for that. Rather, our goal is to explore how the interpretive approaches pursued at the international level affect the ability of TRIPS members to keep their laws attuned to the developments and needs of science. Taking our four articles together, we argue that under certain interpretations of TRIPS, a variety of prophylactic substantive steps to protect the domain of accessible scientific knowledge could be taken, that each has a different pay-off as a matter of domestic policy, but that there is little relationship between the strength of the obstacle posed by TRIPS and the impact of the approach on innovation. Furthermore, we see reason to worry that the analytical tools utilized to date carry a strong potential for altering the political economies of member states in ways that create a one way ratchet in favor of increased commodification. We conclude that a map of the public domain of the type charted by Pamela Samuelson must do more than consider the effects of various domestic laws and policies because the international system (as currently administered) shapes the legal landscape on which individual nations are operating. To alter that landscape, patent strategists should consider a variety of approaches. But we suggest that it may be particularly fruitful to adapt the rhetoric of scholars seeking to promote the public domain in domestic copyright law. The differences we see in the commodification debate may not, after all, reflect genuine differences between cultural and technological production. Rather, it may be that copyright scholars better appreciate the value in framing the public's interest as a right to access.

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  State Street or Easy Street: Is Patenting Business Methods Good For Business?

  Rochelle C. Dreyfuss

  American patent law has changed significantly in this half-century. Interestingly, many of these changes have something to do with Judge Giles S. Rich. He was the principal drafter of the Patent Act of 19521 and he was one of the first judges to sit on the Court of Appeals for the Federal Circuit, which was established in 1982 to consolidate adjudication of patent appeals. Possibly the longest-sitting federal judge, Rich died in June 1999, not long after he made yet another profound mark on the law of invention: the decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc. State Street is important for two reasons. It simplifies the law on patenting software and it reads patent law to encompass protection for business methods. Because of the contemporary significance of the computer industry, there will surely be much technical discussion of the first aspect of the opinion, the protection accorded to mathematical algorithms. This paper will, however, mainly examine the second half of the decision, for it has the potential to affect not only a single (albeit important) industry, but also the efficient operation of the marketplace as a whole. Imagine, for example, how the airline industry might now be structured if the first company to offer frequent flyer miles had enjoyed the sole right to award them; how differently mergers and acquisitions would be financed (and how rich Michael Milken might have become) if the use of junk bonds had been protected by a patent. State Street’s position on business method patenting bears considerable scrutiny indeed. To be sure, exclusive rights are important devices for encouraging creativity, for they provide innovators with a mechanism for earning returns on their activities. But at the same time, they impose many of the social costs that are standardly associated with monopolies, such as high prices, deadweight losses and misallocation of resources. In general, these effects are balanced by the narrowness of the protection afforded. Patent law draws a dichotomy between ideas and applications, and only the latter are protected. Moreover, the ambit of protection is circumscribed in that patents focus on particular end products or specific processes for producing such products. Despite the range of equivalents also encompassed, it has been rare for an intellectual property right to adhere to an advance so unique that the rights holder dominates the marketplace. In most cases, the availability of near substitutes keeps the practices of the patentee under such tight control that the right of exclusivity falls far short of an economic monopoly. And even if some monopolization does occur, it is short-lived: after the patent term expires, the product or process protected becomes subject to normal market forces. In contrast, business methods exist on something of a meta level, one step abstracted from products and their manufacture. Because they deal with the way that transactions in their fields are accomplished, they affect not just products in competition, but also the competitive process itself. By exerting potentially distortive constraints on that process, exclusive rights in business methods undermine the very basis for assuming that patents are not monopolies. Indeed, there are some business methods—frequent flyer programs are one example—that have an especially disruptive effect. They establish relationships (between suppliers and customers, or among customers and products) that are difficult for outsiders to break. In those situations, the impact of the patent could extend well beyond the time when the right expires or is invalidated. To be sure, Judge Rich understood that business method patents pose special dangers. He believed, however, that other patent prerequisites, such as novelty and nonobviousness (inventiveness), had blocked business method patenting in the past; he also thought that these requirements would prevent the patenting of most business methods in the future. Given that frequent flyer miles are not too different from the trading stamps that were ubiquitous to the supermarkets of the 1960s, and that there were junk bonds long before Michael Milken convinced the financial community that they were legitimate investment vehicles, there is intuitive appeal to his argument. Nonetheless, there are significant reasons to discount its force. First, a judge’s inability to imagine new business methods does not tell us very much because the developments that meet the requirements of patent law are precisely those that cannot be foreseen easily. Second, this sort of analysis merely changes the time frame in which the problem arises. Thus, supermarket trading stamps probably do anticipate frequent flyer miles, but so what? Had a patent on a method of procuring consumer loyalty through coupon awards been patented in its time, it too would have disrupted an industry. Third, the Patent and Trademark Office (PTO) has a notoriously difficult time examining in areas where the birth of the field is not coextensive with the advent of patenting, for in those cases there is a great deal of prior art and practice beyond the reach of the examiner corps. Thus, courts need to tread carefully when bringing new subject matter into the ambit of protection. Indeed, the business method patents that have issued to date demonstrate the problem, for many arguably encompass well-known methods. Finally, and most important, by focusing the discussion on questions like novelty, the court managed to obscure the real issue, which is whether there is a good justification for extending patents to business methods. In fact, the failure to offer such a rationale is consistent with other contemporary developments in intellectual property law, such as the increased protection now afforded to celebrities’ enterprises through expanding rights of publicity and to trademark owners through federal adoption of anti-dilution law. However, the absence of a justification is problematic. It raises a question about whether there is a real need to impose the costs of exclusivity on the public. Without a theory of harm, determining the scope of infringement is impossible. And if the only reason for creating exclusivity is to provide a way for someone to make more money, then protection becomes a one-way ratchet—once it adheres, it can only expand. This paper takes the position that patenting business methods is different enough from other forms of patenting to warrant careful consideration of its value. After describing State Street and the limitations suggested by Judge Rich and others, I examine the possible rationales for recognizing business method patents. I conclude that none of the standard theories support exclusive rights in this area, and that the benefits of protection are far outweighed by the costs. I end with a look at how business method patenting could be controlled, and at whether taking steps to deny protection to business methods would violate the United States’ obligations under the TRIPS Agreement.

