Faculty Chapters

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  Political Fragmentation and the Decline of Effective Government

  Richard H. Pildes

  What is the most fundamental challenge facing democracies today? One major concern is democratic backsliding, regression, or the rise of “illiberal democracies.” Another concern, closely related, is the rise of “populism,” at least in certain forms, such as those that are fundamentally anti-pluralist and view the “people” as a “moral, homogenous entity whose will cannot err,” or, in less virulent form, those that express impatience with institutional structures and norms—such as judicial review, independent institutions, or separation of powers—that stand in the way of direct, unmediated expression of the “popular will.” Good reasons exist for these concerns across many democracies today. But, in my view, the deepest and perhaps most enduring challenge to democratic governments across the West that has emerged in recent years is what I call “political fragmentation.” Put briefly, political fragmentation is the dispersion of political power into so many different hands and power centers that it becomes extremely difficult to marshal enough political power and authority for governments to function effectively. To take the United States as one example, there is little question that recent decades have seen a dramatic decline in the effectiveness of government, whether that is measured in the number of important bills Congress is able to enact, the proportion of all issues people identity as most important that Congress manages to address, or the number of enacted bills that update old policies enacted many decades earlier. Social scientists now write books with titles like Can America Govern Itself? The inability of democratic governments to deliver on the issues their populations care most about poses enormous dangers. At a minimum, it can lead to alienation, resignation, distrust, and withdrawal among many citizens. Even worse, it can spawn demands for authoritarian leaders who promise to cut through the dysfunction of the political process. And, at an even greater extreme, it can lead people to question the efficacy of democracy itself and become open to antidemocratic systems of government. The rise of a more prosperous China, and its model of one-party, authoritarian capitalism, increases the risk that some citizens in democratic states might become tempted to look to nondemocratic systems in search of effective governance. Analysis of modern democracies has not begun to recognize the emergence of political fragmentation as a major challenge, or to grasp the range of implications it has for the possible future of democratic processes, institutions, and governance. Political fragmentation is related to polarization, populism, and reversion to authoritarianism. But the most profound question it poses to democracies—both for those that seem precarious and those that currently seem stable—is whether the ability to sustain legitimate democratic authority is coming into question. In Section 18.2, I define political fragmentation more fully and describe its various manifestations, including the different forms that fragmentation takes today in proportional-representation (PR) political systems and in first-past-the-post (FPTP) ones. Section 18.3 then explores the causes of political fragmentation, with an eye to whether the fragmentation we are currently experiencing across democracies reflects temporary, contingent forces or more enduring ones. In particular, I focus on the communications revolution, which I argue is a central driver of political fragmentation. This section argues that the challenge the communications revolution poses to democracy goes beyond concerns with intentional manipulation, fake news, “hate speech,” or anonymous speech funded through “dark” (undisclosed) money. Even apart from those issues, the communications revolution enhances the ability to undermine the authority of many institutions, both public and private. In the political sphere, this revolution propels political fragmentation and the under- mining of sustainable political authority. Democratic governments must be able to function effectively. Yet the rise of political fragmentation makes this increasingly difficult – and no simple fixes for this emerging challenge loom on the horizon. Are we becoming destined to experience temporarily successful forces of disruption, which are then soon undermined in turn by other new disruptive forces, in an endless cycle that makes effective governance far more difficult to sustain?

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  Litigating the Climate Emergency: The Global Rise of Human Rights-Based Litigation for Climate Action

  César Rodríguez-Garavito

  This chapter presents the results of a comprehensive study of the universe of rights-based climate cases filed in domestic courts and in regional and international judicial and quasi-judicial bodies between 2015 and 2021. Part I offers an overview of human rights-based climate change (HRCC) litigation. Part II analyzes the legal rules and principles emerging from HRCC lawsuits and court decisions around the world. Part III offers conclusions about the potential and limitations of HRCC litigation in advancing climate action. The chapter argues that the regulatory logic and the strategy of HRCC litigation should be examined at the intersection of international and domestic governance. Litigants have predominantly followed a two-pronged strategy. They have (1) asked courts to take the goals of the climate regime (as set out in the Paris Agreement and IPCC reports) as benchmarks to assess governments’ policies and (2) invoked the norms and enforcement mechanisms of human rights to hold governments accountable for such goals. In the face of governments’ reluctance in taking the urgent measures that are needed to address the climate emergency, HRCC litigation can be fruitfully viewed as a bottom-up mechanism that provides domestic traction for the international legal and scientific consensus on climate action.

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  Reframing Indigenous Rights: The Right to Consultation and the Rights of Nature and Future Generations in the Sarayaku Legal Mobilization

  César Rodríguez-Garavito and Carlos Andrés Baquero-Díaz

  This chapter analyses the 30-year struggle of the Sarayaku Indigenous people against oil extraction in their territory in the Ecuadorian Amazon as a largely successful and iconic instance of transnational legal mobilization. We argue that a key factor underlying the evolution and impact of the campaign is the success of the Sarayaku coalition in contesting the narrow definition of the right to free, prior, and informed consultation (FPIC) advanced by governments, corporations, and most intergovernmental agencies. We posit that the most impactful tactics of the Sarayaku people and other actors in the campaign can be construed as ‘framing’ work. The Sarayaku’s framing tactics included: (i) reframing the legal dispute in terms of the rights of Indigenous peoples to self-determination and the rights of nature; (ii) communicating such frames in ways that resonate not only with courts but also with a broad global audience of environmentally conscious supporters; and (iii) creating a bridge between the Indigenous rights frame and the emerging frame of global action against climate change.

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  Price Fixing: Public and Private Enforcement

  Daniel L. Rubinfeld

  This chapter offers insight into how jurisdictions should approach price-fixing sanctions and in particular, the factors they might consider when determining how to impose deterrence-oriented penalties. It uses an analysis of the U.S. enforcement system as the basis for calls for economists, attorneys, and academics to create a set of tools or guidelines entrenched in economic theory and empirical data. It also suggests conditions under which criminal sanctions, especially those that are custodial, are applicable. Finally, it points to the complexities that arise when one attempts to determine optimal deterrence while accounting for private as well as public enforcement. Further, the appropriate mix of sanctions should take into account the economic literature on the deterrent value of available penalties and the existence of an active system of private enforcement.

