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  Does Section 5 of the Voting Rights Act Still Work?

  Samuel Issacharoff

  TThe approaching renewal date for section 5 of the Voting Rights Act (VRA) raises questions about both the purpose of the act at this point and the administrative mechanisms the act employs. The legislation was premised on a deep sense of national urgency over the exclusion of black Americans from meaningful political participation in significant parts of the country—those areas that fell with- in the newly created concept of section 5 covered jurisdictions. Section 5 placed political life in those jurisdictions under a form of administrative receivership and treated political activity within those areas as subject to a rebuttable presumption that the continued exclusion of blacks from meaningful political opportunity was the dominant feature of all political decisionmaking in those jurisdictions. The regulatory side of section 5 was based on novel administrative models that responded to the extraordinary sense of urgency over the continued exclusion of black Americans from the exercise of the franchise. First, the act was not a law of general application, but targeted at specified sections of the country based on the levels of political participation in the 1964 presidential election. Second, the act was directed at specific practices, most notoriously literacy tests, that could be “suspended”—in effect, prohibited—and removed as barriers to black electoral participation. Third, the law could build an administrative model around proposed changes to formal requirements for participation, such as voter registration eligibility requirements or poll sites or, after a time, changes in election systems. As is oft repeated, the act was successful beyond the scope of any other civil rights statute. So successful indeed, that if the same eligibility requirements had been applied to the 1968 election instead of the 1964 election, there would have been virtually no covered jurisdictions. Moreover, section 5 of the VRA continued to provide benefits for newly enfranchised black citizens, even after formal barriers were removed. The effect of preclearance was to provide a one-way ratchet for minority political gains. Particularly after the Court’s 1969 decision in Allen v. State Board of Elections (393 U.S. 544), section 5 provided oversight not only on the processes of registering and casting a ballot, but on issues such as annexations and the use of at-large election districts. In Allen, for example, the question presented was whether section 5 would be limited to the ability to cast a vote, or would reach the effectiveness of the vote. In extending the reach of section 5 to include the electoral prospects of minority-preferred candidates, the Court gave invaluable protection to fledgling minority political successes in the early stages of the civil rights era. As Pamela Karlan expressed it, “section 5 contains a natural benchmark that preserves the political gains minority voters have achieved through political or legal action”. That benchmark is “the status quo that is proposed to be changed” (Reno v. Bossier Parish School Board, 528 U.S. 320, 334). The benchmark was preserved by freezing in place local political arrangements and imposing exacting administrative review upon covered jurisdictions. In practice, section 5 coverage denied to local jurisdictions a customary range of political decisions—including districting, terms of office, and electoral systems—that were ordinarily subject to what Justice Souter would term the pulling and hauling of everyday politics (Johnson v. De Grandy, 512 U.S. 997, 1020). As the 2007 date for renewal emerges on the political landscape, it is worth reviewing the exceptional role of section 5 of the VRA. In light of the tremendous political gains for minorities covered by section 5, particularly southern blacks, it may be perverse even to question the need to extend section 5 after its current sunset in 2007. But, as courts reviewing section 5 have noted since its original implementation, the conditions for its success (and constitutionality) involve an intensely practical assessment of the justifications for displacing the normal functions of politics. Perhaps the most salient change in the forty-year history of section 5 may be found in the subject matter of controversy under the act. Whereas the early days of the act were directed to access to the ballot, increasingly the most visible and contested arena for section 5 has been the proper distribution of political power. For example, applying the “nonretrogression” standard of Beer v. United States, preclearance has emerged as a central factor in the decennial redistricting wars (425 U.S. 130, 141). It would indeed be an extraordinary stroke of fortune if the regulatory model developed for the exclusion of blacks from voting in the South in 1965 were to apply in full fashion to the very different set of concerns forty years later. Extraordinary, indeed. And it is my sense that the act is showing its age precisely because of the extraordinary success it had in overcoming the first-order barriers presented in the past. This chapter is focused on the question whether the evolution of politics since the last extension of section 5 in 1982 has altered the conditions for its continued utility as a first-order mechanism to oversee minority participation in the political process. The discussion primarily concerns the preconditions for the section 5 administrative approach to work and the substantial changes that have occurred since 1965. Secondarily, it revisits the type of regulation at stake under the VRA inlight of changed circumstances.

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  Compensation for the Victims of September 11

  Samuel Issacharoff and Anna Morawiec Mansfield

  The September 11th Victims Compensation Fund can only hesitatingly find its place within a comprehensive study of reparation programs. While the origin of the Fund lies in the political exigencies surrounding a perceived threat to the security of the United States, it more accurately reflects the desire by the U.S. Congress to ensure the viability of its nation’s air carriers. Unlike traditional reparations which are closely related to a process of social reintegration of the victim, fostering civic trust and social solidarity, the Fund was not established to bring justice to the victims of the terrorist attacks on September 11, 2001. Also, unlike traditional reparations, the Fund did not seek to serve as a mechanism of corrective or distributive justice as a result of an authoritarian domestic regime or internal conflict. It was initially created out of fear that recourse to the U.S. courts would threaten the precarious financial health of the airline industry. Implicitly, however, such pragmatism reflected a desire by lawmakers that the government be seen as doing all it could to ease the pain of those who suffered so greatly on September 11, 2001. Initial motivations for the program aside, there is no question that the compensation scheme has since taken on a life of its own. Ultimately, the Fund’s contribution to any reparations case-study lies in its cautionary tale about the creation of elaborate administrative schemes that try to individualize recoveries as the mechanisms through which to compensate victims.

