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  INS v. St. Cyr: The Campaign to Preserve Court Review and Stop Retroactive Application of Deportation Laws

  Nancy Morawetz

  On April 24, 1996, the anniversary of the Oklahoma City bombing, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The bill was prompted by early hunches that noncitizen terrorists were responsible for the bombing of the federal building in Oklahoma City the previous year. But the discovery that an American was responsible for the bombing did nothing to stop the bill’s new rules for noncitizens who could be labeled as terrorists. Nor had this discovery prevented Congress from adopting provisions that had nothing to do with terrorism or the death penalty. Section 440 of AEDPA—entitled “Criminal Alien Removal”—dramatically altered the rights of lawful permanent residents (LPRs) with criminal convictions. Instead of having a right to a hearing under section 212(c) of the Immigration and Nationality Act on the equities of deportation, section 440(d) subjected these long time residents to mandatory deportation. Furthermore, section 440(a) appeared to cut off judicial oversight of how the law was applied. LPRs faced mandatory deportation without review by any court. Most of the people affected by this law had no idea that it had passed and that it threatened their families. Enrico St. Cyr, whose case would later reach the Supreme Court, was beginning a five year sentence for a drug offense. Junior Earl Pottinger was looking forward to being released from jail after serving a few months for a drug offense. Many others had long ago finished serving any criminal sentence. Jesus Collado was running his restaurant in New York City, twenty two years after having served a probationary sentence for having a sexual relationship as a teenager with his underage girlfriend. Danny Kozuba was working installing kitchens, and awaiting word on the government’s appeal to the Board of Immigration Appeals (BIA) of a grant of relief from deportation 280 in a case arising out of convictions for drug possession. All were LPRs who either had long forgotten their brush with the criminal law or assumed that any deportation consequences would be measured against their individual equities. Over the next five years the lives of these people and thousands of others would be dramatically affected by AEDPA and similar provisions enacted five months later in the Illegal Immigration Reform and Immigrant Responsibility Act of Immigrant of 1996 (IIRIRA). INS v. St. Cyr is the story of their ordeal and that of thousands of other LPRs. It is also the story of a remarkable litigation campaign to preserve judicial review and prevent the new laws from being applied retroactively. By 2001, when the Supreme Court issued its decision in St. Cyr finding jurisdiction and ruling against retroactive application of new bars to relief from deportation, thousands had been deported and would not reap the benefit of the decision. But for those who managed to prevent their deportation, St. Cyr provided a chance to pick up lives that had been ravaged by five years of litigation and uncertainty. St. Cyr, like many immigration decisions, did not rule squarely on constitutional grounds. Instead the Court based both its jurisdictional holding and its ruling on the merits on “clear statement” rules. Thus, St. Cyr presents a case study of the role that the litigation of statutory claims (against a strong backdrop of constitutional avoidance), can play in achieving change. But it also shows the limits of such a campaign, in the absence of class-action procedures to stop deportations from continuing while advocates lay the groundwork for Supreme Court review. In the end, St Cyr is both a remarkable story of the potential of a well-orchestrated litigation campaign and a sober reminder of how difficult it is to protect immigrants from harsh and illegal deportation laws and legislation that curbs access to the courts.

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  The Historical Foundations of the American Judiciary

  William E. Nelson

  The federal Constitution of 1787 and state constitutions written both before and after its adoption did not create the American judicial system that exists today. The judiciary’s foundations lie elsewhere—in the common law of England stretching as far back as the Middle Ages and in the societal needs that arose when the polity created by independence and the new federal and state constitutions superseded older eighteenth-century forms of governance. Even on subjects other than the judiciary, most of today’s constitutional law and practice stems not from constitutional texts themselves but from pre-constitutional precedents or post-constitutional developments. A few familiar examples from federal constitutional law will illustrate. The Constitution’s prohibition on bills of attainder and its adoption of impeachment as the sole device for congressional removal of officials can only be understood against the background of earlier English history. Another example is the scope of the Commerce Clause, which was understood to give Congress much narrower authority to regulate economic affairs in 1787-1788 than it does today. Members of the first Congress and of George Washington’s administration disagreed, for example, over whether Congress had the power to establish a national bank or even to build lighthouses to aid seaborne traffic. In contrast, even after the recent Supreme Court cases that have cut back on the breadth of the commerce power, no one doubts the authority of Congress to build an interstate highway system or of the Federal Reserve Board to regulate even purely intrastate banking transactions. In similar fashion, the Constitution of 1787 says nothing about presidential term limits. Nonetheless, when President George Washington refused to run for a third term, he established an important constitutional practice. For nearly a century and a half, no president sought a third term, and when President Franklin D. Roosevelt successfully did so in 1940, many viewed his reelection as a violation of the Constitution. They then proceeded to write their understanding of constitutional law into text with the adoption of the Twenty-second Amendment. Racial segregation offers a final illustration. Few scholars believe that the men who drafted and ratified the Fourteenth Amendment had definitively resolved the issue of whether their language would outlaw de jure segregation. Nor does anyone seriously deny that Brown v. Board of Education (1954) created novel constitutional law when it ruled that the Fourteenth Amendment outlaws separate but equal facilities mandated by state law. Similarly, the Constitution of 1787 speaks only in minimal fashion of the national judiciary. Article III, which is the portion of the Constitution dealing with courts, itself is very sparse, containing less than five hundred words. Section 1 merely creates the Supreme Court, authorized Congress to create lower courts, and gives federal judges life tenure. Section 2 provides for jury trial in criminal cases and specifies the jurisdiction of federal courts: in essence, it authorizes federal courts to hear cases arising under federal law and cases involving citizens from more than one state and remits most other cases to state courts. Article III’s final section defines and limits the applicability of the crime of treason. The pressures under which the framers of the Constitution were operating explain the brevity of Article III. It is important to realize that after the framers had drafted Articles I and II, dealing with the legislative and executive branches, they wished to finish their job quickly and get their document ratified. They were tired, they wanted to get home before winter, and above all, they needed to let the public know what they had been doing. They had readily agreed about some matters, such as the necessity of a Supreme Court and of granting life tenure to judges, and they incorporated their agreements into Article III. But other issues, especially whether lower federal courts should exist and how extensive they should be, were controversial issues for resolution by Congress and the courts in the future. Thus, it is necessary to understand the constitutional foundations of the federal courts as a product of development over time. The original Constitution for the most part did not create foundational law, but only the most basic of institutions. Thereafter, Congress and the courts had to work out the law under which the federal judiciary continues to function today. State constitutions were no different. Provisions dealing with state judiciaries are more terse than provisions dealing with the other branches of state government. Moreover, they tend to dal mainly with matters of housekeeping and to ignore larger issues about the role of courts in the polity. None of the original thirteen state constitutions, for example, made any mention of judicial review—the power of state courts to hold acts of their state legislatures unconstitutional. Mention of judicial review remains rare even today. Of course, like Article III of the federal Constitution, state constitutional provisions on the judiciary are not entirely irrelevant. Some of the housekeeping rules they establish are important, such as the rule in most states that judges hold office for fixed terms or until a stated retirement age, whereas federal judges hold office for life, unless they resign, retire, or are impeached. But the key point bears repetition: federal and state constitutions do not specify the role of the judiciary in the overall polity, do not explicate precisely what it is that courts and judges do, and do not untangle the relationship between the countermajoritarian judicial branch of government and the more democratic executive and legislative branches. To understand these matters it is necessary to turn to history—especially the history of the eighteenth century and the early decades of the nineteenth.