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  Critical Legal Empowerment for Human Rights

  Margaret L. Satterthwaite

  This chapter argues that a deep change in the practice of human rights is needed to alter the basic conditions of those who experience persistent human rights violations. Legal empowerment—led by the grassroots, with lawyers and other professionals in supporting, rather than leading, roles—is a crucial part of the justice transformation that is needed. When rights-holders directly engage institutions affecting their lives, they demand that systems become more accessible and responsive to the daily challenges of the people. And when the law and legal systems are actively harming marginalized and oppressed peoples, a critical form of legal empowerment can ensure that they are the authors of their own liberation and demand transformation of the law. Human rights advocates should embrace this reality by becoming reliable partners to movements led by the communities experiencing grave rights deprivations.

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  The Rights to Water and Sanitation

  Margaret L. Satterthwaite

  In the past two decades, the human rights to water and sanitation have emerged and taken their place at the center of discussions about key economic, social, and cultural rights, sustainable development, global health, and climate change. While there was early hope that these rights would provide a strong basis for rejecting the commodification of essential services spurred by neoliberalism, as they were institutionalized, the rights to water and sanitation have in many places been tamed, if not neutralized. And while a confluence of forces have managed to stop or reverse privatization in many states, deep inequalities persist and communities have often been shut out of decisions about water resources. At the same time, the rights have played an important role in the development field, guiding approaches to achieving the sustainable development goals and serving as touchstones in climate debates. Thus, while the human rights framework concerning water and sanitation has accommodated powerful economic imperatives, it still holds promise as a vehicle for governments, courts, and—perhaps most importantly—movements facing the harsh realities of extreme inequality, vulnerability to disaster, and the advancing climate crisis. This chapter provides an overview of the conceptual and theoretical issues behind the rights to water and sanitation and an account of the normative development of the rights in law, and examines the promise these rights hold in the face of intense global challenges.

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  Tax Law, Inequality, and Redistribution: Recent and Possible Future Developments

  Daniel N. Shaviro

  The current age of inequality is also an age of extensive tax and related public economics scholarship about inequality. Three prominent aspects of recent research especially stand out. The first concerns empirical measurement of economic inequality, as it has changed over time. The second concerns different mechanisms for taxing the rich, such as through the taxation of income, wealth, consumption, or gratuitous transfers. The third concerns new uses of the tax system to address poverty. Each of these research areas can, should, and undoubtedly will continue to develop. I will suggest, however, that two further sets of issues raised by inequality demand greater attention than they have heretofore received. The first is normative inquiry regarding why, when, how, and to what extent inequality matters, moving beyond the economic literature's often predominant focus on declining marginal utility. The second is better connecting the analysis of purely economic inequality to that of its other dimensions, such as racial and ethnic inequality. In both areas, given tax law's institutional focus, a key aim should be to offer policymakers potentially usable guidance, by suggesting what practical implications a particular normative view (and/or particular empirical findings) might have.

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  Discovery, Arbitration, and 28 U.S.C. §1782: Rules or Standards?

  Linda J. Silberman

  This chapter assesses whether 28 USC § 1782, which provides for US judicial assistance to obtain evidence for use in foreign or international proceedings, extends to investor-state and/or private commercial arbitral tribunals. The first (and only) Supreme Court interpretation of § 1782 came in 2004 in Intel Corp v Advanced Micro Devices, Inc. Intel involved an application by AMD, a US company, seeking discovery from Intel, another US company, in connection with a complaint that AMD had filed against Intel in the European Commission, alleging a violation of European competition law. An initial question before the district court was whether the Directorate General for Competition that was undertaking the initial investigation was a ‘tribunal’ at all so as to fall within § 1782. A second question was whether a ‘foreign-discoverability or admissibility’ rule should be imposed as a prerequisite to issuing an order to obtain information. In the aftermath of the Supreme Court’s decision in Intel, numerous commentators read the Court’s opinion to suggest that private arbitral tribunals are indeed within the scope of § 1782. The chapter then draws some comparisons with practice in the United Kingdom, looking at § 7 of the Federal Arbitration Act and the 1996 English Arbitration Act.

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  The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute

  Linda J. Silberman

  In recent times, George Bermann is best known and has received high praise for his role as the Chief Reporter for the American Law Institute’s new Restatement of the Law on U.S. Law of International Commercial and Investor-State Arbitration. I too share great admiration and respect for George’s leadership on the ALI project and the extraordinary volume(s) that he and his co-reporters have produced. For that reason, I expect that many of the contributors to this Festschrift in honor of George will focus on various topics taken up in the Arbitration Restatement as well as George’s prolific scholarship in the international arbitration field more generally, including issues addressed in his Hague Academy General Course on Arbitration and Private International Law. Indeed, I myself was initially tempted to select an issue of international arbitration to write about for this tribute. However, George’s expertise and productivity is much broader than international arbitration, and thus I decided to choose a topic in transnational litigation more generally where George has also left a distinctive mark. As just one example of why George Bermann’s name is so well-known to law students around the world interested in international litigation, George was the original and sole author of the popular West Nutshell on Transnational Litigation (2003), now in its second edition with William (Bill) Dodge and Donald (Trey) Childress as co-authors. In addition to being the Chief Reporter on the Arbitration Restatement, George has played an important role at the American Law Institute, serving as an Adviser on several of its other transnational projects, including the recently published Restatement of the Law (Fourth) on the Foreign Relations Law of the United States (2018), the ongoing Restatement (Third) of Conflict of Laws, and the ALI Analysis and Proposed Federal Statute on the Recognition and Enforcement of Foreign Judgments (2006). The latter was the project on which Andy Lowenfeld and I served as co-Reporters, and thus my contribution to this Festschrift stems from that work and focuses on the upcoming need for implementation of the recently negotiated (July 2019) Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Given his participation as an Adviser on the ALI Foreign Judgments project, I am confident that George will share my view about the need for federal implementation of this new Convention.