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  Constitutional Law Encounters International Law: Terms of Engagement

  Mattias Kumm

  There is a tension inherent to the idea of constitutional self-government, as it is understood by many constitutional lawyers, and the claims to authority made by international law. That tension has long been covered up by the fact that international law covered merely a relatively narrowly circumscribed domain of foreign affairs, was solidly grounded in state consent, and generally left questions of interpretation and enforcement to states. Much of contemporary international law no longer fits that description. International law has expanded its scope, loosened its link to state consent, and strengthened compulsory adjudication and enforcement mechanisms. Not surprisingly, one of the most pressing questions of contemporary constitutional law is how to think about the relationship between the national constitution and international law. In the first decades of the twentieth century, jurisprudential debates among international lawyers thinking about the relationship between national and international law focused on whether the legal world exhibits a monist or a dualist structure. Under a monist conception of the legal world, international and national law constitute one vertically integrated legal order in which international law is supreme. Dualists insist on the conceptual possibility, historical reality, and normative desirability of a non-monist conception of the legal world. Under a dualist (or pluralist) conception of the legal world, different legal systems on the national and international levels interact with one another on the basis of standards internal to each legal system. The debates between monists and dualists have generally subsided. As is often the case with academic debates, the debate did not end with victory for one side by way of a generally recognized knock-down argument. The debate just withered away, as doubts arose about the fruitfulness of the question. After the Second World War a more pragmatic, doctrinally focused approach gained ground. Most post Second World War international law textbooks spend a couple of pages providing a historic overview of debates concerning monism and dualism, point out that practice is pragmatic and not adequately described by a radical version of either, and then move on to engage with specific aspects of domestic practice. This post-Second World War pragmatic style of thinking about the relationship between national and international law is mostly focused on an analysis of constitutional doctrine as it has emerged as a matter of domestic legal practice. But the emphasis on doctrine and practice as opposed to jurisprudential theory should not obfuscate the fact that the approach taken is in an important sense dualist. The relationship between national and international law is generally taught and written about as the foreign relations law of the state, as it has been set out in the constitution and reflected in constitutional practice. The very idea that that the national constitution is decisive for generating the doctrines that structure the relationship between national and international law is dualist. This is true, even where the constitution determines that international law is part of the law of the land. How the constitution manages the interface between national and international law varies across constitutional jurisdictions. But notwithstanding significant variance across constitutional democracies, the basic structure of post-Second World War constitutional doctrines tends to be similar. National constitutions typically assign a status to international law within the domestic hierarchy of norms giving rise to specific conflict rules. Typically international law is assigned a lower status than the constitution but is at least on par with ordinary statutes. This means that a statute enacted prior to the entry into force of a duly ratified treaty, for example, is trumped by the treaty, but the treaty in turn is trumped by a provision of constitutional law. Furthermore these doctrines tend to assign a status to international law that depends on its source. Treaties are assigned one rule, customary international law is assigned another. Furthermore there are typically judicially developed rules determining whether a treaty is self-executing or directly effective and can thus be judicially enforced without further implementing legislation. There are also rules of construction typically requiring domestic statutes to be interpreted so as to avoid a conflict with international law if possible.

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  United Steelworkers of America v. Brian Weber