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  Harisiades v. Shaughnessy: A Case Study in the Vulnerability of Resident Aliens

  Burt Neuborne

  We owe the ancient Greeks a great debt for inventing the polis-a geographically-defined community of citizens who regard themselves as members of a self-contained political unit. When, at the close of the Oresteia, Orestes, guilty of matricide with an explanation, is delivered from the Furies to the citizens of Athens for human judgment, notions of man-made law and the polis merge, paving the way for the modern state. Ever since, although we have argued bitterly about how law should be made and what it should say, the intellectual partnership between law and the polis has remained almost as constant as sex and the city. But the very idea of the polis has a darker side. The concept of an inclusionary community of citizens with legal rights and duties linked to a shared political unit necessarily carries with it the seeds of the “alien-other” who lives outside the charmed circle that defines the political unit. The limits of the circle can be conceptual or physical. The Athenians drew the conceptual circle relatively narrowly, including enough people to qualify Athens as the first experiment in democratic rule, but excluding women, slaves, paupers and aliens. Ever since, political theory has been dominated by a struggle to define and re-define the contours of that circle, ranging from efforts to draw it narrowly on the basis of divine right, physical strength, intellect, race, religion, ethnicity, gender, and wealth to efforts to enlarge the circle to encompass all who live in the community or under its rule. The story of American law has been an ever-expanding circle of political membership, characterized by the establishment of democracy, relatively generous naturalization, the end of slavery, the banning of racial discrimination in access to the ballot, the political emancipation of women, the enfranchisement of eighteen-year-olds, the abolition of literacy tests for voting, and the elimination of all vestiges of property qualifications for full citizenship. One group—aliens—has remained outside. Since the polis needs the counterpoint of the alien-other for its continued coherence, excluding aliens residing abroad from the circle is understandable, perhaps inevitable. Expanding it to include aliens living outside the geographical boundary of the polis challenges the very idea of a self-contained, inclusionary political unit; witness the halting efforts to build the European community, the agony of the American Civil War, the fight over the International Criminal Court, the contested status of the United Nations, and the contemporary disagreement over the judicial enforceability of customary international law. But no such conceptual problem complicates the status of lawful permanent resident aliens (LPRs), persons who have been admitted to the polis for long-term residence, but who have not acquired citizenship. Should they be treated as being inside or outside the circle? The answer is of enormous practical importance to LPRs, ultimately defining the level of legal security they enjoy in their new homes. If LPRs are placed outside the circle, their status is fragile and vulnerable. In the chilling words of the distinguished panel of the Second Circuit in Harisiades, their “license to remain is revocable at the sovereign's will.” If, on the other hand, LPRs are invited into the circle, they share many, if not all, the legal protections available to full citizens, including constitutional protection against banishment for controversial political or religious beliefs and associations. Finally, as we shall see, if the circle is drawn in an irregular, arbitrary manner, the lives of LPRs exhibit a baffling mixture of legal protection and extreme vulnerability. This is the story of how the Supreme Court drew the circle very narrowly in Harisiades v. Shaughnessy, so narrowly that LPRs residing in the United States remain exposed to banishment during recurrent outbreaks of fear and mistrust.

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  Explaining Without Pathologizing: Testimony on Battering and its Effects

  Sue Osthoff and Holly Maguigan

  In 1978, a coalition of social scientists, trial consultants, legal workers, and attorneys formed the Women's Self-Defense Law Project in order to help attorneys provide effective representation to women who had been forced to defend themselves against violent attacks. That was also the year that Dr. Lenore Walker first offered expert testimony in support of a battered woman's self-defense claim. In the intervening 25 years, many advocates, researchers, and lawyers—including the authors of this chapter—have joined the effort to demonstrate what these early practitioners seemed to understand so clearly: Like others who defend themselves against imminent harm, battered women who kill their abusers can, and in many circumstances should, argue self-defense. Instead of viewing battered women who kill as insane or otherwise incapacitated (as many attorneys and jurors had done in the past), these pioneers in the field argued that the battered women they represented had been reasonable and justified when they defended themselves against their abusers. In the late 1970s, expert testimony about what came to be known as “battered woman syndrome” (BWS) was introduced to help jurors understand more fully a battered woman's experiences, because this background information was necessary to their evaluation of her reasonableness and self-defense claim. Unfortunately, it did not take long for some scholars and practitioners to mischaracterize this BWS testimony as creating a new and novel defense. Such an interpretation was frequently based on the mistaken belief that testimony on behalf of battered women defendants focused on their pathology, incapacity, or lack of reason. Reverting to the stereotype of battered women as damaged human beings can be particularly problematic for women who kill their abusers, because reasonableness is central to their self-defense claims. The past quarter-century has witnessed the dogged persistence of these misconceptions about battered women who kill and their legal defenses. There are five categories of mistaken notions regarding battered women's legal defenses: 1. Battered women charged with homicide invoke a separate “battered woman's defense” or “battered woman syndrome defense.” 2. The basis of this so called special defense is either vigilantism or a version of the insanity defense. 3. The most important evidence in support of a woman's legal defense is expert testimony. 4. The expert testimony is only about “battered woman syndrome” (BWS). 5. BWS testimony is based on a victimization analysis that denies women's capacity, responsibility, and agency. These errors result from a disconnect between the reality of what goes on in the courtroom and the political and philosophical issues that arise in cases involving battered women who kill. The reality is straightforward: • There is no separate defense for battered women anywhere in the country. • Most battered women who are charged with homicide against abusive partners use the traditional law of self-defense. Self-defense is a justification. Under criminal law, it is the claim that the act was not a crime because it was necessitated by the circumstances. • Expert testimony is not introduced in every battered woman's case. When it is offered, it is generally one of many pieces of evidence introduced to support a woman's defense claim. • In the overwhelming majority of cases where expert testimony is used, this testimony addresses a range of social and psycho logical issues related to the reasonableness of a defendant's use of force to protect herself. It does not focus on the woman's incapacity or lack of reason. We begin this chapter with a review of developments in social science and in the law over the past 25 years. We turn next to the current use of social science testimony in battered women's homicide trials. We conclude with a discussion of the central question: How can we explain the impact of intimate violence without pathologizing battered women and denying their reason and capacity?

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  Nike’s Law: The Anti-sweatshop Movement, Transnational Corporations, and the Struggle Over International Labor Rights in the Americas