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  There Are Children Here: Reconceiving Justice for Adolescent Offenders

  Kim A. Taylor-Thompson

  “You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice because, Bobby Bostic, you will die in the Department of Corrections.” With those harsh words, Circuit Court Judge Evelyn Baker sentenced 16-year-old Bobby Bostic to a term of 241 years in a Missouri prison for a series of armed robberies and assaults that took place over the course of a single December evening in 1995. Bobby had not killed anyone, but Judge Baker effectively sentenced him to die in prison for the nonhomicide crimes he committed as a teenager. In 2017, Bobby petitioned the United States Supreme Court to hear his case and to overturn his sentence as unconstitutional under the Eighth Amendment. Seventy-five prominent criminal justice leaders, including former United States Solicitors General Kenneth Starr and Donald Verrilli, former Acting United States Attorney General Sally Yates, and former FBI Director William Webster, filed an amicus brief along with 13 current elected chief state prosecutors and nine former judges requesting that the Court overturn Bobby’s sentence as cruel and unusual punishment. Judge Baker even added her name to the petition for certiorari. Despite the seeming universal condemnation of this sentence as excessive in light of our understanding of the adolescent brain and an adolescent’s capacity to change, the Supreme Court declined to hear the case. Bobby is currently serving a longer sentence than any adolescent offender in Missouri who did not commit murder. He will be eligible for parole in 2091 at the age of 112. What led to this outcome? Bobby and an older teenage friend, Donald Hutson, had not been looking to rob anyone that December evening. But then they happened to see something unexpectedly tempting: a car loaded with Christmas presents. On impulse, the two teens robbed the group of six people who had volunteered to deliver those gifts to the needy in north St. Louis. During the armed robbery, shots were fired by both boys. A bullet grazed the skin of one man in the group who later required a tetanus shot. No one else suffered any physical injuries. Moments later, and only a few blocks away, Hutson and Bobby saw another woman delivering gifts for charity. This seemed to be yet another opportunity to score gifts and money. Bobby and Hutson forced the woman into her car, and Hutson put a gun to her head, demanding money. Although she surrendered her purse, Hutson was not satisfied. Hutson put his hands in her pants, claiming he wanted to check to see if she had any hidden money. The woman later testified at trial that she thought Hutson planned to rape her but that Bobby prevented it and convinced Hutson to let her go. The public uproar immediately following the report of these robberies was swift and intense. The media had featured the armed robberies as top stories and front-page news, expressing alarm at the particularly callous nature of the crimes. When the police arrested Bobby and Donald Hutson shortly after, the public craved vengeance. These offenses occurred at the height of the fear of, and furor over, the supposed coming tide of “superpredators.” The facts of the case, as reported by the media, seemed to confirm the racist myth that these kids were dangerously different: predatory and irredeemable. Ironically, had the media and general public looked beyond that tidy public narrative to examine the grim details of Bobby Bostic’s life, they would have discovered a different story: Bobby and his family were as vulnerable as the needy families that the seven volunteers were looking to serve that evening. Bobby had been born into a world of bad facts. One of four children, Bobby rarely experienced anything approaching security or stability. His family lived in north St. Louis, one of the poorest sections of the city. Throughout Bobby’s childhood, his family had endured the type of homelessness that is perhaps less visible but is nonetheless profoundly destabilizing. They moved constantly from relative to relative just to keep a roof over their heads. Bobby’s mother tried to care for herself and her family, but she struggled with addiction throughout her life. Sometimes the family had to fend for itself. Bobby’s father was absent, so when the kids were hungry, they turned to Bobby. He was the oldest boy in the family. Some days, he would bring home the school lunch that the state provided so his sisters and brother would have something to eat. Other days, when matters got worse, he would steal food for the kids to eat. Bobby tried to step into adult shoes well before he was ready. At age 10, Bobby began experimenting with drugs and alcohol in an obvious cry for help. No one seemed to be listening. Bobby lived and grew up in a community that was on the wrong side of the tracks. As with most kids his age, once Bobby became a teenager he enjoyed spending time outside in the neighborhood. But Bobby would soon learn the perils of his environment. His younger brother, Shawn, was shot in an apparent gang-related turf battle and was left paralyzed. Once again, trauma defined and tilted his world. Bobby lost what little faith he might once have had that anyone could protect him against the very real dangers in his life. He had learned from an early age to rely on himself, and he therefore started carrying a gun for self-protection. Bobby looked for security and comfort wherever he could find them, but such things eluded him. School had the potential to fill that void, but it did not. In fact, shortly before the events that December night, Bobby had dropped out of high school. He had begun to get into trouble with the law and started to amass a number of arrests. Multiple contacts with the legal system did not raise flags or engage any services for him. His mother, despite her own personal demons, did her best to advise and guide him. But as is so often the case with teenagers, Bobby’s peers and neighborhood had louder voices and greater influence. One friend to whom he turned was 18-year-old Donald Hutson. Hutson, the older boy with whom Bobby committed these crimes, has admitted to being the aggressor that December night and has expressed regret that “I put him in that predicament in the first place.” Unlike Bobby Bostic, though, Hutson entered a plea of guilty to all counts of robbery, attempted robbery, assault, and kidnapping. Hutson’s parole eligibility date was in 2020. Following the arrest of the two teenagers, prosecutors extended the identical plea offer to Bobby: 30 years in prison. Prosecutors were not inclined toward leniency. The public outrage over the armed robberies had given them permission—even a perceived mandate—to deliver a harsh response. There certainly was little, if any, public pressure placed on prosecutors to consider Bobby’s age or developmental immaturity as mitigating factors in fashioning a plea deal. But his age and immaturity would later play a determining role in his own assessment of the justice options he faced. Anyone who has spent time with an adolescent knows the difficulty teenagers experience conceptualizing future consequences. It is nearly impossible for a 16-year-old Black boy to imagine his life thirty years from that point. So, it should come as no surprise that agreeing to enter a guilty plea that guaranteed he would not see the light of day again until age 46 proved too much of a hurdle for Bobby. Besides, peers in jail were mistakenly advising Bobby that any sentence he received after trial could not be worse. It is perhaps a testament to the power of adolescent peer influence that he chose to follow their advice rather than the contrary recommendations of both his family and legal counsel. Bobby rejected the plea offer and elected to go to trial. As a teenager, he thought he knew best. He did not. At 16, Bobby was not old enough to drink or vote, but the prosecutor’s office certified him as an adult for trial. At the conclusion, a jury convicted him of eight counts of armed criminal action, three counts of attempted robbery, two counts of assault, one count of kidnapping, and one count of possession of marijuana. During trial, Bobby did not cry. He did not appear remorseful upon hearing the jury’s verdict of guilt. Bobby submitted several letters to the court before sentencing, apologizing for how he behaved when leaving the courtroom after the verdict, explaining why he did not cry even though he felt pain at the announcement of the verdict, and asking for leniency. He also expressed frustration, as the teenager that he was, over the trial and his treatment by the police and prosecutor. The prosecutor asked Judge Baker to impose consecutive sentences on each of the counts. He argued: “These were good-hearted people, all of them. And they ran into two mean- hearted men. They’re not boys; they’re men” (emphasis added).