  Deborah C. Malamud

  United Steelworkers of America v. Brian Weber is the case in which the Supreme Court established the legality of voluntary race-based affirmative action in employment under Title VII of the Civil Rights Act of 1964. The case turned on statutory interpretation, and the battle between Justice Brennan and Justice Rehnquist is such a classic in that field that the leading casebook on Legislation uses it to great effect as its opening case study. Yet Weber has begun to disappear from Employment Discrimination casebooks. Johnson v. Santa Clara County Transportation Agency, which reaffirmed Weber and extended its rationale to sex-based affirmative action, is sometimes presented by casebook editors as the “lead” case on the topic. But only by telling the story of Weber can we see the historical context out of which voluntary affirmative action emerged and came before the Court. One part of the story, told well in existing sources, is that affirmative action was the response of employers to the threat of lawsuits and of loss of lucrative federal contracts for having too-white workforces. Three Federal anti-discrimination agencies—the Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), and the Office of Federal Contract Compliance (OFCC) (housed in the Department of Labor, DOL)—had their hand in the field of racial discrimination in employment. So did the National Association for the Advancement of Colored People (NAACP) and its independent litigation offshoot, the NAACP Legal Defense Fund (LDF), the major forces behind many landmark private Title VII cases. All came, for reasons more pragmatic than political, to pay attention to the numerical bottom line when setting their prosecutorial and investigative priorities. Faced with presumptive guilt-by-the-numbers, employers became convinced that hiring-by-the-numbers was the best policy. Employers adopted “voluntary” affirmative action policies to serve their own self-interest, at the expense of the interest of their white workers, who had no voice in the process. As a one-paragraph account, I have little objection to this version of the story. But it misses one important player. Government, public interest groups, employers, black workers, white workers are all there. But what about labor unions? Much of early Title VII enforcement aimed at heavily-unionized sectors of the economy. Voluntary affirmative action in the unionized sector could only be achieved through the collective bargaining process, either with union agreement or in the face of union strike threats. Many important traditional craft unions continued to discriminate for years after Title VII was enacted, and became the test-cases for government-ordered affirmative action in the 1980s. In contrast, the industrial unions, at the national level at least, supported Title VII and pioneered the design and implementation of voluntary affirmative action programs. They did so despite the fact that their majority-white memberships were likely to object, and despite the fact that they were far less likely than employers to become the targets of direct attack in public enforcement actions. Indeed, the OFCC had no power whatsoever against unions. Unions could effectively block employer compliance by blocking the provisions the OFFC wanted, and the OFCC could do nothing about it. The craft unions learned this early on, and it was a lesson the industrial unions would surely learn in time. So why did unions agree to affirmative action policies that were sure to anger their majority-white memberships? In this chapter, I will tell the story of Weber from the standpoint of the case's union defendant, the United Steelworkers of America International Union (USWA or “the union”), then the largest affiliate of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). We will see that the USWA introduced voluntary affirmative action to the steel industry, and carried it with them to aluminum (which is where Weber takes place). The USWA's policies were in part driven by the union's own aspiration (often unachieved in practice) to be on the progressive side of civil rights disputes. In large part, however, the union was driven to voluntary affirmative action as a defense against one litigation strategy it particularly feared-one that both the EEOC and the NAACP embraced early on in their Title VII efforts. That litigation strategy was the attack, against both union and employer defendants, on the continued use of seniority systems that pre-dated Title VII, were not adopted for discriminatory reasons, but had the effect of perpetuating pre-Title VII race discrimination committed by the employer in hiring and initial job assignment. Such attacks, if successful, created the strong possibility that trial courts and civil rights lawyers with no labor-management experience would take on (and botch) the job of re-designing complex seniority systems, and would impose quotas as injunctive relief. For USWA, a far better solution was for sophisticated unions and employers to do the work themselves through collective bargaining. From the perspective of the USWA, then, the story of voluntary affirmative action was largely a story about seniority-even though the Weber case itself was not. Seen from this standpoint, the story of Weber is an odd story indeed. As we shall see, two years before the Supreme Court decided in Weber to uphold the use of voluntary race-based affirmative action under Title VII, it had already, in its 1977 decision in United States v. Teamsters, overruled the adverse seniority cases that were the occasion for the USWA's use of affirmative action in its collective bargaining agreements.

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  The Wrongs of Unequal Treatment