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  Contract, not Regulation: UCITA and High-Tech Consumers Meet Their Consumer Protection Critics

  Richard A. Epstein

  The question of how the rules of consumer protection law apply to the digital marketplace has been the subject of protracted disputes for many years now, given the effort to apply and extend the principles of Article 2 of the Uniform Commercial Code to the novel situation of digital consumer transactions. I first became involved in this issue some years ago when I was hired as a consultant to write on behalf of the Uniform Computer Information Technology Act (UCITA) for the Digital Commerce Coalition. My task was to respond to the Federal Trade Commission’s Initial Notice Requesting Academic Papers and Public Comment regarding Warranty Protection for High-Tech Products and Services. Thereafter I commented on various issues concerning UCITA in two letters that I wrote in my individual capacity in defense of UCITA when the issue came before the American Bar Association in 2003. The question I addressed then—and the one I address now—is: to what extent do the rules found in Article 2 of the Uniform Commercial Code (UCC) carry over to the world of transactions in high-tech computer products? In an ideal world, that transfer of legal rules—insofar as they relate to contract formation, express or implied warranties, and unconscionability—to this new context should be total. In both areas the purpose of the law is to facilitate voluntary transactions, whether by sale or by license, for the benefit of both parties. In the present situation, however, some deeply embedded conceptual weaknesses of the UCC on these critical issues make any such carryover problematic. The effect of bad rules should not be inflated by expanding their reach. My analysis, therefore, often proceeds at two levels. First, it offers a critique of some of the basic UCC rules as they apply to ordinary transactions in goods. At other times, it acknowledges that the adverse impact of these unsound rules is not disastrous to commercial success when confined to the sale of goods. However, my analysis then explains why carrying over these rules into the markets for high-tech computer information products is likely to produce greater dislocations. My main purpose is not to propose any fundamental reform of Article 2. Nonetheless, any effort to ask how the old UCC rules apply to the licensing of computer information technology necessarily entails some review of the basic UCC rules from which UCITA derived. My objective in writing this chapter is not to treat the law of contract as though it were a zero-sum game, such that any advantage gained by a high-tech company is followed by an equal disadvantage to the consumers who buy its goods. Quite the opposite, any transaction that produces no gain will quickly disappear as no one will wish to incur the positive transaction costs to no avail. Similarly, transactions that produce winners on one side and losers on the other will have a very short half-life: the losers do not need market power to abstain from the market altogether. Over the long haul, therefore, the only viable markets are those which generate gains to both parties, giving each side an incentive to participate. In the first instance, the goods and services themselves drive this success. But in many cases, the size of the joint gain depends on the contractual provisions under which these products are licensed or sold. The better the practices, the greater the velocity of the transactions, and the larger the overall gains.