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  Introduction: Reckoning in the Moment

  Kim A. Taylor-Thompson and Anthony C. Thompson

  Nine minutes and 29 seconds. That was the amount of time Minneapolis police officer Derek Chauvin pressed his knee and body weight on top of George Floyd’s neck, ignoring his desperate pleas to breathe. That single act of brutality ended Mr. Floyd’s life and launched a global uprising. A simple, vulgar truth—one policeman’s violence against a human being slipping into unconsciousness and death—could not be contained and ignored: the world became suddenly and painfully aware that such brazen violence perpetrated by some who are sworn to serve and protect was a daily reality, especially for people of color. Worse still, the violence was casual, normal, even routine. Young Black men are 21 times as likely as their white peers to be killed by police. Blacks are more than twice as likely as whites to be unarmed when killed during encounters with police. George Floyd’s name has now become part of a legacy of state-sanctioned brutality in the American criminal justice system. But, as stark a picture as that paints, it is incomplete. Filling out this grim story is another ugly truth: police officers who engage in racial violence rarely, if ever, face any criminal consequences for taking a life. In fact, without intense and sustained public pressure, Chauvin would likely have escaped prosecution and gotten away with murder. This time, though, the video footage of George Floyd’s torture and murder awakened a complacent public and splintered the landscape. The world erupted—as it should have—because all of us witnessed firsthand that Black lives are at risk and disposable in America today. People across the nation—and around the globe—took to the streets demanding more than justice-as-usual. That audacious step in the middle of a pandemic made clear that the public was unwilling to let George Floyd’s name become just another trending #hashtag. Rote denunciations of the violence also would not quell public outrage. Political leaders rushed to issue statements condemning Chauvin’s actions, but one former prosecutor’s statements did more harm than good. When Senator Amy Klobuchar of Minnesota publicly decried Chauvin’s brutality and called for charges to be filed, her statements fell flat. Klobuchar had served as District Attorney in Minneapolis, and her record there stood in stark contrast to her belated condemnation. Klobuchar had failed to bring charges against multiple officers involved in shootings during her tenure. When Klobuchar was serving as the DA, relatives of victims of police brutality had asked her to bypass the grand jury process because it had become crystal clear that cases involving police violence rarely led to an indictment. But Klobuchar declined to make any substantive changes. In fact, her track record exposes practices that were overly friendly to police officers and largely inattentive to victims of police violence. Public outcry about impunity for police during her tenure ultimately sank Klobuchar’s chances of becoming Joe Biden’s running mate in the 2020 presidential campaign. More important, prosecutors’ complicity in—and inaction against—police violence has inflicted wounds in communities of color that never healed and were (and even remain) painfully raw. The local and nationwide protests surrounding George Floyd’s death made clear that the city—and this country—needed at long last to reckon with racism and racial violence before life would return to anything like normal. But what made this the moment? Why did George Floyd’s death draw an indelible line in the sand? One possibility was that his death came as the culmination of a series of high profile racialized confrontations. In February, Ahmaud Arbery, a 25-year-old Black man, was hunted, shot, and killed by three armed white men as he jogged through a South Georgia neighborhood. Local prosecutors initially determined that the behavior of these three men was “perfectly legal.” The case would have ended there, but a video of the chase and shooting surfaced and went viral. New prosecutors from outside the county were brought in to assess the case. Finally, the three men were charged with murder two months after Mr. Arbery’s death. Then, in March, Breonna Taylor, an emergency medical technician, was fatally shot by three plainclothes Louisville Metro Police Department officers who entered her home on a no-knock search warrant. They had broken into the wrong home. Ms. Taylor’s boyfriend, licensed to carry a gun, fired at these intruders. The police fired more than twenty shots, hitting and killing Breonna Taylor, who was unarmed. Prosecutors did not charge any of the officers in her shooting death. Over the next month, a series of incidents revealed white people weaponizing the 911 emergency system to patrol racial boundaries that they wanted enforced. Almost on a weekly basis, there were online accounts of white people calling the police to report Black people doing nothing more than going about their daily lives. And prosecutors took no steps to charge those callers as a way of exercising some control over the broad misuse of the 911 system. That practice reached an inflection point on May 25, 2020, just twelve hours before George Floyd would lose his life. A white woman, Amy Cooper, dubbed “Central Park Karen,” was caught on video falsely claiming that a Black man with the same last name, Christian Cooper, was threatening her. He had actually been bird watching and asked her to leash her dog in compliance with park regulations. The video showed that he was not engaging in anything illegal even as she was calling the police to report “an African American man threatening my life.” Once again, the all-too-familiar pattern emerged. Amy Cooper was not immediately arrested or charged, although the video demonstrated her false accusation and report. It was only after a public outcry that the Manhattan District Attorney filed charges. This series of events one after the other exposed not only this country’s habit of conflating brown and black skin with dangerousness but also prosecutors’ complicity in tolerating and ignoring disturbing incidents. Perhaps the crescendo of events proved too much to ignore. More likely, the reason that George Floyd’s death brought the country to its knees and its senses was this: we all witnessed this murder. Virtually every single household in America watched the footage, filmed by a bystander. As a country, we were just beginning to grapple with the initial wave of COVID-19. More than half the states had issued some sort of stay-at-home order to slow the spread of the pandemic, so millions of Americans were inside homes, becoming bored with the sameness of the days. When that footage became public, it went viral. Black folks felt almost compelled to watch the recording as the latest life lesson. Maybe it is a survival mechanism or just a common acceptance that Mr. Floyd could have been anyone of us. We could see ourselves in his face; we could feel his fear. We have grown up in a country understanding that on any given day it can take less than ten minutes to turn any one of us into a statistic. But, this time, Black people were not the only ones watching. White Americans likewise could not look away. White people do not typically experience these sorts of lethal police encounters. They are immunized by skin color, privilege, and place. And, in ordinary times, the distractions of work or daily activities would likely have drawn their attention away from the video proof. But these were not ordinary times. So, all of us—regardless of race, place, and position—watched. And what we witnessed took our breath away. We watched that officer’s reflexive disdain as he casually kept his hand in his pocket while deliberately pressing his knee into a man who posed no threat. Having witnessed that criminal act, people around the world expected a rapid response from the prosecution. They didn’t get it. The gap in time between Mr. Floyd’s murder and prosecutorial action seemed inexplicable given what we had witnessed with our own eyes. It also seemed wholly unanchored to any reasonable sense of justice. Instead, with each passing day, public protests amped up and public trust in the integrity of the justice process withered. On the morning after the killing, and hours before the video went viral, the Minneapolis Police Department spokesperson released misinformation in a statement titled “Man Dies After Medical Incident During Police Interaction.” Mike Freeman, the Hennepin County Attorney, held a press conference to discuss the case three days after the killing. He acknowledged that the video was “horrific and terrible,” but he added “there is other evidence that does not support a criminal charge.” Freeman did not wait for the complete review of the evidence before casting doubt on the guilt of the officers. And, of course, his knee-jerk acceptance of the police version of events would later prove wrong. But it is emblematic of a key issue for prosecutors: their cozy relationship with police departments too often blinds them to the criminal conduct of officers.