  Sophia Moreau

  Over the past twenty years, analytic philosophers in the United States and England have devoted extensive thought to the different reasons we have for valuing equality- and, relatedly, to the different ways in which we can conceptualize the wrong or wrongs done to individuals when the state does not treat them as equals. However, neither Canadian legal academics nor Canadian courts have made extensive use of this literature in interpreting the equality provisions of the Canadian Charter of Rights and Freedoms. There are a number of good reasons why one might expect this philosophical literature to remain somewhat remote from Canadian legal debates. One reason is that philosophers have tended to approach the question of what kind of equality matters as an inquiry into which system of general principles for the distribution of resources should guide legislatures in the design of particular policies. Since a court cannot unproblematically assume that it is either institutionally competent to make judgments about the most appropriate general distributive principles, or possessed of the institutional mandate to do so, these philosophical discussions can seem of little relevance to a court's task of interpreting constitutionalized equality rights. Furthermore, philosophers have tended to focus on the distribution of goods that can be privately owned, such as income and real property. Although this is usually done only for ease of illustration, the result has been that their work often lacks explicit discussion of claims for the equal availability of goods that are not privately appropriable—for instance, access to public spaces that have been designed in such a way that everyone can move easily through them, or the freedom to present one's relationship in public as involving the most extensive kind of commitment that our society recognizes. Yet it is very often these sorts of goods that claimants in equality rights cases have been denied. Finally, and most importantly, philosophical discussions have tended to assume—either implicitly or, as in the case of Ronald Dworkin, quite explicitly—that questions concerning the just distribution of resources can be pursued without broaching questions about the just distribution of political and social power. Consequently, prior to the work of Elizabeth Anderson, and more recently, Samuel Scheffler, most philosophers did not concern themselves directly with inequalities in the distribution of political or social power, or with how to conceptualize the wrong that is done by institutional structures and policies that stigmatize individuals, marginalize them, or perpetuate their domination by others. The latter question is of course of particular relevance to Canadian equality jurisprudence, given that the Supreme Court of Canada has construed the protection offered by section 15 of the Charter as limited to those forms of unequal treatment that involve “discrimination.” Indeed, for this reason, it might be thought that any more general discussion of inequality could have only limited relevance, if any, to Canadian equality jurisprudence. However, if we are to define discrimination broadly enough to include not only intentional discrimination but also what has come to be called “adverse effects discrimination”—that is, discrimination that merits the name not because some have deliberately been denied a benefit out of malice or prejudice but because, under the circumstances, even the unintended effect of depriving these people of this particular benefit is unfair to them—then it seems we must understand discrimination, quite generally, as “depriving some of a benefit available to others, in circumstances where this treatment is unfair to them.” But, of course, this is just the most general characterization that philosophers defending some form of equality would give of the kind of unequal treatment that they hold to be objectionable. No plausible theory of equality maintains that what is objectionable about unequal treatment is the mere fact that some individuals end up with more or less than others. Rather, such theories hold that unequal treatment is objectionable when, and to the extent that, this treatment is unfair. Hence, the real question for philosophers writing on equality has been, when unequal treatment is unfair, what makes it so? Or, as we might otherwise put it, what is the nature of the wrong or wrongs done to individuals when they are unfairly treated unequally? This is precisely the question that courts and legal academics face, in interpreting the equality rights contained in section. As I hope this paper will show, the philosophical literature on equality can help us answer this question, in spite of the differences in focus and context noted above. We can learn, in particular, from some of the conceptual distinctions that have been drawn in the philosophical literature between various ways of understanding the wrong that is done to individuals when the state unfairly treats them unequally. I shall begin by separating out one abstract conception of this wrong and four more specific, substantive conceptions of the wrong, and I shall suggest that all of them can be found in Canadian equality jurisprudence. As my discussion will suggest, these different conceptions of the wrong are not reducible to a single, unifying explanation; that is, there is no one factor that all of them can be understood as invoking as the source of the wrong. Assuming that all of them are plausible conceptions of the wrong, it follows that there is no single type of wrong present in all cases of unfairly unequal treatment. There is, rather, a variety of wrongs, each irreducible to the others. But a given case may involve more than one of these wrongs. With this theoretical basis in place, I shall turn to consideration of the test laid down by the Supreme Court in Law v. Canada for violations of section 15(1).10 I shall argue that, at least in its current form, this test fails to separate out these different conceptions of the wrong, and that this has rendered it both conceptually problematic and less able to recognize as discriminatory certain instances in which the claimant has indeed suffered one or more of the wrongs I have discussed. In conclusion, I shall explore several ways in which Law nevertheless leaves us room to maneuver in seeking a new approach to section 15, one that would acknowledge the distinctness of the various ways in which unequal treatment can wrong individuals, and would therefore place courts in a better position both to identify these wrongs and to decide whether section 15 is indeed rightly construed as offering protection against all of them.

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  Ethics

  Thomas Nagel

  Ethics is the branch of philosophy that tries to understand a familiar type of evaluation: the moral evaluation of people’s character traits, their conduct, and their institutions. We speak of good and bad people, the morally right or wrong thing to do, just or unjust regimes or laws, how things ought and ought not to be, and how we should live. One part of the subject, metaethics, is concerned with what such judgments mean, what, if anything, they are about, whether they can be true or false, and if so what makes them true or false. The other part of the subject, normative ethics, is concerned with the content of those judgments: What features make an action right or wrong; what is a good life; and what are the characteristics of a just society? This entry will concentrate on normative ethics, though some comments on metaethics will be unavoidable. And within normative ethics it will concentrate on general principles and foundations (what is usually called moral theory) rather than on applied ethics, the discussion of specific cases. Moral theory seeks a systematic understanding of the full range of moral convictions and disagreements and of their possible grounds.

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  A Tale of Two Cities: Administering the Holocaust Settlements in Brooklyn and Berlin

  Burt Neuborne

  Holocaust-era litigation in American courts against Swiss banks and German industry has played a major role in assembling approximately $6.5 billion for distribution to hundreds of thousands of Holocaust victims who fell between the cracks of prior reparations programs. The Swiss bank cases were settled for $1.25 billion on January 26, 1999. The German industry cases were settled on July 17, 2000, through the creation of a DM 10 billion ($5.25 billion) German Foundation, “Remembrance, Responsibility, and the Future,” which acts as a conduit for payment to designated categories of Holocaust victims. In addition, slightly more than $1 billion has been assembled in connection with settlements involving Austrian and French Holocaust-era claims. An additional $500 million has been assembled to pay Holocaust-era insurance claims through the efforts of the International Commission on Holocaust-Era Insurance Claims (ICHEIC), a collaboration between the European insurance industry and state insurance regulators. ICHEIC was established without the participation of lawyers or courts. All told, approximately $8 billion has been assembled for payment to Holocaust victims or their heirs. And if litigation in connection with recovery of looted art is included, at least another $1 billion must be added to the total. I serve as court designated lead settlement counsel in the Swiss bank settlement, which is being administered in Brooklyn federal court as a classic Rule Twenty-Three class action, and as one of two U.S. appointees to the 27-person Board of Trustees of the German Foundation, which is being administered in Berlin under the supervision of the trustees and the German Ministries of Finance and Foreign Affairs. Not surprisingly, the bulk of the commentary on this remarkable spate of litigation has focused on the merits of the claims, the personalities of the lawyers, and the tactics of the diplomats, Jewish community leaders, and litigators who made the Holocaust-era settlements possible. Little attention has been paid to the postsettlement activities of the two funds in distributing settlement monies to actual victims. This essay serves as an interim report as of January 1, 2005, on the progress of both funds. While I draw on the official data released by both funds, the assessment is, of course, a personal one.