  César Rodríguez-Garavito

  Just as sweatshops have become the symbol of the perverse effects of neoliberal globalization, the transnational anti-sweatshop movement lies at the heart of the struggle for social justice in the global economy. In the global North, the reemergence of sweatshops in such cities as New York and Los Angeles entails the return of the economic and legal realities of the nineteenth century. In the South, the exploitative labor conditions and the unfulfilled promise of employment and growth have turned maquilas into an icon of the failure of late twentieth-century neoliberalism. In bridging the North–South divide through highly plural, dynamic, and decentralized transnational advocacy networks (TANs), the anti-sweatshop movement holds out the prospect of a revamped, twenty-first century labor internationalism. Beyond its political and symbolic importance, the anti-sweatshop movement offers a privileged vantage point to examine the role of law in counter-hegemonic globalization for two reasons. First, in terms of social movement theory, the ‘‘framing’’ of the anti-sweatshop cause has crucially relied on law and legal discourse. Given that abuses committed in global sweatshops – from physical violence to sexual harassment and misery wages—undermine fundamental conditions of human dignity, TANs have framed their struggle as a vindication of basic human rights. This has not only lent a potent moral force to the movement but has also placed the mobilization of human rights rules and discourses at the center of TANs’ strategies. Secondly, as I will argue below, the anti-sweatshop movement can be best understood as a component of a broader movement to regulate the operation of transnational corporations (TNCs) in the global economy. A key stake in this global field of confrontation pitting TNCs against TANs—and the myriad governmental and non-governmental organizations siding with each camp, as well as the lawyers, consultants, and academics providing the legal and intellectual ammunition to each—is the definition of the rules establishing the rights of corporations and workers in the global economy. As Wallerstein has put it, ‘‘the creation of these legal structures as well as their real enforcement becomes therefore one of the prime political arenas of conflict in the world-system’’. Thus, as I set out to show in this chapter, the counter-hegemonic potential of the normative vision and legal strategies of the anti-sweatshop movement can be assessed only if seen in relation to the hegemonic visions and uses of law through which TNCs and their supporters seek to consolidate their dominance in the global economy. The legal tools available to actors in the confrontation over labor rights are highly heterogeneous and operate at different scales. In the absence of effective institutions of transnational governance, working conditions in global commodity chains are regulated through myriad public and private arrangements that constitute a legal kaleidoscope rather than a legal system. Thus, in terms of sociolegal theory, the struggle for worker rights takes place in a context of legal pluralism in which national labor laws, ILO conventions, corporate codes of conduct, social clauses in bilateral and regional trade agreements, and unilateral sanctions overlap and clash. This legal kaleidoscope involves both ‘‘soft law’’ created by private actors such as TNCs (e.g. codes of conduct) and NGOs (e.g. alternative treaties) as well as ‘‘hard law’’ backed by state apparatuses. Hegemonic and counter-hegemonic actors actively exploit and shape the unequal opportunities created by the tensions and contradictions within this pluralist legal arena. The use of plural legal fields by social movements is a staple topic of sociolegal research. The existing literature, however, continues to be largely focused on the local and national scales, thus missing the novel forms of legal pluralism and transnational political mobilization associated with globalization. Specifically in the Americas, the area on which this chapter focuses, two different trends have converged to produce this important blind spot in our understanding of contemporary law and social movements. In Latin America, the vibrant tradition of studies on the alternative use of law by popular actors has overwhelmingly focused on local processes of informal law creation within marginalized communities, or the mobilization of national courts by activists. In the US, despite the recognition of legal pluralism, the literature on legal mobilization continues to be dominated by analyses of the use of litigation and domestic courts by social movement organizations. In both scholarly traditions, therefore, the task of inquiring precisely how transnational social movements shape and are shaped by the plural array of rules regulating the world economy remains to be done. The growing literature on transnational social movements offers some useful clues for this task. Particularly relevant is recent exploratory work on the role of NGOs in the ‘‘social construction of law’’. However, as Rajagopal (2003) has noted, social movement research has yet to systematically examine the use of legal institutions and discourses as frames and arenas of contentious political action across borders. Based on ethnographic research on anti-sweatshop activism in the apparel industry in Mexico, Guatemala, and the US, in this chapter I set out to contribute to filling this void by examining the way in which the transnational anti-sweatshop movement has combined political and legal strategies to advance the cause of international labor rights. Since a central premise of my analysis is that such counter-hegemonic use of law should be understood in the context of the ongoing struggle to define the rules regulating capital and labor in the global economy, I also discuss the strategies of hegemonic actors (namely, TNCs targeted by anti-sweatshop TANs) to constrain the reach, the scope, and the enforceability of international labor regulations. My argument is threefold. First, I claim that at the heart of the anti-sweatshop movement lies the effort to realign legal responsibility and corporate economic power. In seeking to establish de facto or de jure joint liability for labor conditions in the global apparel industry, activists seek to cut through the fiction of the Northern manufacturers and retailers and their Southern contractors as independent entities. Conversely, corporate responses to the movement are largely aimed at maintaining this fiction and the existing legal arrangements that support it. Secondly, contrary to approaches focusing on the functionality of legal pluralism and novel forms of ‘‘soft law’’ for the smooth operation of the global economy, I argue that global legal fields are sites of uneven political contention where hegemonic and counter-hegemonic actors struggle to set the hierarchy and the content of competing legal rules. As the study of the field of international labor rights shows, the privileged scale of regulation (whether global, national, or local) and the ‘‘hardness’’ or ‘‘softness’’ of the law are themselves objects of political contention rather than the result of a systemic trend toward global governance and soft law. Thirdly, I posit that transnational hegemonic and counter-hegemonic coalitions pragmatically exploit the tensions and contradictions of this kaleidoscopic legal landscape. TNCs’ and TANs’ strategies constantly shift among different scales and types of law, as well as between political and legal strategies. For instance, TANs simultaneously engage in efforts to bolster national states’ regulatory capacity, create effective global corporate codes of conduct for labor and promote direct action campaigns to boycott the products of targeted TNCs at the regional level. Similarly, while strategically invoking their abidance with weak national labor laws to fend off attempts at cross-border regulation, TNCs strive to maintain the non-enforceable character of codes of conduct and use the political muscle stemming from their capacity to shift production away from inhospitable regulatory environments. In order to substantiate these claims, in what follows I explore the three key issues of contention between anti-sweatshop TANs and their corporate targets. I begin by analyzing the struggle over whether to create a global regulatory system on labor. Then, I examine the battle over precisely how to regulate working conditions in the global economy. In the third section, I consider the conflict over the privileged scale of regulation. Finally, I offer some conclusions. Before proceeding, a note on data is in order. The empirical evidence used in this chapter was collected as part of a broader research project on cross-border organizing campaigns and labor rights in the apparel industry of North and Central America. The project included detailed case studies—based on participant observation, factory visits, and interviews with key actors in Guatemala, Mexico, and the US—of exceptional campaigns that resulted in the unionization of maquila workers. Prominent among them is the campaign at Kukdong, a Korean-owned Nike contractor located near the city of Puebla, Mexico. Since the Kukdong case vividly illustrates the core legal issues of the anti-sweatshop movement in the Americas and has become an icon of the accomplishments of the latter, I will use it to empirically ground the discussion throughout this chapter. The basic facts of the case are as follow. On January 9, 2001, more than 600 out of the 850 Kukdong workers occupied the yard of the factory to vindicate their right to form an independent union and demand the improvement of the worm-infested cafeteria food. Management reacted by firing the strike’s leaders and suing them for ‘‘destruction of private property.’’ After two days of protests, the police forcefully evicted the strikers. The violent reaction of management and the state authorities escalated the conflict and prompted the activation of a budding US–Mexico anti-sweatshop TAN as well as of the code of conduct monitoring systems that had been recently set up under pressure from US student organizations as well as Mexican and US NGOs and unions. By organizing demonstrations at Nike stores in the US and summoning independent monitoring organizations from both countries, the TAN put heavy pressure on Nike (as well as on Reebok, a Kukdong customer at the time) to in turn pressure management to enforce the code of conduct and abide by local labor laws guaranteeing workers’ right to organize. The campaign achieved rapid success and resulted in the reinstatement of all the workers and the founding of an independent union in March 2001. Mexican labor authorities, under strong international pressure, officially recognized the union in September 2001. The union signed a labor contract with management in October 2001 that included a 40 percent wage increase and considerable improvements in working conditions. Kukdong’s union, which continues to thrive several years after its foundation, is the first (and still the only) independent union in the Mexican apparel industry.