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  A Progressive Vision: Leading the District Attorney's Office

  Anthony C. Thompson

  Seismic events have shaken the very foundations of the criminal justice system. The murders of George Floyd, Breonna Taylor, and Ahmaud Arbery brought Americans out of their homes and into the streets demanding change. It was remarkable that the protesters were not only people of color; they included a huge cross-section of the public in this country and across the planet. From large urban centers to small towns, America witnessed unprecedented protests and calls for reform. This time, the demands for change did not track familiar paths but instead called for a radical rethinking of our entire criminal justice system. The public insisted that true justice reform meant addressing the impact of structural racism, the overreliance on law enforcement, and the differential experience of justice based on race and wealth. In other words, the public made clear that it expected nothing less than a genuine reimagining of the American system of justice, its policies, and its operations. Not so long ago, that expectation might have seemed little more than wishful thinking. Now it could be within reach. The public awakening and uprisings helped to accelerate true justice reform. But the movement gained traction with the help of an unexpected force: the COVID-19 pandemic. Too easily in the past, criminal justice actors had sidestepped calls for reform, insisting that they simply could not stop what they were doing to engage in a fundamental rethinking of practices and policies given the relentless press of business. But the pandemic forced the entire world to stop. So, the well-worn excuses lost their persuasive power. Instead, a new sense of urgency has taken hold: all who care about justice owe it to ourselves, those protesters, and future generations to take this time to get it right. America simply cannot return to justice as usual. While most of the 2020 protests centered on police interactions with communities of color, the larger criminal justice system also came under scrutiny and indictment. Specifically, the failure of prosecutors to oversee the police surfaced as a basic flaw in the justice system. Indeed, presidential candidates who refused to prosecute police for misconduct had their political aspirations dashed as a consequence of those choices. The catastrophic failure of the criminal justice system to discipline police officers and to hold them accountable has resulted in a deep-seated lack of confidence in the system’s integrity. Too many citizens across the country perceive the criminal justice system as fundamentally unsound because it has consistently failed to protect communities from the lawless behavior of actors whose job it is to serve and protect us. The 2020 protesters angrily turned to prosecutors and demanded that they take responsibility both for their past failures and for leading structural transformation of the justice experience going forward. Of course, the American criminal justice system did not reach this boiling point overnight. In a dangerously misdirected effort to ensure the safety of citizens and communities, this country embarked on a journey of mass incarceration that has proved unsustainable and, even worse, ineffective. In 1972, the United States incarcerated only two hundred thousand of its citizens. Today, that number has exploded to 2.2 million. Although the United States leads the world in its rate of imprisonment, that policy choice has not made us safer. As important, the mass incarceration model has disproportionately affected poor people and people of color, derailing countless individuals, families, and communities. Prosecutors played a critical role in building this system, but they now have the potential—and obligation—to reimagine it. They must dare to redirect the system because there can be no turning back. The concept and practice of “progressive prosecution”—the main theme throughout this book and its individual chapters—have come under attack by the political right. But competing with those critiques has been a growing number of calls from the left urging more radical change to the criminal legal system. Years of racial disparities, favoritism of wealthy defendants over poor defendants, and the continued proliferation of mass incarceration have led some to insist on abolishing the criminal legal system as we know it. Calls to “defund the police” have prompted more comprehensive conversations at the local and national levels about the role of policing and what it takes to keep communities safe. Similarly, calls to abolish the system are becoming a catalyst for broader discussions of the role of the criminal legal system, particularly in communities of color. While these conversations are both timely and necessary, they are, by definition, long-term projects that will not result in immediate changes. And while those conversations are beginning, it is incumbent on current prosecutors, researchers, and advocates to address the existing racial injustices that are affecting individuals and communities on a daily basis. Quite simply, we cannot let the perfect be the enemy of the good or, in this case, the necessary. What is necessary is a prerequisite: embracing a progressive, race-alert vision. Some practitioners will undoubtedly balk at the concept of “vision” as, at worst, a meaningless trope or, at best, a term that belongs in the private sector rather than the justice sector. But that sort of limited thinking is precisely what has enabled the haphazard decision-making that led to mass incarceration and uneven applications of justice. Dismantling the system of mass incarceration will take more than individual prosecutors applying the brakes in particular cases. Redirecting the justice system will require a transformational vision that makes race a focal point in its operations and policies. This means using a race-alert lens in all prosecutorial decisions, including the basic choices of whether to engage the system at all and to what end. A progressive, race-alert vision will require that prosecutors assess where and how they spend their time. Progressive thinking around prosecution means being less beholden to the wealthy and organized and more accountable