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  Money and American Democracy

  Burt Neuborne

  In Law and Class in America, a group of leading legal scholars reflect on the state of the law from the end of the Cold War to the present, grappling with a central question posed to them by Paul D. Carrington and Trina Jones: have recent legal reforms exacerbated class differences in America? In a substantive introduction, Carrington and Jones assert that legal changes from the late-20th century onward have been increasingly elitist and unconcerned with the lives of poor people having little access to the legal system. Contributors use this position as a springboard to review developments in their own particular fields and to assess whether or not legal decisions and processes have contributed to a widening gap between privileged and unprivileged people in this country. From antitrust and bankruptcy to tax and election law, the essays in this unique volume invite readers to reflect thoughtfully on socio-economic justice in the new century, and suggest that a lack of progressive reform in all areas of law may herald a form of undiagnosed class dominance reminiscent of America's Gilded Age.

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  Japan-Measures Affecting the Importation of Apples (AB-2003-4): One Bad Apple? (DS245/AB/R): A Comment

  Damien J. Neven and Joseph H. H. Weiler

  This chapter reviews the decision by the Appellate Body (AB) regarding measures affecting the importation of apples in Japan. Section 2 of the chapter presents some background facts. Section 3 considers the Sanitary and Phytosanitary (SPS) agreement and emphasizes the fact that it imposes a discipline on risk-reducing measures even in the absence of discrimination or protectionism. Section 4 discusses how the evaluation of risk-reducing measures can be undertaken in the context of the SPS agreement. Our discussion focuses on two issues: the scope of the mandate given to the adjudicators and the standard of review that they should apply. We emphasize the difficulty of the task faced by the adjudicators, namely to distinguish between determining the level of risk that a country will find optimal to support (which cannot be challenged) and determining whether risk-reducing measures are necessary to achieve the chosen level of risk. We further observe that the common methodology used by Panels, namely to evaluate the existence of risk in the absence of risk-reducing measures, has limited applicability. We also discuss how this approach can be abused, leading the adjudicators to slip from an evaluation of whether the measures are necessary to achieve a given level of risk to an implicit challenge of the level of risk itself (which should remain the preserve of the Members). Regarding the standard of review, we argue that a lower standard should be applied to measures that do not threaten fundamental principles like nondiscrimination. Section 5 considers the approach and the findings of the Panel and the AB in light of this discussion. Section 6 discusses the consistency requirement imposed by the SPS agreement regarding risk-reducing measures in different circumstances and argues that it can be a very effective tool to prevent abusive standards, without compromising the autonomy of the States in setting the optimal level of risk that they wish to bear. This section also discusses some of the implications of applying different standards of review to cases that involve discrimination or protectionism and those that do not. Section 7 briefly considers how the Panel and the AB handled methods of risk assessment, and highlights the fact that Japan was held to a very high standard of review. Section 8 discusses the approach of the Panel and the AB toward the precaution principle. We consider the precautionary principle in the context of the SPS agreement and argue that the agreement fits naturally with the distinction between risk and ambiguity and in this perspective allows for one type of rationale behind the precautionary principle (while seemingly excluding others). We also observe that there is at least one issue in which scientific evidence was ambiguous in the case. Accordingly, the Panel’s and the AB’s unwillingness to apply the precautionary principle in this case can be questioned.

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  Political Competition and the Modern VRA

  Richard H. Pildes

  Political equality is often viewed as one of the central political and constitutional values, or even the central value itself, that explains and justifies democratic self-government. Theorists seek to deduce, from the value of political equality, numerous and varied implications for the way democratic processes should be structured. Much of the constitutional law concerning democratic institutions, such as the malapportionment decisions, are justified in the name of judicially enforcing constitutional commitments to political equality. Some of the most important statutes Congress has enacted, such as the Voting Rights Act (VRA), aim to secure values of political equality in the electoral process and in the design of representative institutions. Yet at the same time, application of overly abstract moral or legal ideals of equality to political processes, or the institutional entrenchment of specific and static understandings of political equality at particular moments in time, can interfere with the complex, dynamic processes through which material power is organized effectively in democratic politics. Constitutional, legislative, and moral understandings of political equality must be understood—as they often are not—in light of the way power is organized and exercised in the actual processes of democratic political competition.