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  Mandatory Retirement for Supreme Court Justice

  Richard A. Epstein

  The Supreme Court today exercises power over the lives of citizens that, in important respects, exceeds that of other branches of the federal government. Life-tenured justices wield this enormous power for two or three decades and the only process that provides some accountability to the people occurs as new appointments regenerate the Court. Because justices now serve so long, that process occurs only rarely and irregularly and may be affected by a justice's desire to have a successor appointed by a like-minded president. Some presidents have great influence on the Court's future decisions by the happenstance that they receive three or more appointments; other presidents have little or no influence because no vacancies arise during their terms. This collection of essays by eminent legal scholars provides a comprehensive, balanced, and compelling examination of a largely neglected, but very important, subject. What are the harmful consequences of the lengthening tenure of Supreme Court justices? Do those consequences suggest that reform is necessary or desirable? Can the problem be remedied by congressional enactments or is a constitutional amendment required?

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  Second-Order Rationality

  Richard A. Epstein

  For much of my academic career I have defended a version of libertarian theory of limited government, a government whose central function is protection of private property and voluntary exchange against force and fraud (see Epstein 1985, 1995, 1998, 2003). This recognizes a role for taxation and eminent domain, not only for the common defense but also for creating infrastructure and controlling and regulating monopoly power. The battle between rational choice theory and behavioral economics—and the common errors shared by both—often calls that classical liberal theory into question on two key issues. The first is the level of rationality, coherence, and stability in the formation of human preferences. The second is the relative strengths of egoism and altruism in human affairs. In this chapter I confine myself to the first of these two inquiries, which spawns two further lines of investigation. One involves the formation of political order in a state of nature. The other swirls around the contemporary debate over the scope of government regulation of economic activity once that political order is secured, often with the view of placing a minimum safety net under individuals that protects them not only against the bad behavior of other individuals but also against the vicissitudes of nature and, most relevant for this exercise, their own bad judgment and limited capacity. This explicit behavioral rejection of libertarian assumptions has profound consequences for the role of government in social and economic life. Starting from the behavioralist baseline makes it much more plausible to insist on a variety of paternalist regulations whose main purpose is to protect individuals from their own biases and excesses. For example, Oren Bar-Gill has suggested that such legal controls might be appropriate in credit card transactions, on the grounds that individual borrowers suffer from a set of biases that includes “weakness of the will,” which leads them to underestimate their level of self-control (Bar-Gill 2004, 1373, 1375), and “optimism bias,” which leads them to underestimate the risk of adverse events, such as loss of job, which in turn leads them to borrow more than they ought (1375– 76). Likewise, in dealing with pension plans and retirement, libertarianism generally allows individuals to make their own choices and opposes government mandates to make contributions into plans such as Social Security or Medicare. Yet Social Security has many defenders, some on the grounds that ordinary individuals do not save adequately on their own (see chapter 10 this volume; see also Diamond and Orszag 2004). This point is subject to dispute, and greater difficulties with Social Security arise from a different quarter. The public choice context gives political leaders powerful reasons to engage in massive wealth transfers, which work best when concealed from public view. In this context, the cognitive biases of ordinary people are likely to kick in because they will be exploited by political actors operating in settings where the institutional correctives are likely to be weaker than in private market settings.

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  The Optimal Complexity of Legal Rules

  Richard A. Epstein

  Legal systems must deal not only with the cognitive limitations of ordinary individuals, but must also seek to curb the excesses of individual self-interest, without conferring excessive powers on state individuals whose motives and cognitive powers are themselves not above suspicion. Much modern law sees administrative expertise as the solution to these problems. But in fact the traditional and simpler rules of thumb that dominated natural law thinking often do a better job in overcoming these cognitive and motivational weaknesses in resolving private disputes. Three types of rules that help achieve this result are rules of absolute priority, rules that judge conduct by outcomes not inputs, and rules that use simple proration formulas to allocate benefits and burdens. Matters are more complex in dealing with government actions, where the optimal strategy typically involves the fragmentation of government power, and the limitation of public discretion.

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  The Protection of Liberty, Property, And Equality

  Richard A. Epstein

  This article discusses areas that involve political issues, which contain ‘preferred freedoms’ or ‘suspect classifications’ that attract higher standards of review. The economic and property interests that are subject to some key exceptions are also discussed. The article traces the pattern of judicial review as it applies to political, moral, and social issues, and moves on to the parallel discussions for matters of economic liberty and private property.