to those marginalized communities that they also serve but that often lack voice within our system. Right now, prosecutors tend to have strong relationships with monied interests within the community including businesses, property owners, and organized donors. These connections will remain important because no section of the community should be ignored. But prosecutors cannot continue to prioritize these relationships over other, less influential ones. Instead, prosecutors must seek out and forge bonds with marginalized communities that do not possess either the wealth or the political heft to wield influence in traditional ways. Progressive prosecutors must recognize that categories such as “victim,” “witness,” and “accused” are rarely fixed and are more often interchangeable. Given that fluidity, prosecutors will need to find ways to engage with all members of their communities—even those who have been accused of crimes, whether major or petty. To make this vision transformational, prosecutors will need to lead in new ways. By listening more and allowing communities to articulate their concerns, prosecutors might develop solutions collaboratively with those who have a better chance of keeping communities safe. People most affected by the justice system often have a clearer sense of what keeps their neighborhoods safe and what does not. Rather than developing a view and then seeking buy-in, prosecutors should look to co-create solutions with justice-affected communities. Listening is one key part of the process. Transparency is its partner. Chief district attorneys will need to think more carefully about how communications happen and what means of communication are used. In some instances, this will mean working with communication firms to fully utilize conventional media as well as social media and nontraditional outlets. This also means attending community events where the prosecutor is not the featured speaker but is simply one voice in the community. Perhaps most important, given the nature of the protests in the aftermath of George Floyd’s death, prosecutors will need to review and revise their relationships with police departments and police unions. Because of law enforcement’s investigatory function, there needs to be a healthy working relationship between the department and the prosecutor’s office. But too often that association has become so close that it threatens the integrity of the exercise of discretion, particularly with regard to officer-involved violence. The familiarity of these relationships often leads to a prosecutor’s inability to judge the quality of the information provided by police agencies as well as a discomfort in charging law enforcement personnel when necessary. Prosecutors’ offices need to establish protocols and practices that maintain sufficient distance that enables them to assess and evaluate officer conduct and veracity. Finally, this new vision of the prosecutor’s office will have to reimagine everything from internal leadership to training. The information provided at orientation and during in-service training, as well as the criteria considered relevant for promotion, will all have to be included in this new vision of how the office operates. And the elected prosecutor will need to decide how she wants the office to be viewed in the community and then work to make that a reality. Of course, this leads inexorably to questions of leadership and engagement at the intersection of ideas, perspectives, and experiences. This chapter offers a framework for developing a progressive vision and then outlines ideas for leading the prosecutor’s office from a position at the intersection of perspectives, experiences, and stakeholders. In the twenty-first century, the prosecutor—more than any other actor in the criminal justice system—must be able to take into account a range of voices in making justice decisions, else she runs the risk of tacking too closely to one perspective and missing the wide effects of practices and policies. The progressive prosecutor must also commit to learning the interplay of race, gender, and class in the operations of the criminal legal system.

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  All Kings in the Kingdom of Ends?

  Jeremy Waldron

  Kant’s “kingdom of ends” formulation uses a political model to illuminate some moral ideals. Kant scholars have mostly failed to explore what we might think of as the politics of the kingdom of ends, and how far it reflects Kant’s own political ideas—his Rousseauian and republican ideas. My paper will look at the kingdom of ends through the eyes of a political philosopher. Among other things, the paper will consider Kant’s view that a king—if there is one—ought to rule in a republican spirit. And it will reject the interpretation that sovereignty in the kingdom of ends is reserved for God: the whole point of the model is that people should think of themselves as sharing in sovereignty. There is also a question about the relation between the kingdom of ends and Kant’s observations on dignity in the Groundwork. Is dignity a concept within the model—the dignity of a law-maker—or is it something with real application in moral life, which the model of a law-maker helps illuminate?

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  Desanctification of Law and the Problem of Absolutes

  Jeremy Waldron

  “The problem of absolutes” refers to the difficulty of grounding and defending absolute prohibitions in a legal system that is rationalized on the basis of means-ends rationality. (An example might be the difficulty in identifying an absolute prohibition on torture that is not susceptible to being reinterpreted, read down, or negotiated away.) In the present paper, I associate this difficulty in the first instance with Max Weber’s account of the rationalization of law and the distancing of law from any sense of sacred or transcendent obligation. But other developments need to be considered as well. I argue that the problem is as much about morality as it is about law. The two law and morality develop together in a complementary way, and the problem of legal absolutes tends to be matched by a corresponding difficulty with moral absolutes, just as the desanctification of law tends to be matched by a desanctification of morality.