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  Indigenous Rights, Transnational Activism, and Legal Mobilization: The Struggle of the U’wa People in Colombia

  César Rodríguez-Garavito and Luis Carlos Arenas

  In an ironic twist, one of the most powerful challenges to globalization has come from the indigenous peoples whose localized, ‘‘pre-modern’’ existence was supposed to have crumbled under the pressure of modern capitalist projects—from that of the colonial project to that of the ‘‘development project’’. Encapsulating the clashing forces of this historical short-circuit, the plight and transnational resistance of indigenous peoples expose with unique clarity the cultural, political, and legal issues at stake in the confrontation between hegemonic and counter-hegemonic globalization. Several reasons explain the visibility and importance of the indigenous peoples in such a confrontation. First, the indigenous movement involves populations historically subjected to the cruelest forms of exclusion. In Latin America, depending on the area, between 50 and 90 percent of the indigenous population died during the first century of the Spanish conquest, and few tribal groups survived the assimilationist policies of the postcolonial states. Today, albeit comprising the majority or a large portion of the population in several countries (71 percent in Bolivia, 66 percent in Guatemala, 47 percent in Peru, and 38 percent in Ecuador), indigenous peoples continue to be ‘‘the poorest of the poor’’. In Guatemala, while 53.9 percent of the population is poor, 86.6 percent of indigenous people fall under the poverty line. The gap is similar in Mexico, where 80.6 percent of the indigenous population is poor, as well as in Peru 79 percent) and in Bolivia (64.3 percent). Thus, if counter-hegemonic globalization focuses on the populations most harmed by hegemonic globalization (Santos and Rodríguez-Garavito’s chapter in this volume), then the struggle of indigenous peoples is one of its core components. Moreover, as we explain below, the rise of the transnational indigenous movement is explicitly rooted in a reaction against the expansion of the frontiers of predatory forms of global capitalism into new territories (e.g. the Amazon) and economic activities (e.g. the commercial exploitation of traditional knowledge and biodiversity). This expansion, in turn, is linked to the pressures to step up the exploitation of natural resources associated with increasing consumption in the North and economic dependence in the South. The examination of the indigenous movement thus allows us to see the new frontiers of neoliberal globalization and of the resistance to it. The indigenous cause illustrates two particularly promising features of the global justice movement. On the one hand, it illustrates the combination of struggles and scales of mobilization that characterizes counter-hegemonic globalization. Indigenous peoples raise claims for self-determination and land that vindicate local customs, laws, and ancestral territories. However, in pursuing these local claims they have not only mobilized globally in alliance with indigenous peoples and transnational indigenous rights organizations but have also joined forces with the global environmentalist movement, the struggle of national ethnic minorities and other counter-hegemonic movements. By bridging movement frames and issues, indigenous peoples have challenged hegemonic actors at every scale, from local colonists and discriminatory national states to transnational corporations (TNCs) seeking to exploit natural resources in their homelands. On the other hand, the fact that the indigenous movement is identity-based brings into relief the distinctively cultural dimension of counter-hegemonic globalization—that is, the fact that global social movements are as much about difference as they are about equality. Indeed, the iconic character of the Zapatista struggle (and the indigenous movement writ large) within the global justice movement lies in its capacity to bring together the aspiration to economic justice (as evident in its launching on the occasion of the entering into force of NAFTA in 1994) and the aspiration to ethnic, racial, and gender justice. The very location of the indigenous cause at the crossroads of different movements, scales, and historical trajectories that accounts for its visibility and importance also explains its difficulties. Therefore, the study of the indigenous movement in action illustrates some of the main tensions and contradictions within counter-hegemonic globalization. Among them are the differences between the time frames and the agendas of Northern NGOs and indigenous peoples, and the ambiguous effects of the judicialization of indigenous rights struggles. Finally, and particularly important for the purposes of this chapter, the transnational mobilization of indigenous peoples has unleashed a process of legal innovation with profound implications for national constitutional systems and the international human rights regime. Centered on the recognition of collective rights and embodied by myriad constitutional reforms and new international legal instruments, this ‘‘renaissance of indigenous peoples for the law’’ has shaken the individualist and Western-centric tenets of liberal legal thought and institutions and holds out the prospect for a cosmopolitan reconstruction of human rights. In this chapter, we examine the connection between politics and law in the transnational indigenous movement. To that end, we offer a case study of the struggle of the U’wa, an indigenous people of 5,000 members living in northeastern Colombia, against oil drilling in their territory. Waged in collaboration with national and transnational environmentalist NGOs and indigenous rights and human rights organizations, the decade-long, ongoing campaign of the U’wa people against Occidental Petroleum (Oxy) and the Colombian government vividly illustrates the potential and the limitations of transnational political mobilization in support of indigenous rights. Given that the struggle has revolved around the interpretation of the U’wa’s collective right over territory, it has crucially involved judicial and quasi-judicial institutions (from the Colombian Constitutional Court and Council of State to the Inter-American Commission on Human Rights and the International Labour Organization) advancing contrasting discourses and agendas on law and human rights. Our analytical focus is twofold. First, we examine the connection between local, national, regional, and global contentious mobilization in support of the U’wa. Thus, we give especial attention to the transformation of the membership, strategies, and impact of the pro-U’wa coalition as it shifted from the local and national scales to the regional and global scales—and then, in a ‘‘boomerang effect’’, returned to Colombian political and legal venues. Secondly, we engage the nascent literature on the role of law in counter-hegemonic globalization (see Santos and Rodríguez-Garavito’s chapter in this volume) by focusing on the distinctively legal strategies of the U’wa coalition and assessing the potential and limitations of such strategies for the advancement of the U’wa cause and the movement for global justice writ large. The chapter is organized as follows. In the first section, we locate the U’wa struggle in the broader economic, political, and legal context of the turn to neoliberalism and the rising indigenous movement in Latin America. In the second, we zero in on the U’wa campaign as it has unfolded in national and international settings. In the third section we step back to assess the achievements and limitations of the campaign along our two analytical axes. Finally, we offer some conclusions.

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  The Strategic Use of Patents: Implications for Antitrust

  Daniel L. Rubinfeld and Robert Maness

  The intersection between intellectual property (IP) and antitrust continues to be the subject of heated debate among academics and policy makers. The exercise of intellectual property rights has traditionally been viewed as a legitimate means to earn monopoly rents with respect to one or more products. Indeed, both US competition agencies have made it clear that the protection of intellectual property is essential to provide firms and individuals with incentives to innovate. Thus, the IP guidelines explicitly recognize that intellectual property law and antitrust law share the common purpose of promoting innovation and enhancing consumer welfare. Nevertheless, IP rights sometimes to come into conflict with antitrust, whose goal is to encourage competition so as to benefit consumers and producers. Yet, despite acknowledgment that these two traditions share a common purpose, there remains considerable tension between the property rights granted under IP laws and the antitrust laws’ goal of promoting consumer welfare. In recent years the courts have become more assertive in laying out territory in which the exercise of intellectual property rights can violate the antitrust laws. In 2003, the Federal Trade Commission (FTC) issued a report on intellectual property and antitrust that flowed in part from an extensive set of joint hearings on the subject by the Department of Justice and the FTC. As firms with substantial patent portfolios have become more aggressive in asserting their IP rights, it has been natural to pose the question of whether, and if so under what conditions, the antitrust laws might be violated through the leveraging of market power from one market to another, through the inappropriate creation or maintenance of barriers to entry, or through the encouragement of collusive behavior. While these questions have been raised by academics and by litigators, there remains little agreement on where the line should be drawn regarding anticompetitive use of patents and other forms of intellectual property. In this chapter, we offer an economic perspective on one aspect of the IP-antitrust nexus—the ability of firms to use their IP portfolios to compete with rivals. We recognize, as have the courts, that the grant of IP rights fives the owner of that right substantial leeway to utilize those rights; these rights include (i) the right to license or not in a broad array of circumstances; (ii) the right to change licensing terms; (iii) the right to settle patent litigation; and 9iv) the right to offer package licenses. Nevertheless, we believe that there are and should be limitations to those IP rights. We are concerned with one particular type of strategic behavior—the ability to use one’s IP portfolio to raise one’s rivals’ costs. We will explain that such a strategy can, under some circumstances, serve an anticompetitive goal—either through predation against one or more competitors, or by encouraging competitor to tacitly collude in raising prices. While a number of points that we will make are quite general, we will focus on a particularly interesting raising rivals’ cost strategy—the use of package licensing of intellectual property to anticompetitively disadvantage rivals. We believe that such a strategy has the potential to succeed in industries where innovation and design are important elements of competition between rivals. We will suggest that whether or not such a strategy should be seen as anticompetitive necessarily involves a balancing of the IP rights (how likely they are to be valid or to have the appropriate scope) and the likely harm to competition (how likely it is that competitive firms will be harmed sufficiently to exit the industry or to no longer restrain competition, and/or how likely it is that a collusive arrangement can be encouraged). This chapter is organized as follows. In Section II, we offer the foundation of our analysis, an economic discussion of ways in which the strategic use of IP can raise rivals’ costs and generate anticompetitive effects. Section III offers a case study that develops these issues with specificity. In Section IV we conclude by offering an overview of the policy issues that arise in this most difficult subject area.