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  The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote

  Richard H. Pildes

  Congress is now considering whether to renew the Voting Rights Act. This essay suggests that Congress will seek to avoid any of the difficult issues inevitably presented concerning how federal law should regulate voting rights in today's context. Though critical issues concerning American democracy are at stake, and the renewal process is the moment at which the nation should focus on voting rights, there is no constituency, inside Congress or outside, to raise the serious policy issues that should be addressed. Instead, Congress appears to prefer to renew the relevant provisions largely in their current form, as quietly as possible, while avoiding any hard questions. Doing so not only abdicates policymaking responsibility, it increases the likelihood that the Supreme Court will later find the renewed Act to be unconstitutional. This essay raises the questions that Congress should address. There are two distinct models for national legislation to protect voting rights. The model of the VRA selectively targets certain areas of the country (9 states, several counties and towns), for a unique form of unusually intensive federal oversight. In essence, these areas are put into a form of federal receivership regarding any changes they might make in anything related to voting, ranging from the design of their congressional districts to the hours these areas keep their polls open. Congress might tinker at the margins with this model, but the more fundamental question is whether this selective-targeting approach continues to be the best way to protect voting rights, including minority voting rights, in today's context. An alternative model for doing so would directly protect the right to vote as such, through uniform, national legislation, rather than singling out particular areas of the country for unique protections. This alternative is reflected in laws that post-date the Voting Rights Act, such as the Help America Vote Act and the National Motor Voter Registration Act. This essay suggests that this alternative model - national, uniform laws to protect the right to vote as such—is better suited to the problems of voting rights today than the model of Section 5 of the Voting Rights Act, which was well designed for the era in which it was created but is less well suited to the problems of today. Yet Congress will likely simply renew the Act, perhaps with modifications at the margins, but essentially in its present form. Difficult questions will be hushed over. The voting rights community will proclaim victory, but this victory will be largely symbolic—the preservation of a past that is increasingly irrelevant and tangential to the main issues. Possibly, that is the only sort of victory available. But the policymaking process will generate no serious discussion of whether the philosophy of Section 5 of the VRA continues to make sense today, with no adjustment at all from 1982, when Congress last considered the Act—or, even more importantly, of what philosophy and approach to voting rights might now be more effective. Keywords: Voting Rights, Civil Rights, Race and Politics, Minority Voting Rights, Representation, Democracy

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  An Empirical Perspective on Legal Process: Should Europe Introduce Private Antitrust Enforcement?

  Daniel L. Rubinfeld

  Part of the conference: First International Scientific Conference on Law and Economics at the University of St. Gallen: October 27-28, 2005, St. Gallen, Switzerland. We have an interesting conference ahead of us. What is Law and Economics today? What are the current research topics in Law and Economics? What are the practical implications of Law and Economics research? Eminent speakers will share their views with us and we will have ample opportunity to hold discussions with them.

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  Is the Basic Structure Basic?

  Samuel Scheffler

  This essay focuses on Cohen’s recent arguments for extending the scope of justice beyond Rawls’s formulation. It argues for the merits of Rawls’s argument that the primary subject of justice should be restricted to social institutions. It contends that whether or not one agrees with Rawls’s view of what should count as the subject of justice, Cohen is wrong to understand the upshot of this to be either a paltry measure of redistribution or the accommodation of the untrammelled pursuit of selfish interests.

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  Miranda v. Arizona: A Modest But Important Legacy

  Stephen J. Schulhofer

  The story of Miranda is in large part a doctrinal story centered on the evolution and content of Fourteenth Amendment "due process” and the Fifth Amendment's self-incrimination clause. Miranda is also, of course, the story of interrogation as an important tool of criminal· investigation. More generally, the Miranda story is in microcosm the story of the twentieth-century development of policing as a profession. But even these large topics are among the narrower facets of the complete Miranda. Miranda epitomizes the importance and difficulty of outside efforts to regulate law-enforcement behavior. Miranda is the poster child for the Supreme Court's fluctuating commitment to safeguarding the fairness of the criminal justice system as a whole. More broadly yet, it is no exaggeration to say that, more than any other word or phrase in our lexicon, “Miranda” stands for judicial activism, for the volatile dynamics of crime-control politics, and for the problematic legitimacy and effectiveness of Supreme Court attempts to assure justice in American social arrangements at any or all levels. The approach of Miranda's fortieth birthday signals more than an interesting anniversary. Today only our most senior judges, lawyers and detectives know at first hand the world before Miranda. Soon none of that generation will remain professionally active. Their world, legally and operationally, was very different from the criminal justice world we inhabit today.

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  Caps and the Construction of Damages in Medical Malpractice Cases

  Catherine M. Sharkey

  The perceived need for tort reform, and particularly medical malpractice damages caps, is among the most salient political issues of our time. President Bush himself has advocated a uniform federal cap on noneconomic damages in medical malpractice cases as the centerpiece of a tort reform agenda aimed at reining in a “judicial system [that] is out of control.” The 2004 election, moreover, spawned a resurgence of state legislative reform efforts. This chapter explores the politically divisive issue of damages caps and takes a closer look at the assumptions that inhere in the arguments for them and against them. I conclude that the most prevalent form of damages caps, those that cap only the noneconomic portion of medical malpractice awards, are hardly the surefire limits on damages awards that their advocates hope—and their detractors fear—them to be.

