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  Weak and Strong Conceptions of Property: An Essay in Memory of Jim Harris

  Richard A. Epstein

  By no stretch of the imagination would I count myself as a close friend of Jim Harris. Until May of 2003, I only knew of his work from afar. But when! came to Oxford to deliver the Hart Lecture, he graciously invited me and my wife to Keble College for lunch, where on one occasion I got the full flavour of the man. Undeterred by his blindness, he was at once courteous, lively, and insistent. He cared deeply about the field to which he made such a major contribution, and seemed primed to take on new intellectual challenges in the years to come, before his life was so tragically cut short. On this occasion, I hope to honour the memory of this splendid gentleman by critiquing his general views of property. In so doing, I shall concentrate first and foremost on his comprehensive contribution to the theory of property law, his magisterial Property and Justice, which energetically puts forth his general theory in great detail. I shall add to that discussion analysis of particular portions of his work in his various articles, including his Maccabaean Lecture for 2001, 'Reason or Mumbo Jumbo: The Common Law's Approach to Property', in which he takes me to task for the strong positions of property rights that I took-and continue to hold-in my 1985 book Takings. There is much at stake in this debate, for the vision that one takes of property is important not only in the way in which individuals organize their relationships with each other, but also in the way in which individuals organize their relationship to the state. The dispute that I am about to address, moreover, is not one that originates with Harris or myself, but has a distinct lineage that can be traced back to the earliest times. Indeed, this dispute covers two debates going on side by side, the one with rights to property, as some resource tangible or intangible, external to the self, and the liberty interest that people have in the way in which they lead and conduct their own lives. For these purposes, I shall think of the two positions as the weak and strong positions respectively. The weak position on liberty treats it as covering the right to bodily integrity and freedom of motion, but refuses to give automatic protection to claims for the use and disposition of labour. The weak position on property follows similar lines, and accepts and defends the rights of exclusion and possession, but does not accord similar heft to the rights of use and disposition. The strong position places the rights of use and disposition on a par with those of exclusion, both for liberty and property. Jim Harris was a distinguished defender, perhaps the most distinguished defender, of the weak side of the debate. With a sensible pragmatic streak, he disdained grand theories that treated liberty and property as the central conceptions of the modern state. I have long fallen prey to that temptation and have unhesitatingly backed the strong position, which I will once again do here. In order to do so, however, I shall point to matters on which Harris and I are in strong agreement, as well as those on which we differ. Part (i) of this Chapter begins by setting out a short summary of the Harris position. Because of its necessary brevity, this part ignores much of the subtlety and erudition that he brought to its defence. In dealing with these issues, Harris, in the tradition of British academic lawyers, was suspicious of the generalizations that count as the stock in trade of political theorists. In consequence, he tended to avoid claims of two sorts. First, he rejected arguments that property rights were in some logical way necessary to and inherent in the human condition. Rather, they were to be understood as part of the social context in which they arrived. The second is the intellectual converse of the first: he distrusted universalist demonstrations that purport, usually erroneously, to show the internal contradictions of the traditional common law synthesis of property law, which synthesis he judged to be just about the right approach. It is a pleasure to respond to someone who thinks that you are wrong on the merits, as opposed to those who regard your position as so incoherent that it does not deserve mention in the first place. Part (ii) of this chapter contains the exposition of the alternative view of liberty and property and their relationship to other key elements within the law. I hope to show that the weak account leaves too much running room for government discretion, which in turn results in the adoption of legal rules that have strong negative consequences for overall social welfare. In addressing this issue, it is worth noting that Harris showed a lively interest in economic theory, and had a good eye for some of its excessive pretensions to govern the world. But at the same time, his engagement with economics was largely defensive. He did not use it to explain, for example, the relationship between private and common property rights, even though he did talk in places about that connection? And, as an Englishman, even with broad comparative interests, he spent relatively little time in dealing with the constitutional aspects of the subject in light of the American experience,6 with which I have been intimately engaged for a long time. Yet the combination of those two fields makes a stronger case for the more strong view of property protection, even though the current state of American law cuts much in Harris's defence of the weak view. Part (iii) of this chapter carries the common law analysis forward into the constitutional domain. In it, I argue that much of the weakness of American constitutional law relies on its systematic adherence to the weak conception of property and liberty.

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  The Story of Price Waterhouse v. Hopkins

  Cynthia Estlund

  For thousands of law students since 1989, and especially for female law students heading into large law firms, the story of Ann Hopkins and her quest for partnership at the large accounting firm of Price Waterhouse has had a personal resonance that few decisions studied in law school do. The decision has served both as a cautionary tale about the dilemmas and double standards faced by many professional women and as an encouraging story of legal recognition. The Supreme Court, nudged along by a persuasive expert witness and a perceptive trial judge below, seemed to "get it"—to understand something of the unique hurdles faced by women in high-level professional and managerial jobs dominated by men. But what did the Court "get" about Ann Hopkins' case? On one view, what the Court got was the "double bind" that women in Ann Hopkins' position often faced. Women who sought or held jobs branded as male faced the double-edged sword of sex stereotypes: The job demanded stereotypically male behavior—aggressiveness, bravado, toughness. But women who exhibited the stereotypically male traits demanded by the job were penalized for failing to fit stereotypic expectations for their gender-to act like women. Women who conformed to female stereotypes, or who were assumed to fit those stereotypes, did not fit the job; yet women who defied those stereotypes did not fit their gender. In the plurality's words, "[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. " But did the discrimination lie in the "catch 22" or "double bind"? Or was there actionable discrimination as well in each half of the bind? If the former, the decision captured something distinctive about the dilemma faced by many women in male-dominated jobs, particularly in white collar and professional jobs in which interpersonal skills and relationships were central. Here women often were met not with outright hostility, as in many blue-collar jobs and workplaces, but with a complex social obstacle course. But the "double-bind" version of Price Waterhouse would have relatively little to say on behalf of others-men or women, racial, ethnic, or religious minorities-who experienced one half of the double-bind but not the other. A broader reading of Price Waterhouse would condemn decisionmaking that is tainted by group stereotypes: either by the assumptions about individuals that flow from group stereotypes or by the demands on individuals to conform to stereotypes. In particular, that broader reading has been a linchpin of a generation-long effort to find in Title VII's ban on sex discrimination some basis for the protection of gender nonconformists-gay men and lesbians, "effeminate" men and "masculine" women, transsexuals, and others whose sexual preferences and outward behavior defy conventional gender stereotypes. The fate of Price Waterhouse remained, and remains, in the hands of subsequent courts and Supreme Court majorities. Indeed, the issues that most occupied, and most divided, the Court in Price Waterhouse—which concerned the proper analysis of "mixed motive" cases under Title VII—have been largely superseded by subsequent legislation and caselaw. But the decision is still important for its insights into what counts as an unlawful discriminatory motive under Title VII. A close look at Ann Hopkins' quest for partnership, which is recounted in her memoir, and the Supreme Court's sympathetic account of the hurdles she faced, helps to illuminate the present meaning of the decision.