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  International Legal Theory: A Dialogic Conclusion

  Joseph H. H. Weiler

  It is the nature of all law books, and edited books in particular where authors are constrained in the space available to them, that oftentimes readers, if they could, would love to put a question, seek a clarification, or even contest one or more propositions in what they read. My role here is to be a “Consul of the Readers” and to put such questions to some of the contributors to this excellent volume. The book is interesting and timely: finding side by side an array of different theory approaches to international law. The authors did not have the benefit of seeing the whole when writing their specific contributions—and maybe only few readers will take the time to read the book cover to cover. My questions to the various authors are, however, informed not only by the specific contributions but by the perspective of seeing the individual trees and the forest as a whole.

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  Quis Custodiet Ipsos Custodes? Philip Alston

  José E. Alvarez

  The chapter explores the contributions made by Alston’s three reports as Special Rapporteur on Extreme Poverty and Human Rights that address the human rights responsibilities of the United Nations, the World Bank, and the IMF respectively. In these reports Alston criticizes the United Nations’ failure to accept responsibility for UN peacekeepers’ actions in spreading disease in Haiti, the World Bank’s restrictive interpretations of its mandate, and the IMF’s failure to advance a human rights framing for its ‘social protection’ policies. The chapter highlights the reports’ contributions to general debates over the meaning of the ‘rule of law’, whether (and how) international organizations are ‘subject’ to human rights, the contribution of ‘managerial’ enforcement techniques, and the limits of ‘legal’ accountability.

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  Cosmopolitanism and Cultural Heritage

  Kwame Anthony Appiah

  Addressing colonial history and (post)colonial continuities is a major challenge for the Humboldt Forum, and will decisively shape the activities of this cultural institution. This volume features essays and conversations of prominent museum experts from around the world who have supported and advised the Humboldt Forum in its development. Through their statements, they take part in international discussions such as the intense debate about provenance and restitution of ethnological collections.

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  Interview by Donatien Grau

  Kwame Anthony Appiah

  In almost thirty interviews, Donatien Grau probes some of the world’s most prominent thinkers and preeminent arts leaders on the past, present, and future of the encyclopedic museum. Over the last two decades, the encyclopedic museum has been criticized and praised, constantly discussed, and often in the news. Encyclopedic museums are a phenomenon of Europe and the United States, and their locations and mostly Eurocentric collections have in more recent years drawn attention to what many see as bias. Debates on provenance in general, cultural origins, and restitutions of African heritage have exerted pressure on encyclopedic museums, and indeed on all manner of museums. Is there still a place for an institution dedicated to gathering, preserving, and showcasing all the world’s cultures? Donatien Grau’s conversations with international arts officials, museum leaders, artists, architects, and journalists go beyond the history of the encyclopedic format and the last decades’ issues that have burdened existing institutions. Are encyclopedic museums still relevant? What can they contribute when the Internet now seems to offer the greater encyclopedia? How important is it for us to have in-person access to objects from all over the world that can directly articulate something to us about humanity? The fresh ideas and nuances of new voices on the core principles important to museums in Dakar, Abu Dhabi, and Mumbai complement some of the world’s arts leaders from European and American institutions—resulting in some revealing and unexpected answers. Every interviewee offers differing views, making for exciting, stimulating reading.

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  The Philosophy of Work

  Kwame Anthony Appiah

  This chapter identifies three domains of philosophical questions about work. First, an ontological issue: What is work? This question is both historical and conceptual, as questions in social ontology usually are. Second, an ethical issue: How does work fit into the good life? The hard problem here is to substitute, in new economic conditions, for the four main things a good job currently does: first, produce the goods and services we need, while also providing people with income, sociability, and significance. These are issues on which many popular writers on the “Fourth Industrial Revolution” and on globalization have, of course, written for some time. But what’s lacking, the chapter claims, is serious organized reflection on the normative issues raised by these challenges. And that leads to the third cluster of concerns: How should law and other sources of normative authority be configured to allow work to contribute to the flourishing of workers, and how should the opportunities and rewards of work be shared?

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  The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924 Odol Opinion of the Elberfeld Landgericht

  Barton C. Beebe

  Frank Schechter introduced the concept of trademark dilution to American readers in his 1927 Harvard Law Review article “The Rational Basis of Trademark Protection.” He concluded the article by noting that his formulation of the concept “is fortified by the doctrine that has developed within recent years in German law on this same point.” In waiting until the end of his article to refer to the German case law, Schechter effectively implied that dilution was a home-grown American idea—indeed, that it was Schechter’s own, original idea—and that the German courts just happened to have come up with a similar notion. In fact, Schechter appears to have taken the concept of trademark dilution and much of the rhetoric he used in describing it—including “selling power” and the very term “dilution”—from a single German trial court opinion, specifically, the opinion of the Elberfeld Landgericht in the 1924 Odol case. The enormous significance of the Odol opinion for American and global trademark law still remains unappreciated. In honor of Annette Kur’s path-breaking and decades-long work in forging mutual understanding between the European and American trademark law systems, presented here is the first full translation into English of the Odol opinion, trademark dilution’s “ur-case.”

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  The Problems of Trademark Depletion and Congestion: Some Possible Reforms

  Barton C. Beebe and Jeanne C. Fromer

  This chapter reviews empirical evidence showing that “[t]he supply of competitively effective trademarks is, in fact, exhaustible and has already reached severe levels of” trademark depletion and trademark congestion. “Trademark depletion is the process by which a decreasing number of potential trademarks remain unclaimed by any trademark owner. By contrast, trademark congestion is the process by which an already-claimed mark is claimed by an increasing number of different trademark owners.” To combat these issues, this chapter ends by offering multiple trademark law and policy reforms.