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  Global Accounting Dimensions of Corporate Governance

  Stanley Siegel

  No sooner than the Enron scandal (and other major US corporate failures) unfolded that it became apparent the sundry issues of corporate governance that were being brought into question and deliberation were not simply issues peculiar to the US corporate governance context (which are covered in detail in this volume by leading US experts), but were of major concern also throughout Western Europe (aspects which are governed by UK, Italian, French, and Scandinavian experts and which touch upon European scandals such as Parmalat). In fact, the corporate governance issues of the Enron debacle are of a broader 'global concern,' where the experiences of developing, emerging, and transitioning economies present their own special perspectives and lessons to be learned (here experts from Russia and East Asia make significant contributions). In addition, the increasing interconnection of law and accounting rears its head as being of core importance-another topic that is discussed in detail throughout this volume. Further, special types of corporations (eg regulated financial institutions) and transactions (eg mergers and acquisitions) generate their own additional issues: these are also covered within this book. This publication, comprised of 21 chapters prepared by leading legal experts drawn worldwide, contributes constructively to the continuing comparative and international discussions and debates concerning the appropriate subject, policies and rules for appropriate corporate governance system(s)-as viewed from a multifaceted and multilayered context of true global dimensions. This volume represents the collaborative efforts of the British Institute of International and Comparative Law, the Centre for Commercial Law Studies (Queen Mary, London), the Stockholm Center for Commercial Law (Stockholm University Law Faculty), and the SMU Dedman School of Law and its Institute of International Banking and Finance; and comes as the latest addition to the Studies Series in International Financial, Economic and Technology Law, published in collaboration with the SMU International Law Review Association and the SMU-London Forum Intitiative.

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  Social Norms, Self Control, and Privacy in the Online World

  Katherine J. Strandburg

  This chapter explores ways in which human limitations of rationality and susceptibility to temptation might affect the flow of personal information in the online environment. It relies on the concept of "willpower norms" to understand how the online environment might undermine the effectiveness of social norms that may have developed to regulate the flow of personal information in the offline world. Finally, the chapter discusses whether legal regulation of information privacy is an appropriate response to this issue and how such regulation should be formulated in light of tensions between concerns about self-control and paternalism.

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  Cosmopolitan Norms

  Jeremy Waldron

  There is a massive and so far quite mysterious difference between thinking of cosmopolitan norms as law and thinking in legal terms about the norms of an ordinary municipal system. Until one has something more to say about the former, the idea of a cosmopolitan order remains unanalyzed. This book's notion of “democratic iteration” contributes a substantial amount of what is needed here, to resolve this obscurity. However, this chapter pursues that idea in a slightly different way from the way in which the book pursues it. The outset of the author's lectures indicates that she has a particular interest in norms defining “crimes against humanity” and by extension human rights norms and what she calls “cosmopolitan norms of justice.” What distinguishes these from the more familiar rules of international law is that cosmopolitan norms offer rights and protections to, and impose obligations on, human individuals as such, not just states.

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  Democracy and Conflict

  Jeremy Waldron

  The events of September 11 and the subsequent war on terrorism have provoked widespread discussion about the possibility of democracy in the Islamic world. Such topics as the meaning of jihad, the role of clerics as authoritative interpreters, and the place of human rights and toleration in Islam have become subjects of urgent public debate around the world. With few exceptions, however, this debate has proceeded in isolation from the vibrant traditions of argument within Islamic theology, philosophy, and law. Islam and the Challenge of Democracy aims to correct this deficiency. The book engages the reader in a rich discourse on the challenges of democracy in contemporary Islam. The collection begins with a lead essay by Khaled Abou El Fadl, who argues that democracy, especially a constitutional democracy that protects basic individual rights, is the form of government best suited to promoting a set of social and political values central to Islam. Because Islam is about submission to God and about each individual's responsibility to serve as His agent on Earth, Abou El Fadl argues, there is no place for the subjugation to human authority demanded by authoritarian regimes. The lead essay is followed by eleven others from internationally respected specialists in democracy and religion. They address, challenge, and engage Abou El Fadl's work. The contributors include John Esposito, Muhammad Fadel, Noah Feldman, Nader Hashemi, Bernard Haykel, Muqtedar Khan, Saba Mahmood, David Novak, William Quandt, Kevin Reinhart, and Jeremy Waldron.

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  Did Dworkin Ever Answer the Crits?

  Jeremy Waldron

  This chapter highlights a dilemma for Dworkin arising from tension between his principle of integrity and his constructivism about legal background. A certain critique from the Critical Legal Studies (CLS) movement pushes Dworkin to be a constructivist regarding the background elements of a legal system. Dworkin must argue that the legal background of a legal system is constructively coherent: it is capable of being made coherent at the hands of a sufficiently resourceful interpreter. Dworkin also motivates a conception of law as integrity, which he invokes to justify the claim that making coherent sense of the existing legal materials, foreground and background, is something we are morally required to do. This chapter explores the following dilemma: If Dworkin hangs on to the integrity position, he makes it harder to respond to the scepticism of CLS via his constructivist argument. But if he weakens the integrity requirement, then he leaves himself defenceless against pragmatism about legal background.