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  The Story of Griggs v. Duke Power Co.

  Samuel Estreicher

  I was a graduate student at Cornell University's School oflndustrial and Labor Relations when Griggs v. Duke Power Co. was handed down on March 8, 1971. Griggs has been called aside from Brown v. Board of Education, "the single most influential civil rights case" in the past 40 years. Coming out of the "New Left" movement of the 1960s and chastened by the election of Richard M. Nixon in 1968, we assumed the worst from a Supreme Court whose Chief Justice was a Nixon appointee, Warren E. Burger, formerly a court of appeals judge in Washington, D.C. We knew that the legality of racially segregated schools depended on the distinction between de Jure and de facto discrimination, and we expected the Court to draw a similar line with respect to racially segregated workforces in the Griggs litigation.

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  Practical Institutionalism

  John A. Ferejohn

  There are practical reasons to try to understand how institutions work in order to use them to help shape our collective lives together. Hobbes and many others have thought that problems of large and complex societies to pursue even widely shared purposes. A natural response to these "organizational" problems is to try to construct institutions that will permit a society to coordinate the activities of its dispersed and distrustful people. A great deal is known about traditional collective action problems and how they might be solved or at least mitigated. But, institutions can do more than permit people to coordinate their activities in order to achieve their goals. They can also help to create and transform the goals themselves and, beyond that, help transform the identities and self conceptions of the agents. To the neo-Hobbesian, these further possibilities are nuisances that make unnecessarily difficult the solution of collective action problems. If aspirations of the agents cannot be held fixed, it will be very hard to understand the sense in which a problem is "solved" at all. But, from a wider perspective, the wider potentiality of institutions offers the inviting prospect that new kinds of collective issues can be recognized and addressed. Part of the aim of this essay is to try to envision some of these wider opportunities.

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  Judicial Independence in a Democracy: Institutionalizing Judicial Restraint

  John A. Ferejohn and Larry D. Kramer

  The Constitution establishes the judiciary as a co-equal department of the federal government and protects its members from political interference by granting them life tenure and prohibiting Congress from reducing their salaries. Yet Congress is free to decide whether to create lower federal courts at all, to define their jurisdiction narrowly or widely, to establish rules of procedure, and to determine the size of the judiciary's budget. Moreover, federal courts are not only staffed by presidential nominees, they must also rely on the executive branch to enforce their judgments. From this perspective it is hard not to agree with Alexander Hamilton who noted in Federalist 78 that the judiciary, having neither purse nor sword, is the “least dangerous branch.” Hamilton, it must be said, offered this as assurance to those who feared the new constitution might establish independent and unaccountable judges as threats to liberty. But he surely worried that the complex ways in which federal judges were embedded in the political structure and their dependence on the political branches might undermine their capacity to withstand political pressures. A contemporary observer might be forgiven for thinking, after two centuries of practice, that these concerns about the independence of the federal courts were overblown. Starting with its clever and cautious stance in Marbury v. Madison, the Supreme Court has proved more than capable of protecting its institutional powers relative to the other branches and, even more, relative to the state governments.

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  Fundamental Breach of Contract Under the UN Sales Convention: 25 Years of Article 25 CISG

  Franco Ferrari

  Of the many topics Professor Šarčević focused his attention on during his very distinguished career, I will deal with one only, namely the United Nations Convention on Contracts for the International Sale of Goods (hereinafter: CISG), which is celebrating its twenty-fifth anniversary. This anniversary provides an opportunity for a brief examination of one of the key provisions of the CISG, namely Article 25, the dispositive provision that defines the concept of "fundamental breach", a concept which is of central importance to the CISG's remedial system. This provision's central importance stems from the fact that a "fundamental breach" triggers particularly far-reaching legal consequences. Thus a party's ability to avoid the contract (even without fixing an additional time-limit), the buyer's entitlement to substitute delivery, as well as the question of who carries the risk in case of delivery of defective goods, all depend on a fundamental breach. From what has just been said, it follows that Article 25 itself does not lay down the various instances in which a fundamental breach is relevant; rather, it constitutes a "tool with the help of which to distinguish between a fundamental and a simple breach of contract". As for the legal consequences of the fundamental breach, these must be derived from the various more specific provisions of the CISG or from the contract. This is why it is correct to emphasize, as some commentators have done, that Article 25 cannot be applied alone, but only in conjunction with other provisions which contemplate a fundamental breach as a prerequisite. The reason for limiting particularly drastic legal consequences (such as the avoidance of the contract) to cases in which the breach of contract is fundamental lies, on the one hand, in ensuring the performance of the contract despite a (non-fundamental) breach to avoid considerable unnecessary and unproductive costs, such as those associated with the return or storage of the goods. On the other hand, this limitation helps to contain the number of cases in which the damaged party may take advantage of the defaulting party's breach to revise an agreement based on a specific economic situation or to shift the risk of a change in the market conditions to the other party.

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  Offer and Acceptance Inter Absentes

  Franco Ferrari

  The first of its kind, this comprehensive Encyclopedia on comparative law takes stock of present-day comparative law scholarship. Written by authorities in their respective fields, the contributions in this accessible book cover not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries legal systems and as a whole presents an overview of the current state of affairs.