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  Law, Politics, and the Subaltern in Counter-hegemonic Globalization

  Boaventura de Sousa Santos and César Rodríguez-Garavito

  This book arose from our puzzlement at the paradoxical state of socio-legal knowledge on globalization. The beginning of the new millennium has witnessed a groundswell of proposals for the transformation or replacement of the national and international legal institutions underpinning hegemonic, neoliberal globalization. Put forth by variegated counter-hegemonic movements and organizations and articulated through transnational networks, these proposals challenge our sociological and legal imagination and belie the fatalistic ideology that ‘‘there is no alternative’’ to neoliberal institutions. The initiatives are as diverse as the organizations and networks advocating them, as the case studies in this book lay bare. Impoverished women in Tanzania as well as marginalized communities and progressive parties in Brazil mobilize to change and democratize the national and international regulatory frameworks that effectively exclude them from key political arenas such as the process of allocating public budgets (see Rusimbi and Mbilinyi’s and Santos’ chapters on participatory budgeting). NGOs, unions, consumers, workers, and other actors in the global North and South organize to challenge the market-friendly regulation of labor conditions, corporate accountability, intellectual property rights, and the environment which fuels the spread of sweatshops in the Americas, the African AIDS pandemic, and environmental degradation in Europe (see Rodríguez-Garavito’s, Shamir’s, Klug’s, and Arriscado, Matias, and Costa’s chapters). Progressive activist-researchers, people of faith, and members of marginalized communities in the US—the ‘‘inner Third World’’ of laid-off industrial workers, migrants, and informal laborers—come together to collectively conceive cosmopolitan identities and legal rules in opposition to the exclusionary ideologies and laws of immigration (see Ansley’s and Larson’s chapters). Social movements involving some of the most marginalized classes in the global South—landless peasants, subsistence farmers, and indigenous peoples—strategically mobilize national courts and transnational advocacy networks (TANs) to assert their rights to the land, their culture, and the environment (see Houtzager’s, Rajagopal’s, Visvanathan and Parmar’s, and Rodríguez-Garavito and Arenas’ chapters). Articulated through now well-established regional and global mechanisms such as the World Social Forum (see Santos’ chapter), these and myriad other initiatives have shown not only that ‘‘another world is possible,’’ but have spurred an unprecedented effervescence of debate and experimentation in bottom-up legal reform and new international legal regimes (see Pureza’s chapter). Against the background of such fervent experimentation and institutional creativity at the grassroots level, the paradox lies in that theories and empirical studies on law and globalization have multiplied apace while missing almost entirely this most intellectually challenging and politically compelling aspect of globalization. Indeed, the existing literature draws on a rather conventional account of globalization and global legal transformations as top-down processes of diffusion of economic and legal models from the global North to the global South. Thus, the literature overwhelmingly focuses on the globalization of legal fields involving the most visible, hegemonic actors (whose visibility is thereby further enhanced) such as transnational corporations (TNCs) and Northern states. The result is a wide array of studies on such topics as the global spread of corporation-made lex mercatoria, the expansion of the interstate human rights regime and international law at large, the exacerbation of legal pluralism brought about by the globalization of production and new communication technologies, and the export and import of rule of law and judicial reform programs. Therefore, law and society studies have largely failed to register the growing grassroots contestation of the spread of neoliberal institutions and the formulation of alternative legal frameworks by TANs and the populations most harmed by hegemonic globalization. Thus, despite a strong tradition of studies on the use of law by domestic social movements and a growing literature on transnational social movements, the role of law in counter-hegemonic globalization and the challenges that the latter poses to legal theory and practice have yet to be tackled. Aware that the diagnosis of the insufficiencies of this approach was shared by numerous social scientists and legal scholars based in or deeply involved with the South (either the global South or the ‘‘inner South’’ in the core countries), who have themselves been participants in the global justice movement, in 2000 we decided to launch a collaborative research network (CRN) on law and counter-hegemonic globalization. The CRN was meant to serve as a meeting and discussion space for scholars and scholars/activists from around the world engaged in critical sociolegal research and legal advocacy across borders. Emphasizing the participation of researchers and activists from the global South, it brought together a core group of participants (including several of the contributors to this volume) in meetings in Miami (2000), Budapest (2001), and Oxford (2001). The group rapidly expanded as we took the project to the sites of our own work in Latin America, Africa, Europe, and the US. It thus became a broad, loose circle that partially overlapped with other networks of sociolegal research and transnational advocacy in which the CRN members were involved. The effort to bridge the divides between South and North and between academic work and political engagement made the process of producing this book an exceptionally challenging and stimulating transnational endeavor. Further conversations and debates among contributors to this volume took place in such venues as the World Social Forum in Porto Alegre (2003, 2005) and Mumbai (2004), the Latin American Conference on Justice and Society organized by the Latin American Institute for Alternative Legal Services (ILSA) in Bogotá (2003), the International Conference on Law and Justice at the University of Coimbra (2003), and the Conference on Global Democracy and the Search for Justice at the University of Sheffield (2003). Moreover, several of the case studies were written in the field as the authors worked closely with the movements, state agencies, and NGOs they analyze in their chapters. Thus, like the movements themselves, the contributors combined local engagement with transnational dialogue. While the complications associated with this type of enterprise—from language barriers to the hectic pace of grassroots activism—made the editorial process all the more difficult, they also give this book its distinctive character. Indeed, in our view, the specific contribution of this volume and the common thread running through all its chapters lies in the particular, bottom-up perspective on law and globalization that it advances and empirically illustrates. This perspective has both an analytic and a political dimension. From an analytic viewpoint, it entails the detailed empirical study of legal orders as they operate on the ground. This includes not only the official law of courts and legislatures but also the myriad legal rules created and enforced by such disparate social actors as civil society organizations, corporations, and marginalized communities. This staple analytic strategy of sociolegal research tends to exhaust the meaning of the ‘‘bottom-up’’ approach in the US law and society tradition (see, for instance, Munger 1998). When applied to global social and legal processes, this research strategy calls for the type of approach that Marcus (1995) has dubbed ‘‘multi-sited ethnography’’: a combination of qualitative methods applied to the study of different locales that aims to examine the operation of global sociolegal processes shaping events in such sites. To our mind, the bottom-up perspective illustrated by the case studies in this book also has a distinctly political dimension that goes hand in hand with its analytic counterpart. As we explain in more detail below, the purpose driving the analysis is to expose the potential and the limitations of law-centered strategies for the advancement of counter-hegemonic political struggles in the context of globalization. This entails amplifying the voice of those who have been victimized by neoliberal globalization, be they indigenous peoples, landless peasants, impoverished women, squatter settlers, sweatshop workers, or undocumented immigrants. Including those at the bottom, therefore, is a key part of our bottom-up approach. This is indeed how this approach is overwhelmingly understood in the global South, as the longstanding ‘‘alternative law’’ movement in Latin America and ‘‘social action litigation’’ in India bear witness. In the remainder of this introductory chapter, we further characterize this approach in three steps. First, in order to locate this book in the context of the literature on law and globalization, we look more closely into the dominant sociolegal approaches and inquire into the reasons why they have rendered invisible grassroots resistance to neoliberal institutions and initiatives for alternative legal forms. Secondly, we elaborate on the tenets of our bottom-up approach to law and globalization, which we call subaltern cosmopolitan legality. We argue that subaltern cosmopolitan legality is a mode of sociolegal theory and practice suitable to comprehend and further the mode of political thought and action embodied by counter-hegemonic globalization. Finally, we explain the selection of topics and the organization of the book. Throughout the chapter, we describe, as we go along, the case studies contained in the remainder of the book and point to the ways in which, in our view, they illustrate subaltern cosmopolitan legality in action.