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  Kant's Theory of the State

  Jeremy Waldron

  Immanuel Kant’s theory of what we owe to the state presents an important alternative to traditional consent-based, utilitarian, and fairness-based accounts. On the consent-based approach, we are obligated to the state because we have consented to its authority; its authority is supposed to be based on a choice we made between two morally permissible alternatives (give one’s consent to, or withhold one’s consent from state authority). On Kant’s theory, however, withholding one’s consent is impermissible. According to the utilitarian approach, the state’s claim on us is based on the benefits it provides for others; and on the fairness approach, its claim on us is based on the moral unacceptability of our accepting these benefits without contributing our fair share to their provision. On Kant’s theory, however, the state’s claim on us has to do not with any benefits that we receive, but with a change in the moral quality—indeed, the moral legitimacy—of certain actions of ours when they are performed under the auspices of a framework of positive law. His, therefore, is a challenging and unconventional theory of what we owe to the state, and it requires careful explication. The first step in such an explication is to figure out exactly what the state is, according to Kant, and to see whether his conception of the state differs from the conception that is used in political philosophy and social theory generally.

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  Mr. Morgan's Yacht

  Jeremy Waldron

  This essay takes up Cohen’s inquiry into freedom and property. It celebrates his evocative example for its illustration of how property restricts the freedom of the majority for the sake of the freedom of the propertied. However, although Cohen’s insistence on a view of liberty that is not moralized is salutary in this debate, there is also some loss. There remains some moral appeal to the idea of possession even if freedom, suitably demoralized, is not at issue. Moreover, there is some risk that Cohen’s ‘denuded’ conception of liberty will fail to capture the significance of liberty and why we should care about it.

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  Principles of Legislation

  Jeremy Waldron

  A legislature is a place for making law, and because law is a serious matter affecting the freedom and interests of all the members of the community, legislating is an activity we ought to take seriously. It is like marriage in the Book of Common Prayer—not to be enterprised nor taken in hand carelessly, lightly or wantonly, but discreetly, advisedly and soberly, duly considering the purposes for which legislatures have been instituted and considering also the harm and injustice that poorly conceived or hastily enacted legislation may do. In this chapter, I want to consider some principles that I believe ought to govern the activities that take place in and around legislative institutions. My topic—“Principles of Legislation”—is a common one. But the sense in which I am using it may be unfamiliar. I want to distinguish the principles of legislation that I will be talking about from two other sorts of legislative principles—the principles of a utilitarian like Jeremy Bentham and the principles of a theorist of justice like John Rawls.

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  Secularism and the Limits of Community

  Jeremy Waldron

  In Globalization Challenged, George Rupp outlines the steps necessary to engage the contemporary conflict between traditional religious belief and Western secularism. Though he acknowledges the threat of “resurgent fundamentalism,” Rupp also criticizes secularists who fail to allow for the role of religion and its ideological equivalents to influence public policy. Rupp reinforces his argument with dramatic accounts of recent events in Afghanistan, the Democratic Republic of Congo, and Sudan. He focuses on the ways local conflicts fuel instability worldwide, even as the processes of globalization at times accentuate those conflicts. Essential reading for understanding the roots of today's geopolitical tensions, Globalization Challenged asks that we shed our complacency, recognize the legitimate role of conviction, and affirm a sense of community that extends from the very particular to the more and more inclusive. In Globalization Challenged, George Rupp, president of the International Rescue Committee, outlines the steps necessary to engage the contemporary conflict between traditional religious belief and Western secularism. According to Rupp, the key objective is to build a community that is inclusive without denying the validity of particular commitments. While he acknowledges the threat of “resurgent fundamentalism,” Rupp also criticizes secularists who fail to recognize or acknowledge the role of religion and its ideological equivalents in influencing public policy. All views, he asserts, are subject to comparative appraisal. The challenge is to develop ways to evaluate different approaches responsibly, leading to a greater understanding of one's own convictions as well as the positions of others. Rupp reinforces his critical and theoretical analysis with dramatic accounts of recent events in Afghanistan, the Democratic Republic of Congo, and Sudan—places where the International Rescue Committee operates. He then addresses the role of globalization in fueling instability worldwide. Inadequately regulated privatization has compromised health care, education, and social programs in many countries, whereas an inclusive community would encourage a more equitable distribution of resources. Essays by Jagdish Bhagwati, Jeremy Waldron, and Wayne Proudfoot expand Rupp's arguments, and in a final chapter Rupp responds to the issues they raise. Essential reading for anyone who hopes to understand the roots of today's geopolitical tensions, Globalization Challenged asks that we shed our complacency, recognize the legitimate role of conviction, and take actions to shape a more just and inclusive society.

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  The Essential (and would-be Essential) Jurisprudence of the European Court of Justice: Lights and Shadows too

  Joseph H. H. Weiler

  The future of the European judicial system and the constitutional role of the European courts were the topics of the 6th Colloquium of the European Constitutional Law Network (ECLN), which took place in Berlin in November 2005. It was jointly organized by the ECLN and the International Association of Constitutional Law (IACL). This book reflects the topics of the colloquium where judges from the European Courts and the highest national courts, and experts on European and Constitutional Law from all over the world exchanged experiences and developed concepts for future EU judicial architecture. Subjects like the composition of the courts, election procedures for the judges, and their relationship to the ordinary judiciary are compared, and the role of the ECJ in the European Judicial System is discussed.