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  Liberal or Learned? European and US Antitrust Approaches to the Professions

  Harry First

  The recent European interest in bringing antitrust enforcement to the professions mirrors a recent (as well as long-standing) antitrust enforcement interest in the US. Although the legal issues in both systems are, in some sense, similar, the legal analyses used by the courts in Europe and in the US are different. Whatever the differences in legal analyses, however, the judicial results in the two systems actually end up being distressingly similar and, from my point of view, distressingly wrong. This essay focuses on three recent cases decided by the European Court of Justice that involve the legal issues raised in enforcing antitrust law against the professions—Wouters, Arduino, and Fiammiferi—and a comparison of those cases with similar cases in the US. The essay begins with some general observations about applying antitrust to the professions. The next part of the essay discusses the three European Court of Justice cases. The essay then explores how the legal issues decided in those cases have been handled by the US Supreme Court. The essay concludes with some comparison of the two systems, arguing that both have given too much deference to professional regulation.

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  Abuse of Dominance and Monopolisation: How to Protect Competition Without Protecting Competitors

  Eleanor M. Fox

  Ever since the early 1980s, US antitrust law has steered a narrow path. It protects consumers from price increases resulting from anticompetitive conduct that increases market power, and otherwise (except for rare cases), it protects consumer welfare by not intervening in the marketplace. US antitrust law does not protect competitors from hard or rough competition; it does not protect them from unfair, even fraudulent, competition. Rather, it stays its hand, lest it err on the side of interfering with the presumed efficiency of the marketplace. Not all US cases fit this paradigm. When lower courts diverge, however, appeals seek to keep them in their place. Thus, in Law Offices of Curtis V Trinko v. Bell Atlantic, the amicus brief for the United States Department of Justice and the Federal Trade Commission argued to the Supreme Court that Section 2 of the Sherman Act is not an abuse of dominance law, and that even a monopolist controlling a facility that competitors need in order to compete (the local telephone loop) have no affirmative antitrust duty other than to refrain from increasing their monopoly power by anticompetitive means. They have no duty not to leverage their power. They have no duty of non-discrimination and fair dealing. They have no duty to provide a level playing field for competitors. Article 82 EC has a different center of gravity. While it would condemn all conduct that Section 2 of the Sherman Act condemns, it reaches more broadly to regulate abuses by a dominant firm, including uses of power that may not increase power. A dominant firm has affirmative duties not to exclude competitors by acts not on competitive merits. Thus, if Microsoft demands exclusive contracts from personal computer makers and internet service providers merely in order to shift substantial market share from the Netscape browser to the Microsoft browser, this conduct would presumably run afoul of Article 82 EC even while it would be seen as competitively neutral under Sherman 2 (absent additional facts showing, for example, as in the US case, that the conduct also conferred or preserved power of Microsoft). ‘Mere’ unjustified use of monopoly power that significantly suppresses the chances of competitors is probably illegal in the EU. It is probably not illegal in the United States. To be sure, in many circumstances, applications of Article 82 EC and Sherman Section 2 converge. When a dominant firm uses market power to block competition in ways that directly and immediately harm consumers, it violates both sets of law. Such a restraint both preserves or increases power and harms competitors. Italy v. Commission (British Telecom) is a paradigmatic example. British Telecom, a state-owned enterprise, barred private telecom agencies from forwarding international calls. Article (ex) 86 EEC unblocked the restraint. Where, however, a restraint is exclusionary of competitors, but not exploitative of consumers, most US courts demur. In the face of a European prohibition against such conduct, Americans might be heard to proclaim: ‘We protect competition; you protect competitors.’ This essay explores the taxonomy of exclusionary restraints, from those with the purpose and effect to lessen output and increase prices (these are power-increasing and are consensus wrongs), to those that are significantly exclusionary but may not augment power, to those that are likely to reflect firm efficiencies and result in lower prices. It explores also the legal formulations, predominantly from the United States and the European Union, that condemn or encourage the conduct.

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  Right to Legal Aid and Economic, Social and Cultural Rights Litigation

  Paula Galowitz

  The actual enjoyment of social and economic rights is diminished in the absence of mechanisms within the framework of the judicial system to facilitate the effective protection of the rights. One of the most fundamental and important human rights is the guarantee of effective access to justice. As Mauro Cappelletti has written, “effective access to justice can thus be seen as the most basic requirement—the most basic ‘human right’—of a system that purports to guarantee legal rights.” Various formulations of the right of access to justice will be examined in this chapter, including the right to equal justice, the right to fair and equal access to justice and the right to a fair hearing. There must be an ability to secure meaningful access to the appropriate forums to enforce economic, social and cultural rights (‘ESC rights’). As an integral part of this access, legal representation must be available for those unable to afford it. The relevant forum must have the capacity to appoint legal aid if necessary to ensure access to justice and traditional fairness.

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  In the Pink Room

  Stephen Gillers

  Trial lawyers have been compared to actors, performance artists, playwrights, and directors. All comparisons are valid, to a point. Unlike playwrights, lawyers cannot make up information, but short of lying or suborning perjury, trial lawyers can do a great deal to influence their audience—the jury. Whatever adverse testimony a trial lawyer cannot explain away or counter with competing testimony, she will seek to contextualize in a way that benefits the client or, failing that, harms him as little as possible. The trial lawyer will do that in cross-examination and in the two speeches to the jury—the opening statement and summation—that bracket a trial. She will use all the tools of play acting, to the extent of her ability, including gesture, facial expression, sarcasm, rhetorical questions, word choice, simile and metaphor, silence, tone, and volume. Her opponent will do the same, constructing a different narrative with the same body of evidence. A trial can, in fact, be seen as a contest between dueling narratives. Duelists are not ordinarily inclined to aid each other. Yet litigation, like traditional duels, does have rules and a few of them do require a lawyer to assist an opponent's case even if it means harming her own. Given the adversarial nature of trials, and the natural desire of lawyers to win, these rules are not always honored. In the following story, they were not.