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  Curiosity-Driven Research and University Technology Transfer

  Katherine J. Strandburg

  The debate about university technology transfer policy would benefit from increased attention to two parts of the technology transfer equation: the societal purpose of basic scientific research and the characteristics of scientific researchers. This Chapter was prepared for the Colloquium on University Entrepreneurship and Technology Transfer hosted by the Karl Eller Center of the University of Arizona and sponsored by the Ewing Marion Kauffman Foundation. I am grateful to them for their support. I am also grateful to the participants in the Colloquium for helpful comments. Finally, I thank my research assistant, David Zelner, for assistance with this project. One purpose of curiosity-driven research is to provide a demand function that can serve as a proxy for the socially optimal (but unknowable) demand function for the unpredictable research that is necessary for long-term technological progress. Preserving the curiosity-driven research peer review “market” is thus important for that progress. This analysis highlights the importance of adequate funding for curiosity-driven research. A model of typical university scientists’ preferences can be used to assess how technology transfer policies may affect the social norms of the research community and the long-term viability of the curiosity-driven research endeavor. The analysis suggests that patenting will be an ineffective technology transfer mechanism unless researchers are precluded from using patenting to maintain control over follow-on research.

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  Law

  Jeremy Waldron

  Analytic legal philosophy addresses the nature of legal norms, their relation to moral and other reasons, and their interpretation and application by courts. Questions about the nature of law have long been dominated by the classic dispute between legal positivists and theorists of natural law. Positivists hold that whether a legal system exists in a given society, and if so what the answer is in that society to any particular legal question, are matters of fact about how power is exercised in that society. Natural lawyers believe that law is in the first instance a set of moral norms embodied in the way things are; they associate law with objective principles of justice and right, accessible to reason, which can be used as standards to judge the exercise of human power.

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  Moral Autonomy and Personal Autonomy

  Jeremy Waldron

  Modern philosophers distinguish between personal autonomy and moral autonomy. Talk of personal autonomy evokes the image of a person in charge of his life, not just following his desires but choosing which of his desires to follow. It is not an immoral idea, but it has relatively little to do with morality. Those who value it do not value it as part of the moral enterprise of reconciling one person's interest with another's; instead, they see it as a particular way of understanding what each person's interest consists in. Moral autonomy, by contrast, is associated specifically with the relation between one person's pursuit of his own ends and others' pursuit of theirs. This is particularly true of its Kantian manifestations. A person is autonomous in the moral sense when he is not guided just by his own conception of happiness, but by a universalized concern for the ends of all rational persons. Modern proponents of personal autonomy are anxious to emphasize the distance between their conception and the moral conception. But I think it is worth considering some of the overlaps and affinities between them. We all know that autonomy in the moral sense is supposed to engage very specific capacities of rational deliberation and self-control. And these might seem out of place in a conception of autonomy oriented towards the pursuit of the good life at an individual level.

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  Mutual Recognition, Functional Equivalence and Harmonization in the Evolution of the European Common Market and the WTO

  Joseph H. H. Weiler

  The creation of a Common Market Place, indeed all trade liberalization regimes, produces an inevitable tension; a tension between the discipline of free trade and the regulatory autonomy of states. This tension is as true for the EU as it is true for the WTO, the NAFTA and all other similar trade regimes. It is structural. One way to reconcile this tension is by harmonization, but that is a heavy handed approach, which is politically difficult and might unnecessarily obliterate legitimate differences between states. The principle of mutual recognition (or as I shall eventually call it, functional equivalence) is an intermediate device which may help in reconciling the basic tension created by regulatory diversity in a single or liberalized marketplace. It cannot, however, be understood outside the general practice of free movement. The focus of this essay will be on the European Community, indeed on the heart of the Community, the common market in goods (which over the years has been closely synchronized with the common market in the other factors of production, notably services) and the place of mutual recognition within this market. I will try and show how (and why), over time, an early radical approach to market integration has been replaced by a more mature approach far more respectful or national regulatory autonomy. I will further argue that within one generation the doctrinal foundation of the law of the common market has shifted from a sweeping insistence on removal of obstacles to an approach which, at its heart, interdicts discrimination and attacks obstacles only when these bar access to the marketplace. My method will be simple enough. I will present snapshots of some of the most significant cases in the area of free movement of goods, cases so well-known as to obviate the necessity of any detailed description, and then attempt to transform these discrete snapshots into a cinematographic whole, a narrative over time in which the evolutionary nature of the jurisprudence will receive most attention. I regard this jurisprudence as suggestive of five ‘generations’: first, a foundational period stretching from the mid-1960s and culminating in Dassonville in the early 1970s; followed by a second generation in the late 1970s and early 1980s (Cassis; Regenerated Oil); a third generation in the mid- to late 1980s (a non-judicial phase of legal evolution consisting, inter alia, of the White Paper, the New Approach to Harmonization and the Single European Act); followed in turn by a fourth generation in the early 1990s (Keck). The present and near future will constitute the fifth generation for the purposes of this essay. The metaphor of generations is used not simply to underline change from one period to another, but also to underline continuity—the new and different is, in this account, an outgrowth or reaction to that which preceded it. And in describing this change and continuity I will be at pains to suggest some ways in which material constitutionalism can be seen as situated in and conditioned by the structural constitutional evolution of the Community. The shortcomings of my approach are self-evident: first, it is a story in which only landmarks feature. Much detail, important detail, is thus lost, though this might be a virtue, too, if the purpose of the essay is to provoke those who are already familiar with the field. The focus on court decisions and jurisprudence is another major limitation. Overall political economy, the dynamics and permutations of regulatory competition and the race to the bottom syndrome, economic analysis of various options adopted by the Court, and the true saga of implementing the White Paper are, at best, ‘context’ against which the jurisprudence takes place. Doctrine also suffers and not only where my positions or representations of doctrine will be challenged by many for which no apology is made, but also in eschewing whole areas such as price-fixing, intellectual property and the like for which I do make the proverbial apology of time and space.

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  Foreword: The Ripples of NAFTA

  José E. Alvarez

  This volume provides practitioners, academics and students with the first definitive coverage of NAFTA investment arbitration, including a comprehensive overview of the first ten years of practice in the area of investment disputes under the NAFTA provision. As in any nascent undertaking, the successes, failures and controversies that have been the experience of the state parties involved in NAFTA, are keenly reflected in the Chapter 11 cases. In these essays the readers will find substantive and procedural insights into an emerging new area of public international economic law. Many see the workings of the NAFTA agreement, particularly Chapter 11, as a Rorschach test for how state parties can approach and effectively adjudicate investment disputes. For this reason all practitioners and scholars concerned with international trade and foreign direct investment issues should consult this book.

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  Legal Unilateralism

  José E. Alvarez

  In the wake of the United States’ invasion of Iraq in March 2003, the future of transatlantic relations has become a hot topic. Some are predicting that the next “clash of civilizations” will be between Europe and the United States while others, more sanguinely, contend that the political and economic fundamentals of the transatlantic relationship remain strong. I am content to leave these grander debates to non-lawyers capable of addressing them. The argument here is more focused on the emerging divergences in legal culture between Europe and the United States, particularly with respect to public international law and its institutions. My contention is that the perceived “unilateralism” of the U.S., which is the source of considerable transatlantic friction, has a legal dimension: European international lawyers take multilateralism more seriously than do many of their U.S. counterparts.