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  Gentrification, Displacement, and Fair Housing: Tensions and Opportunities

  Vicki L. Been

  The Fair Housing Act’s requirement that the secretary of the Department of Housing and Urban Development (HUD) administer HUD’s programs in a manner “affirmatively to further the policies” of the act, which came to be referred to as the “Affirmatively Furthering Fair Housing (AFFH)” requirement was an unusual congressional acknowledgment that just ending discrimination is not enough. Instead, affirmative steps are necessary to undo the horrendous legacy that more than a century of policies and practices by governments, businesses, and private individuals to segregate cities, suburbs, and towns across the United States have imposed upon generations of African American and Latinx individuals. The Fair Housing Act thus mandates that the government must take affirmative measures to undo the pernicious segregation that has resulted from its past actions and thereby begin to correct the many injustices that have resulted from that segregation. Those injustices range from unequal access to good schools, job opportunities, healthy environments, and neighborhoods with low crime and other essential services and amenities to persistent (and growing) gaps between the wealth of whites and African Americans and Latinx individuals. But how exactly local governments should go about dismantling residential segregation is not a simple matter, especially in growing cities, where many formerly affordable neighborhoods that had large shares of racial or ethnic minorities in their populations are becoming gentrified. For the purposes of this chapter, I define “gentrification” as unusual increases in housing costs in low-­income neighborhoods over a sustained period of time. The complexities of how to achieve fair housing as neighborhoods change have spurred decades of debate about place-­based versus people-­based housing assistance. The many thoughtful comments submitted during consideration of the AFFH Rule, and in the debates over regulations regarding HUD’s application of disparate impact standards and its Small Area Fair Market Rent Rule, also reveal the nuanced difficulties of the issues that fair housing goals raise. Of course, complexity can be the refuge of people who prefer the status quo or of those too timid to take a stand until all uncertainty is resolved. But even among those who earnestly want to reduce inequality and achieve diverse and thriving neighborhoods for all in their communities, the dilemmas posed by the obligation to affirmatively further fair housing in the context of gentrification make efforts to introduce effective policies fraught with dangers—of unintended consequences, legal challenges to well-­intentioned judgment calls, and criticism from stakeholders who view the dilemmas differently or fail to see the nuances of the debate. This chapter seeks to make the challenges of fair housing in the context of gentrification more concrete, with the hope that getting beyond abstract arguments will help encourage more productive thinking about how local governments can reduce segregation in gentrifying neighborhoods fairly, in ways that will not result in resegregation in the years to come, and, given the limited resources that local governments have, in the most cost-efficient ways possible. To be concrete, I must ground the discussion in actual neighborhoods, and I have chosen to focus on neighborhoods in New York City because the affordable housing crisis there is especially pronounced, gentrification and fair housing debates are particularly sharp, and the city already has adopted many of the anti-­ displacement tools that other jurisdictions are now considering. The first section seeks to put the questions in context by providing a brief overview of the affordable housing crisis in New York City. The second section gives a summary of some of the main strategies the city has chosen to address that crisis and the opposition to those strategies that has arisen. The third section outlines the hard questions about how best to achieve fair housing in growing cities that the opposition to the city’s proposals (as well as the thoughtful comments of proponents) raises and explores some of those questions with concrete examples of how they might play out in particular neighborhoods. The chapter concludes by exploring how the assessments of fair housing required by the 2015 AFFH Rule, although now no longer required, might provide an opportunity to make progress toward resolving the difficult issues that the previous section discusses.

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  Common Knowledge and Cheap Talk in Democratic Discourse and Law

  Richard R. W. Brooks

  This commentary illuminates key aspects of Shiffrin’s view by appeal to concrete examples and notions from game theory. It underscores the role of law as a means for the public communication of moral commitments by invoking the idea of common knowledge. Our commitments must be known to be shared, that knowledge itself must be known to be shared, and so on ad infinitum. This offers a perspective on the importance of common law from a democratic framework: common law can be seen as a mechanism for generating common knowledge about disputes and their resolution. The commentary invokes another game-theoretic notion, that of the contrast between cheap talk and costly signaling, to illuminate Shiffrin’s discussion of constitutional balancing. Where the interests of speaker and addressee are not aligned, cheap talk lacks credibility, and this is something to which courts need to be sensitive in balancing state and constitutional interests.

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  Introduction

  Paul Craig and Gráinne de Búrca

  This is the third edition of a work that first appeared in 1999. The inspiration and approach remain the same. It is for the contributors to consider how their particular subject has evolved over time, to analyse the principal themes, and to assess the legal and political forces that have shaped its development. This book is not, therefore, a text, and contributors have free rein to tell the story of the evolution of their chosen area as they think fit. A range of forces has shaped and continues to shape the evolution of EU law. The most obvious novelty of the first decade of the new millennium was Treaty reform, culminating in the Lisbon Treaty. The ensuing decade has been turbulent for the EU, as it has been beset by the financial crisis, the rule of law crisis, the pandemic, Brexit and problems concerning immigration. A number of important new chapters have been added to the book, including on the Rule of Law, Judicial Reform, Brexit, Constitutional and Legal Theory, Refugee and Asylum law, and Data Governance, while several chapters from the previous edition, such as the Legal Bases for EU Action, EU Enlargement, and the Regulation of Network Industries have, for a variety of reasons, not been included this time.

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  Transnational Anti-Bribery Law

  Kevin E. Davis and Veronica Root Martinez

  This chapter focuses on private firms’ compliance with norms concerning transnational bribery. It begins with an overview of the regulatory context and obstacles to effective enforcement of norms against transnational bribery. It then reviews how compliance is defined, how it ought to be defined, and obstacles to the achievement of optimal compliance. Finally, it ends by focusing on the next steps forward in this space: (1) greater information sharing from private firms to outsiders in order to better analyze and evaluate the current efficacy of compliance programs targeting anti-bribery, and (2) increased coordination between enforcement agencies at the national and international levels to better tackle transnational bribery.