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  Legal Ethics: A Debate

  Stephen Gillers

  Readers of this book and of the documents printed in the earlier volume have abundant information with which to evaluate my contribution and Jeffrey K. Shapiro’s response. This audience does not need to be led through the texts. But Mr. Shapiro says several things that deserve reply, the better to facilitate independent judgment. I will limit my comments to those matters. Mr. Shapiro claims that the Office of Legal Counsel (OLC) memoranda of January 9 and 22 answered the question the client posed. They did their job. He argues that the question posed did not ask the authors to address the Torture Convention or Statute. He quotes as proof the “second sentence” of the memoranda. The first sentence of each memo is also relevant: “You have asked our Office’s views concerning the effect of international treaties and federal law on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.” Mr. Shapiro’s point seems to be that the second sentence, beginning “In particular,” limits the scope of the inquiry to the Geneva Conventions and the OLC had no responsibility to go beyond them or to explain the perceived limitation. Of course, both sentences were written by the authors of the memoranda. We do not (yet) have the text of the client’s original request. But taking these sentences as the full scope of the request, I reject Mr. Shapiro’s effort to defend the omission of the Torture Convention and the Torture Statute in the way he does. First, the initial sentence does refer to “international treaties and federal laws,” which encompass the documents not mentioned or discussed. At the very least, then, the authors should have made it clear that they were ignoring the broader language in the first sentence so the client was put on notice. Second, a client’s interest in a legal document “in particular” does not limit the lawyer’s responsibility to respond fully to the client’s broader, stated request. It means only that within the broader request, the client has a “particular” interest. Certainly, the authors should have entertained that possibility. Instead, the authors narrowly interpreted what is at best an ambiguity—was the “In particular” sentence meant to be restrictive or only to identify one concern “in particular?”—without telling the client how they had decided to resolve the purported ambiguity. Third, even if the client had specifically limited its request to the Geneva Conventions by name, it would still have been irresponsible to fail to address the Torture Convention and Statute, or at least to identify their existence and say that they were not addressed. It is the duty of the lawyer to recognize relevant sources of law, not the client. If a client asked whether a particular issue of stock “violated the Securities and Exchange Act of 1934,” surely we would expect the lawyer, in answering that question, either to address the legality of the issue under the 1933 Securities Act if relevant, or at the very least to make it clear that he or she was not doing so. Lawyers have been successfully sued for such mundane omissions as the failure to tell a client who identifies his need as “workers compensation” that he also has a tort claim arising from the same incident. Here, the duty to reference other sources of relevant law was particularly high because the two memoranda concluded that detainees did not enjoy any protection from torture under Geneva. A reasonable—and I suggest an inevitable—reading of the January memoranda was that the detainees existed outside of all legal protection. But as the Justice Department later acknowledged on August 1, after more than six months had elapsed, other sources of law did protect them, if barely. (More than two years later, the Justice Department disowned the August 1 memo as insufficiently protective of detainees.)

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  The Tendency to Exceed Optimal Jurisdictional Boundaries

  Clayton P. Gillette

  The Tiebout Model at Fifty commemorates the fiftieth anniversary of Charles Tiebout’s enormously influential 1956 article, “A Pure Theory of Local Expenditures,” and honors the contributions of Wallace Oates as expositor and popularizer of the Tiebout model. While Tiebout’s hypothesis is the touchstone for the economic analysis of local government, Oates gave the theory empirical content and brought the idea into the realm of public economics. This insightful volume is edited by William A. Fischel, who also organized the conference in June 2005 at which the papers and commentaries were first presented. The conference was cosponsored by the Lincoln Institute and the Rockefeller Center for Public Policy and Social Studies at Dartmouth College. In his preface, Fischel states that Tiebout’s paper is the single most influential article in the field of public economics, at least if one measures influence by citations in scholarly journals. Tiebout proposed an alternative to the political process for determining the demand for local public goods. Households would reveal their preferences by choosing their residence among local governments. People would “vote with their feet” (not Tiebout’s term) instead of the ballot box, choosing the desired level of services among the many local governments that make up most American metropolitan areas. Tiebout’s is that rare paper whose influence has broadened with the passage of time. This book reprints Tiebout’s classic paper, and several distinguished chapter authors and commentators evaluate the model’s ongoing influence on the disciplines of economics, law, and political science. Others present original research in the Tiebout-Oates tradition. They illuminate public policy issues such as exclusionary zoning, tax competition, school choice, constitutional federalism, fiscal equalization, and real estate capitalization.

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  Termination of Parental Rights

  Martin Guggenheim

  Since early times, families have adopted children in all parts of the world. Records describing adoption in Ancient Rome, Babylonia, and China show the similarities and differences to the adoption practices we know today. This comprehensive resource provides both historical and current information on all aspects of adoption, from many countries and religions, including Africa, Britain, Canada, China, India, Islam, Japan, Jewish, Mexico, Mormon, and others. It provides information on the cultural, ethical, financial, legal, medical, psychological, and social implications of adoption. It highlights perspectives of the birth parents, adopting parents and the adopted child; open and closed adoption; national and international adoption; and grandparent and single-parent adoption. Primary documents, biographies of those in the adoption field, and sidebars identifying special facts relating to the history and experience of adoption, complete this most exhaustive resource that no library serving adopting parents, adoptees, or practitioners in the field will want to be without.

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  Group Report: What is the Role of Heuristics in Making Law

  Jonathan Haidt, Susanne Baer, Leda Cosmides, Richard A. Epstein, Wolfgang Fikentscher, Eric J. Johnson, Jeffrey J. Rachlinski, Clara Sattler de Sousa e Brito, and Indra Spiecker genannt Döhmann

  In making and applying law, many agents and institutions aim for some optimal solution, yet end up mired in complexity and inefficiency. Their decision-making processes may therefore be improved by the judicious use of simplifying heuristics. In this report we examine some of the ways that heuristics might be used (and should not be used) in the creation and application of laws and regulations. We begin by distinguishing m-heuristics (mental heuristics used by a person) from l-heuristics (legal heuristics as simplified procedures encoded into law). The human mind appears to be prepared by evolution to use certain m-heuristics when making moral judgments. To the extent that l-heuristics map onto m-heuristics, they are likely to be cognitively easy and to seem legitimate to many participants. We next examine the lawmaking process and the steps at which m- and l-heuristics might be used by specific agents. In the third section we take Roman law as a case study in which l-heuristics were widely and effectively employed. We consider the lessons of ancient Rome for modern law. In the fourth section we consider legal and moral objections to the use of heuristics, such as constitutional prohibitions on using factors such as age, sex, and race in decision making, or the need for explicit listings of reasons to allow for judicial review. In the fifth section, we examine the social and institutional factors that support or inhibit the effectiveness of heuristics. We conclude with suggestions for further research, including the question of how to explain and justify l-heuristics in ways that people will understand and accept.