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  The Closing of the American Mind

  José E. Alvarez

  This talk appropriates the title of Allan Bloom’s Bestseller of the late 1980s, an outgrowth of then fashionable U.S. “culture wars.” As some of you may recall, Bloom’s targets were the sixties reforms within universities, especially the demise of the Great Books Western canon, and the rise of fashionable critiques (feminism, racism) leading to other bad “isms,” such as nihilism, historicism, deconstructionism, and cultural relativism. Bloom argued that the U.S. mind was closing due to the leveling rhetoric of “second rate” philosophers like John Rawls, because we had neglected European culture, because our minorities no longer wanted to assimilate, and because we no longer revered our Constitution and the values of our Founders. His recipe for opening young minds including study of Immanuel Kant’s categorical imperative, Greek classics, and the Bible as sacred text. His book was nostalgic for the golden age of American private elite universities, namely the 1950s – when Cold War competitiveness gave direction to a liberal education, when we recognized “evil” and dared call it such, and when few were afraid of defending American values of freedom and equality. Bloom’s book ended with a frank plea for American stewardship of the world: “This is the American moment in world history, the one for which we shall forever be judged. Just as in politics the responsibility for the fate of freedom in the world has devolved upon our regime….”

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  Story of Baker v. Carr

  Stephen Samuel Ansolabehere and Samuel Issacharoff

  Occasionally in all walks of life, law included, there are breakthroughs that have the quality of truth revealed. Not only do such ideas have overwhelming force, but they alter the world in which they operate. In the wake of such breakthroughs, it is difficult to imagine what existed before. Such is the American conception of constitutional democracy before and after the “reapportionment revolution” of the 1960s. Although legislative redistricting today is not without its riddle of problems, it is difficult to imagine so bizarre an apportionment scheme as the way legislative power was rationed out in Tennessee, the setting for Baker v. Carr. Tennessee apportioned power through, in Justice Clark's words, “a crazy quilt without rational basis.” Indeed, forty years after Baker, with “one person, one vote” a fundamental principle of our democracy, it may be hard to imagine what all the constitutional fuss was about. Yet the decision in Baker, which had striking immediate impact, marked a profound transformation in American democracy. The man who presided over this transformation, Chief Justice Earl Warren, called Baker “the most important case of [his] tenure on the Court.” Perhaps the simplest way to understand the problem is to imagine the role of the legislator faced with the command to reapportion legislative districts after each decennial census. Shifts in population mean that new areas of a state are likely to emerge as the dominant forces of a legislature. But what if the power to stem the tide were as simple as refusing to reapportion? It happened at the national level when Congress, realizing that the swelling tide of immigrant and industrial workers had .moved power to the Northeast and the Midwest, simply refused to reapportion after the 1920 census. And it happened throughout the U.S. for much of the twentieth century as rural power blocs in the state legislature realized that reapportioning would yield power to the urban and suburban voters and remove incumbent politicians from their clubby sinecure. When the original complaint in Baker was filed in 1959, the Tennessee Legislature had been refusing for nearly fifty years to apportion the state legislative districts. This was despite the express requirement of the Tennessee Constitution that each legislative district have the same number of qualified voters. As a result, there existed an enormous disparity in the voting strength of individual voters. For example, southcentral Moore County, with 2,340 voters, had one seat in each house of the state legislature, while Shelby County, covering the city of Memphis, had only seven seats for its 312,345 voters. “Districts with 40 percent of the state's voters could elect sixty-three of the ninety-nine members of the house, and districts with 37 percent of the voters could elect twenty of the thirty-three members of the senate.” This pattern of maldistribution of representatives, which existed across the country, resulted from the increasingly urban nature of American life during the twentieth century. As urban areas grew, the malapportionment of representatives increased. Between 1900 and 1960, the voting population of Tennessee grew from 487,380 to 2,092,891. Accompanying this growth was a massive migration from the rural areas of the state to the cities of Memphis, Nashville, Knoxville, and Chattanooga. And, while the Tennessee Constitution provided for legislative reapportionment on the basis of each decennial census, there was no way for the people of Tennessee to compel the legislature to reapportion. The state courts were unresponsive to the cause, and Tennessee lacked any procedure of popular referendum or initiative. Because rural Tennessee legislators, like those in Georgia, Alabama, Florida, California, and many other states, had everything to lose by reapportioning their legislative districts according to the population shift, they stood firm, decade after decade defying the mandate of their state constitution. And “when the movement toward [the cities] began, then swelled to floods at the end of World War II, the political power stayed behind on the cotton flats, the hills and the ridgeland farms.” The only remedy for this profoundly lopsided version of democracy lay in the hands of the very legislators whose political lives depended upon its continued existence. In short, the majority of voters in Tennessee were “caught up in a legislative strait jacket.” Yet it was not until 1962, when the Supreme Court announced in Baker that challenging the constitutionality of a legislative apportionment “presents no nonjusticiable ‘political question,’” that a cure for the disproportionate concentration of power in the hands of rural legislators was finally found. Why were the obstacles to judicial correction of legislative misapportionment so difficult to overcome?

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  African Philosophy and African Literature

  Kwame Anthony Appiah

  A central culture of philosophical questions that faces every contemporary African of a reflective disposition centers on questions of identity. A great deal of ethical and political weight is borne by many identities-ethnic, national, racial, and continental-in the life of modern Africa. And a great deal of modern African literature has naturally had these questions at its heart. Chinua Achebe has put the matter characteristically concisely: It is, of course, true that the African identity is still in the making. There isn't a final identity that is African. But, at the same time, there is an identity coming into existence. And it has a certain context and a certain meaning. Because if somebody meets me, say, in a shop in Cambridge [England], he says “Are you from Africa?” Which means that Africa means something to some people. Each of these tags has a meaning, and a penalty and a responsibility. All these tags, unfortunately for the black man, are tags of disability.… I think it is part of the writer's role to encourage the creation of an African identity. It is natural, therefore, that one way in which philosophy and literature are closely related in Africa today is in their shared reflection on these questions; and these will be the focus of this chapter.

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  Akan and Euro-American Concepts of the Person

  Kwame Anthony Appiah

  This essay explores the theories of the person within Western and Akan traditions. It identifies six obstacles to theory comparison. It argues that there may be no non-question begging way of comparing theories since these theories themselves play key roles in understanding how each is to be used.

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  Language, Race, and the Legacies of the British Empire

  Kwame Anthony Appiah

  This chapter discusses how throughout the former colonies of the British empire in Africa, as well as the Caribbean and the United States, the English language is a marker of a cultural legacy that many Africans and people of African descent have inherited, but also a legacy to which they have made an abiding contribution. It is of course a legacy that connects all people of the English-speaking Commonwealth, but in Africa in particular the legacy is more complicated and more contested than in most other parts of this world.

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  Evolution of Corporate Criminal Liability: Implications for Managers

  Jennifer H. Arlen

  At last, there’s a business leadership book that really tackles the tough issues of integrity and governance. Taking a unique approach to leadership, this book gathers the path-breaking perspectives of influential shareholder activists; opinion-leading CEOs of major firms; trailblazing, distinguished academics; and courageous regulators. The all-star roster of contributors from the corporate world and academia includes Vanguard's John Bogle, former SEC Chairman Arthur Levitt, and Harvard Business School's Rosabeth Moss Kanter. Sherron Watkins, Enron whistleblower and Time Person of the Year, shares an inside look at Enron, and Barbara Ley Toffler, former head of Arthur Andersen's Ethics Practice, paints a picture of Anderson Consulting before their fall.