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  Evaluating the Estate Tax Exposure of the SCTC Trust Termination Provisions

  Brant J. Hellwig

  The South Carolina Trust Code (SCTC) became effective January 1, 2006. It is the most significant codification of the law affecting estate planners and probate lawyers since the introduction of the South Carolina Probate Code in 1987. The SCTC codifies or recodifies some of the existing South Carolina statutory and common law, clarifies some issues not previously dealt with legislatively or judicially in South Carolina, and changes some of the existing South Carolina law. This important and timely publication explains the SCTC in depth, discusses how it affects South Carolina Trust law, and advises practitioners about the SCTC's impact on the estate planning and probate practice.

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  Compared to What? Tiebout and the Comparative Merits of Congress and the States in Constitutional Federalism

  Roderick M. Hills Jr.

  The Tiebout Model at Fifty commemorates the fiftieth anniversary of Charles Tiebout’s enormously influential 1956 article, “A Pure Theory of Local Expenditures,” and honors the contributions of Wallace Oates as expositor and popularizer of the Tiebout model. While Tiebout’s hypothesis is the touchstone for the economic analysis of local government, Oates gave the theory empirical content and brought the idea into the realm of public economics. This insightful volume is edited by William A. Fischel, who also organized the conference in June 2005 at which the papers and commentaries were first presented. The conference was cosponsored by the Lincoln Institute and the Rockefeller Center for Public Policy and Social Studies at Dartmouth College. In his preface, Fischel states that Tiebout’s paper is the single most influential article in the field of public economics, at least if one measures influence by citations in scholarly journals. Tiebout proposed an alternative to the political process for determining the demand for local public goods. Households would reveal their preferences by choosing their residence among local governments. People would “vote with their feet” (not Tiebout’s term) instead of the ballot box, choosing the desired level of services among the many local governments that make up most American metropolitan areas. Tiebout’s is that rare paper whose influence has broadened with the passage of time. This book reprints Tiebout’s classic paper, and several distinguished chapter authors and commentators evaluate the model’s ongoing influence on the disciplines of economics, law, and political science. Others present original research in the Tiebout-Oates tradition. They illuminate public policy issues such as exclusionary zoning, tax competition, school choice, constitutional federalism, fiscal equalization, and real estate capitalization.

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  Conjuring Up a Battlefront in the War on Terror

  Stephen Holmes

  On September 11, 2001, a multinational team of hijackers struck the United States. In response, after “running out of targets” in Afghanistan, the United States invaded Iraq. To explain this swivel of the cannon, commentators often draw a sharp distinction between mere pretexts and the real reasons for the Iraq war. To bring along the American electorate, the administration initially drew on two powerful impulses, retaliation and self-protection. Many Americans supported the United States' invasion of Iraq, first, to avenge the 9/11 attack, and, second, to prevent the United States from being struck without warning by Iraqi weapons of mass destruction (WMDs) delivered by stealth to U.S. shores. When the feebleness of these two reasons for the war became evident, the administration switched to a “humanitarian” justification for the invasion, stressing America's moral obligation to overthrow a malignant dictator who had tortured and gassed his own people. To this purely humanitarian consideration, the invasion's apologists added a complicated theory about the contribution that an Arab democracy, imposed by American might, would make to U.S. security. Because the original rationales were so flimsy and the backstop rationales were so far-fetched, some critics have assumed that the real reasons for the war must lie elsewhere, in secret plans, such as setting up permanent military installations to facilitate swift access to Gulf oil infrastructures in case of a fundamentalist power grab in Saudi Arabia or deposing Saddam Hussein to improve the security position of Israel. But what if 9/11 itself had a decisive psychological impact on the interagency coalition that took the United States into war? The distinction between secret schemes to promote unspoken interests and official rationalizations designed to gull the public has a lot to be said in its favor. But a sharp appearance/reality dichotomy is probably too schematic in this case. More generally, the cynical use of disinformation provides no proof of underlying rationality. There is no reason why a successful manipulator cannot also be psychologically disturbed. Even a purveyor of bogus intelligence can sometimes commit himself to risky action on the basis of supposed evidence that he has not bothered to double-check simply because it neatly corroborates his preconceptions. In other words, the real motivations for the Iraq war may have resembled the public justifications more than is commonly believed. The former, too, may have included a sincerely held conviction that invading Iraq was an “appropriate” response to 9/11. The hawks' hidden thinking may have been just as clouded by fixation, autism, escapism, and tunnel vision as the rationales they improvised for public consumption. This would not be especially surprising, since immense power has never freed its wielders from hallucination.

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  Is Defiance of Law a Proof of Success? Magical Thinking in the War on Terror

  Stephen Holmes

  The War on Terror has displaced the Cold War as the defining framework of U.S. foreign and domestic policy. An ironic consequence is that the most infamous penal colony in a Communist country is now located at Guantánamo Bay Naval Base. We have come a long way since Solzhenitsyn. To Cuba, it turns out, the United States has spread not the blessings of liberty but the rule of manacles, stress positions, cages, and hoods. And Guantánamo Bay is merely one internment facility in a worldwide archipelago of U.S.-administered detention centers where terrorists, real and alleged, are incarcerated with little or no access to the outside world. Legal responsibility for what happens in these camps remains uncertain. But inside them detainees have been, and apparently continue to be, interrogated in a cruel, inhumane and degrading manner. We know that at least twenty or thirty prisoners have died in captivity, apparently from wounds inflicted by their American jailers. The sordid details have been widely publicized. Less evident are the reasons why the U.S. government has created such a system. The most paradoxical justification for what would otherwise be an odious violation of America's system of values is that such behavior alone makes it possible to protect America's system of values.

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  Plato's Dogs: Reflections on the University After 9/11

  Stephen Holmes

  Unblushing members of “the military-industrial-academic complex,” universities make an indisputable contribution to America's daunting power to do good or ill in the world. The principal question facing the authors of this volume is: What contribution can these same institutions of higher learning make to the wise use of America's formidable power? How can our universities help us respond intelligently to the unprecedented perils and challenges of the new century? What politically important role can universities play in this new, complex, changing, and turbulent world? To pose this question is already to suggest that American universities are not now playing the role that they could and should play, that they are not, for example, doing a creditable job helping produce the educated public that we so manifestly lack and need. That more than 50 percent of Americans apparently still believe that Saddam Hussein had a hand in 9/11 provides an unflattering, if not shameful, commentary on the educational preparedness of this country's opinion-making elite. So why have we fallen into this miserable state? Some of the cultural critics included in this volume claim that our institutions of higher education are betraying us politically because they have been suffused with commercial values. Whether persuasive or unpersuasive, this charge is anything but new. In 1918, for instance, Max Weber wrote: “The American's conception of the teacher who faces him is: He sells me his knowledge and methods for my father's money, just as the greengrocer sells my mother cabbage. And that is all. To be sure, if the teacher happens to be a football coach, then, in this field, he is a leader.” According to their more recent and perhaps less humorous admonishers, U.S. universities have now succumbed to the market conception of freedom, oriented to the satisfaction of individual desires, and have thereby irresponsibly shed the civic conception of freedom, which (at some unidentifiable historical moment) involved intense public debate about common purposes. I cannot say that I understand this claim very well, especially given the prominence and persistence of faculty tenure, an antimarket institution par excellence. But, of course, I appreciate as much as anyone the irony of professors who earn money by selling books in which they showcase their dislike or distrust of the market. Those who focus on the continuing commercialization of higher education, admittedly, are not simply self-deluded. Derek Bok, for example, has helpfully drawn public attention to the way the pharmaceutical industry is endangering the independence of biochemical research. Moreover, critics are right who argue that universities, to play a positive role in our political life, must be shielded to some extent from the pressing demands of the private economy. They must not be turned into wholly owned subsidiaries of for-profit corporations. It is reasonable, therefore, to ask universities to disentangle themselves somewhat from the most robust and dynamic part of society, that is to say, America's large and immensely influential profit-making enterprises. But is it realistic to ask universities, as some of my colleagues have done, to attach themselves instead to a political culture of democratic “participation” and deliberation that does not, in fact, exist? “Commercialization,” if the truth be told, is a rather rarefied charge. It is much more common to hear politically tinctured complaints. For instance, right-wing critics of U.S. universities deplore what they perceive as disloyalty, that is, a lack of patriotism. Left-wing critics, by contrast, lament student apathy, that is, an absence of engagement. The two charges have some things in common, but they sound more similar than they actually are. The former is genuinely pernicious, for instance, while the latter is merely frivolous. I want to postpone my discussion of patriotism versus disloyalty for a few pages, so let me now say a few words first about engagement versus apathy. To begin with, “participation” is a very sixties word. It emits a strong aroma of nostalgia for the days of student protest against the Vietnam War. There is nothing wrong with the ideal of participation, in fact, except its ineradicable ambivalence. Participation is good or bad depending on the knowledge, habits, skills, motives, psychoses, and antipathies of the participators. To say that universities should foster greater and more intense participation is therefore nonsensical; and no one who says it actually means us to take it seriously as a platform for university reform. There is no point trying to supervise other professors' theorizing, to be sure. But I would suggest that, given the scarcity of time and the urgency of the need, we refocus, not on how a reformed university might conceivably promote the most demanding personal and social ideals, but, instead, on the urgent political and social problems that we can help solve with the materials at hand. There is no use proposing a remedy, however, before we have a clear understanding of the disease from which the patient is suffering. So we should start with diagnosis.

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  A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and ‘International Standards’

  Robert L. Howse

  This chapter examines an extraordinary mechanism for the creation of new international legal norms that is contained in the WTO Technical Barriers to Trade (TBT) Agreement. As interpreted by the Appellate Body—the WTO’s highest judicial instance—the TBT Agreement applies to a very wide range of domestic regulations, arguably excluding only the measures that deal with certain aspects of food and agricultural health, and the safety regulations that are defined as falling within the exclusive province of the WTO Agreement on Sanitary and Phytosanitary Measures (SPS). One of the key disciplines of the TBT Agreement is the obligation for WTO members to use ‘international standards’ as a ‘basis’ for their technical regulations, unless the international standards are ineffective or inappropriate (Article 2(4)). However, international standards themselves are mainly of a voluntary nature and, in most cases, do not result in binding treaty commitments; quite a few of these standards are the creation of non-governmental bodies, or private/public partnerships in which industry is the driving force. By virtue of Article 2(4) of the TBT Agreement, as interpreted in WTO dispute settlement, a very broad range of normative material, including privately generated norms in some cases, is converted or transformed into international legal obligation. The incorporation of treaty norms from other regimes into the WTO—such as the main WIPO conventions on intellectual property rights—has been widely commented on; such incorporation inevitably changes the nature and implications of the obligations in question, by virtue of attaching them to a trade-driven system of dispute settlement and enforcement. But the TBT Agreement is different; it does not incorporate or transform existing international law, but instead turns a mass of normative material that never before had the status of international law into international legal obligation. While most of the chapter sketches how this automatic law-making mechanism functions in the context of the TBT Agreement as a whole, the conclusion considers the implications for ‘progressive’ regulatory democracy.

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  The Appellate Body, the WTO Dispute Settlement System, and the Politics of Multilateralism

  Robert L. Howse and Susan Esserman

  The end of the Cold War gave rise to renewed optimism about the capacity of multilateral institutions to respond to global political, economic, and social challenges. Within a decade, however, the East/West divide would be replaced by other conflicts, schisms, and complexities—the debate over globalization, the related development challenge, global terrorism and nuclear non-proliferation, and the rise of China as a regional and perhaps global superpower. The politics of multilateralism appear as difficult and fragile as ever—whether the ‘climate change’ negotiations (Kyoto) or the role of the UN Security Council in policing the use of force. Recently, expert commissions have issued reports on reform of two crucial multilateral for a—the United Nations and the World Trade Organization (WTO), a sign of recognition that multilateral institutions must change to respond to new challenges. In the case of the WTO, the challenges have been dramatized by the collapse into acrimony of two ministerial meetings within a five-year period: Seattle in 1999 and Cancun in 2003. Both meetings were to be crucial in advancing a new round of multilateral trade negotiations. While the Doha Round negotiations sputter along despite the failure at Cancun, many of the WTO's members are lowering trade barriers through bilateral and regional trade pacts, lending further uncertainty to the continued relevance and viability of multilateralism. But there is another side to this story. For during this very period of tumult in the political councils of the WTO, its legal institutions have played a major role in managing international economic conflict, preventing trade disputes from escalating out of control, and enhancing the legitimacy of the organization. The WTO possesses what no other international regime has been able to achieve, and what no regional trade agreement can apparently duplicate with success: a set of largely universal ground rules for trade and economic relations with a central judicial authority that can interpret these rules in a consistent and impartial manner over time. In a time of political disagreement, when much of the attention of political leaders has been on solving other problems, the dispute settlement system, the Appellate Body above all, has come into the spotlight. The ability of the Appellate Body to resolve conflicts in sensitive areas (such as trade and the environment, as well as the special and differential treatment of developing countries) has been viewed by some as judicial activism, particularly when judged against political and diplomatic stasis. But what may be labelled as ‘activism’ could be more aptly called ‘effectiveness’. While the balance between political and judicial institutions in the WTO has been debated and questioned, a genius of the existing system was the creation of judicial institutions that could be effective even where political change was difficult.

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  The World Trade Organization and Labour Rights: Man Bites Dog

  Robert L. Howse, Brian Langille, and Julien Burda

  Like other post-World War II international economic institutions, the multilateral trading system ( the General Agreement on Tariffs and Trade) was an integral part of “embedded liberalism”—it was the trade trading system of that era, a counterpart to the progressive, interventionist welfare state; in other words, to a particular political and social vision, including at the same time respect for diverse ways of implementing this vision. The general kinds of worker protection that emerged from the Depression and the New Deal era, whether in America or Europe, were largely assumed as an acquis by this “embedded liberalism,” but this went hand in hand with the notion that the trading regime should be based on deference of states to each other's different approaches to, or cultures of, domestic regulation. Thus, an early dispute settlement ruling in the GATT, Belgian Family Allowances, rejected the notion that an importing country could, consistent with the letter and spirit of the GATT, make the treatment of important products depend on the exact nature of the system of social protection in the exporting state. More generally, the era of “embedded liberalism” was one where increasing “progressive” domestic regulation in a wide range of fields went hand in hand with deep cuts in tariff protection brought about through negotiating rounds in the GATT. The combination of progressive government domestically with negotiated multilateral trade liberalization produced extraordinary levels of growth, and improvements in living standards in the countries that were key founding members of the GATT. As embedded liberalism in the developed world began to unravel due to the economic pressures and changes of the 1970s and 1980s (the end of the gold standard, stagflation, etc….), the GATT dramatically expanded its membership to countries with the most diverse social economic and political conditions. The implicit normative floor for multilateral trade liberalization, supplied in “embedded liberalism” by a broad overlapping consensus on the post-New Deal regulatory and welfare state, did not apply in these new conditions, both because it was no longer apparent that one could avoid trade offs between domestic interventionism and open global markets, and also because large numbers of countries were welcomed as members of the multilateral trading system, without any attention to whether they shared even a minimalist conception of appropriate domestic public interest regulation. It is this legacy that has framed the fundamental divide today that is referred to as the “trade and labour debate”. Should there be a normative floor for international economic transactions (as there is domestically in every developed liberal democracy, even if in some cases (the US) it is rather minimal)? Those who believe in such a floor do not (despite what is sometimes claimed by their opponents) seek to define it in terms of one domestic system's standards; rather, policy divergence, in the post-“embedded liberalism” world is assumed, and it is international human rights, a movement that interestingly emerged at the same time as the collapse of the implicit normative floor of embedded liberalism, that provides the guiding idea; the International Labour Organization, increasingly, has had its focus shifted to defining a human-rights based normative floor for globalisation (as expressed in the idea of “Core” labour rights). Although the Membership of the WTO accepted in the 1996 Singapore Declaration the concept of such a “normative floor”, it did so on the basis of de-linkage of the normative floor from the institutions and functioning of the WTO itself, while assuming that WTO law was and should be an obstacle to enforcing the floor through trade sanctions. It has equally been apparent that the WTO has not, for example, sought to make compliance with the floor a condition for accession of new countries to the WTO. Underlying the WTO position has been a narrative of globalisation, widely shared among the trade policy elite, and consistent with the overall neo-liberal ideology, that puts in question the normative floor and indeed views it as antithetical to economic development: development comes through a Darwinist process of opening a countries' markets to cut-throat global competition and allowing the winners to survive; in this process entire generations of workers and their rights and well-being may have to be sacrificed to progress and growth. On this view labour standards have often been characterized as producing “rigidities” in markets and frustrating development. Labour rights are thus a cost and a tax upon development—one which international investment will seek to avoid and which rational governments should refrain from imposing. Labour rights are a set of luxury goods to be purchased with the wealth generated by growth and after the event.

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  The WTO Impact on Internal Regulations: A Case Study of the Canada-EC Asbestos Dispute

  Robert L. Howse and Elisabeth Türk

  The WTO is facing increasing criticism. This was highlighted during the third ministerial meeting in Seattle, where massive street protests disrupted the conduct of the conference. Apart from demonstrations, a series of groups used the Seattle ministerial meeting to articulate a range of views on the future of the trading system, in most cases far more subtle than a blanket or dogmatic rejection of globalisation or even the WTO. Non-governmental organisations and public policy-makers from all over the world met to analyse WTO policies and their potential impacts. Amongst the most common criticisms was the WTO’s alleged role in impeding national governments from granting adequate protection to the environment, or addressing consumer interests and national health and safety concerns. Different understandings concerning the extent to which WTO rules constrain domestic regulatory autonomy have manifested themselves in recent high-profile trade controversies. In the famous Beef Hormones case, the USA successfully challenged the EC’s ban on beef injected with natural and synthetic growth hormones. The regulatory measure in question had been adopted in a response to European consumers’ concerns about potential health effects of such hormones being present in foodstuffs. Similarly, in the case of genetically modified organisms (GMOs), European consumers’ reluctance towards genetically modified foods triggered the European institutions to adopt detailed regulations regarding risk assessment, release authorisation, subsequent monitoring and labelling of GMOs. The WTO consistency of this regulatory framework was repeatedly the subject of controversy in the TBT Committee. So far the European scheme has not been subject to dispute settlement at the WTO. Although there have been few cases where domestic regulations on health, safety or the environment have been directly challenged and found in violation of WTO law, the WTO rules may already be having a chilling effect on the strengthening or development of such domestic regulatory schemes in other WTO members, thereby constraining or impeding democratic choices. If the WTO is to regain citizens’ confidence, it has to prove its ability to balance the freedom of governments to pursue legitimate domestic objectives with the need to secure the benefits of trade liberalisation. Given the economic experiences prior to the Second World War, the legal framework created by the founding fathers of the GATT focused on the elimination of discriminatory practices, either explicit border measures such as tariffs and quotas or domestic regulations and policies that discriminate against imports. Thus, the fundamental constraint on domestic regulations in the original GATT was that such regulations must not discriminate either against imports or between different GATT member states [National Treatment and Most-Favoured-Nation Treatment (MFN)]. With the increasing success of the GATT in the elimination of discriminatory measures, attention eventually came to focus on non-facially discriminatory policies and regulations thought to have negative impacts on trade. Sometimes, the existence of different regulations in different countries might in itself increase the transaction costs of trade, requiring producers to adapt products to the regulatory environment in different national markets. Also, and perhaps more importantly, protective discrimination might be hidden or structurally embedded in regulatory schemes that themselves do not explicitly contain nationality-based distinctions. For example, domestic regulations might require a particular technology on safety grounds to which domestic producers had already adapted their production, while a variety of technological approaches might in principle be possible to satisfy the regulatory concern at issue. Because of the possibility that countries might simply shift protectionism from explicit facially discriminatory measures to regulatory schemes that were covertly or structurally discriminatory, the GATT jurisprudence evolved so as to encompass protective discrimination not reflected in explicit facial classifications on the basis of national origin, and in particularly the test of ‘like products’ in the National Treatment obligation of the GATT, came to be interpreted in such a manner as to provide some scrutiny of non-nationality-based regulatory distinctions, to ensure that those distinctions were not merely surrogates for (obviously illegal) nationality-based ones.

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  The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence

  Daniel J. Hulsebosch

  One of the great ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the ‘ancient constitution’ and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related liberties of Englishmen while overseas. The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight. While the ancient constitution was for England, Coke did suggest that central elements of common law culture, such as real property tenures and the right to representative government, might migrate to the king's other dominions. In Calvin's Case, he and the other royal judges held that the king's subjects outside England had access to the common law in the literal sense that they could sue in the English common law courts, but only for subject matter over which those courts had jurisdiction, like land located in England. They could not litigate in the English common law courts over subject matter in royal territories outside England. But Coke did consider the predicament of English subjects who travelled to the colonies and wished to provide them some legal protection, though not the entire constitutional canon. In judicial dicta here and ambiguous statements there, he suggested that some English liberties might travel with Britons outside England and into the king's other territories. Coke, an architect of the gothic English constitution, also sketched the outline of a minimalist imperial constitution. This is not how Americans have viewed Coke, not in the early modern period and not in recent historiography. In American legal culture, Coke is a champion of the common law, constitutional liberty, and judicial review. There is, in short, a myth of Sir Edward Coke, with much historical reality to support it. But that myth also incorporates glosses on Coke's work added in the late seventeenth and eighteenth centuries to resist imperial regulation and that have been confirmed by modern historians. While Coke's focus was on the English nation, his myth became most powerful on the British Empire's periphery. This chapter examines the assumption that Coke believed that his common law jurisprudence extended to the colonies and attempts to recover the original intent, as it were, of the ancient constitution in the mind of one of its framers. A reevaluation of Coke's imperial jurisprudence in its context helps recast that question in terms of how common law culture was packaged for export, how it circulated through the Atlantic world, and how English-speakers drew upon it in concrete controversies. Coke's work in the early seventeenth century was critical to Atlantic legal history. At the same time that the English began expanding beyond the realm to create what became known as an empire, they also innovated upon old scripts of fundamental law to define their national constitution—to define the English nation. Constitutional ideas and imperial expansion developed simultaneously and reciprocally. Situating Coke's understanding of the relation between realm and dominions, between English liberties and imperial law, in its early modern context will enable us to approach colonial American legal culture free of anachronism and appreciate its creative eclecticism. Coke was born in 1552 and served as a Member of Parliament, solicitor general, attorney general, chief justice of Common Pleas, and chief justice of King's Bench. He wrote extensively about English law and published most of his works in English, which marked the beginning of vernacular legal literature in England. In addition, his jurisprudence symbolized the establishment of core common law liberties as constitutional liberties. Although Coke's obsessive style has always frustrated critics, he did seek to transform the practices of English law and governance into a system of jurisprudence. He conveyed that jurisprudence to future generations of lawyers in the four-volume Institutes of the Laws of England, the prefaces to eleven volumes of Coke's Reports, and his own published judicial opinions, which figure large in his Reports. Among these ‘leading cases’ was Calvin's Case (1608), which Coke called 'the greatest case that ever was argued in the hall of Westminster' and that remains a cornerstone of the Anglo-American law of citizenship. In these writings, he celebrated parliamentary government and sought to limit the royal prerogative, the Crown's discretionary authority outside Parliament and beyond the common law. Coke's support of representative government and judicial power were intertwined; they were two ways of vindicating legal liberty. In sum, Coke's work helped create the Anglo-American idea of a constitution: a national legal environment anterior to the positive law of kings, their courts, and legislatures. In this sense, he was a ‘framer’ of the English constitution.