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  The Legal Foundations of the Enlarged European Union

  George A. Bermann and Gráinne de Búrca

  Viewed collectively, the chapters in this Part of the Book, entitled ‘The Legal Foundations of the Enlarged European Union,’ remind us that the term ‘legal foundations’ covers a wide range of understandings. Clearly, the particular aspect or dimension of those foundations on which one chooses to focus––and each chapter in this Part makes a choice in that respect––determines the nature of the enlargement story to be told. Before turning to the particularities that each chapter addresses, we need to underscore certain commonalities. First, each contribution acknowledges that the most interesting and fundamental questions associated with enlargement have nothing to do with ‘numbers,’ whether in the membership of the European Parliament, or in the qualified majority voting formula in the Council, or in the composition of the Commission. This is not to say that the ‘numbers’ issues may not in turn reveal problems that are, themselves, quite fundamental. Moreover, the contributions all demonstrate, albeit to differing extents, that while the contemporaneous occurrence of enlargement and the recently concluded Constitutional Convention is by no means coincidental, their relationship is far from a simple or uni-directional one. Thus, although current debates over the constitutional treaty appear to be part of the enlargement picture (and vice versa), the prospects of enlargement are not claimed to have triggered the constitutional convention, nor is the Convention described as essential to the realisation of this enlargement or future enlargements. Indeed, it was believed by many at the time, including the accession states themselves, that the 2000 IGC culminating in the Treaty of Nice had made (however contentiously) the basic institutional changes that were required to facilitate the next enlargement. At the same time, however, the prospect of enlargement has certainly rendered more urgent many of the tasks and institutional questions faced by the Convention, and in some cases has added new dimensions to existing dilemmas and challenges.

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  European Constitutionalism and the Charter

  Gráinne de Búrca and Jo Beatrix Aschenbrenner

  The aim of this chapter is to situate the EU Charter of Fundamental Rights in the context of the much broader, less easily captured and often slippery notion of European constitutionalism. The present time is, by any standards, an exciting period in European constitutional development. A particular confluence of events has triggered a high-level and sustained degree of political debate about the constitutional future of the EU, beginning with contributions and speeches from virtually all of Europe's political leaders in 2000 and 2001, and continuing with the Convention and the Forum on the future of Europe in 2002-2003, leading up to the 2004 Intergovernmental Conference (IGC). Further, the 'second phase' of the process regarding the legal nature and effects of the Charter is well underway. The first phase, in accordance with the decision of Cologne European Council meeting in 2000, was solemnly to 'proclaim' the Charter, and this was done in Nice in December 2000 by the Parliament, the Commission and the Council. The second step was then to 'consider whether and if so how an integration of the Charter into the treaties could take place', and the 'Convention on the Future of Europe' which was subsequently established with a mandate to prepare for the 2004 IGC was given a central role within this constitutional process. The third phase is apparently to be the ultimate decision of the IGC itself as to the role and effect of the Charter. However, certain recent EU policy initiatives place the debate on constitutionalism and the Charter in a starker and more concrete context, and raise a number of troubling questions. To take a vivid example, the speedy adoption of a European arrest warrant has been one of the internal EU responses to the attacks of 11 September 2001. In the Preamble to the framework decision on the arrest warrant, the Union's respect for fundamental rights, in particular those mentioned in Chapter VI of the Charter of Fundamental Rights relating to 'justice', is proclaimed. Two preliminary comments should be made in this context. The first is that mere reference to fundamental rights and to the Charter does not alter the fact that the European arrest warrant in practice undermines such rights, as indeed has been argued by a number of NGOs and by dissenting voices within the European Parliamentary debate. Secondly, a recent commentator has posed the pertinent question whether 'any sort of debate about constitutions, constitutionalism and constitutionalisation' including the work of the high-profile Convention 'can assist in resolving the very real political problems faced by the EU at the present time', problems which include the economic challenges of globalisation, reform of the institutions, and the impending enlargement of the EU. In order to relate the emergence of the Charter to the development of European constitutionalism, we begin by outlining the political context and background to the current constitutional debate. Secondly, various understandings of European constitutionalism are discussed, and finally, the place and role occupied by the Charter within this picture of European constitutional development is appraised.

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  Libertarianism and Character

  Richard A. Epstein

  The topic of this chapter is the relationship between libertarian theory and the development of individual character. To set the stage very quickly, I note at the outset that the general principles of Libertarian thought are powerful because of their simplicity: respect individual autonomy, enforce property rights, respect private contract. Classical liberal theories conceive of a somewhat larger role for the state, which has the power to impose taxes, condemn property, manage common pool resources, and limit the power of monopoly. For the purposes of this chapter, however, the differences between these two theories are relatively unimportant because the focus is on those personal obligations that individuals have to their fellow citizens, not on the legal mechanisms of the enforcement of those obligations. Hence, although these differences will be noted when relevant, I shall only stress the similarities between the two schools of thought. For convenience’s sake, I therefore use these two terms interchangeably, unless otherwise noted. Libertarian thought, broadly conceived, has little to say about the character and motivations of ordinary human beings. To be sure, libertarian thought develops a moral system insofar as it works with concepts of justice and injustice, right and wrong. But as a moral theory, its sole office is to establish the proper set of legal relationships between individuals. It is not, in any sense, an effort to identify the mainsprings of human conduct, to guide individual choices, or to prescribe whether people can be generous or stingy, gregarious or taciturn, impulsive or reflective. Indeed, it would be a mistake of major proportions to assume that legal rules are a dominant force in shaping individual character; family, school, and church are much more likely to be powerful influences. The people who run these institutions will use their influence to advance whatever conceptions of the good they hold, no matter what the state of the law. The generous person will continue to be generous even (and perhaps because) the law does not impose an obligation of generosity.

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  Saturns for Rickshaws: The Stakes in the Debate Over Predispute Employment Arbitration Agreements

  Samuel Estreicher

  The casual observer might be forgiven for thinking that the debate over predispute employment arbitration agreements ended in 1991, when the Supreme Court held in Gilmer v. Interstate/Johnson Lane Corp. that the Federal Arbitration Act of 1925 (FAA) requires enforcement of such agreements, even when they are obtained as a condition of employment, and would preclude employees or former employ from suing in court on their federal (or state) statutory discrimination claims. The plaintiff bar, however, proceeded to launch a decade-long effort to undo Gilmer, meeting with little success anywhere but the Ninth Circuit. One of the premises of their challenge was the fact that the Court in Gilmer had not decided the scope of the FAA' s section 1 exclusion of "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.'' That legal issue has now been laid to rest with the Supreme Court's decision in Circuit City Stores, Inc. v. Adams. In Circuit City, the Court rejected the Ninth Circuit's reading that section 1 excluded all employment contracts from the FAA's reach, and agreed with the view of the other eleven circuits that such a broad exclusion cannot be squared with the provision's specific reference to the employment contracts of "seamen" and "railroad employees." This language, the Court reasoned, indicates a congressional intention to exclude only employment contracts of "transportation workers," i.e., other "class[es]" of workers directly engaged in interstate transportation function in the same way that seamen and railroad employees do. This article leaves for others the question whether the Court correctly interpreted the scope of the section 1 exclusion. Rather, the focus here is on the underlying policy debate that undoubtedly influenced the Justices, much as it influences the opponents of predispute agreements to arbitrate employment claims.

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  External and Internal Explanation

  John A. Ferejohn

  Should the social sciences focus more than they now do on solving real (explanatory) problems and less on developing methodologies or pursuing methodological programs? Two distinct worries animate this question. One is that too many resources may be devoted to the development and refinement of methodologies and theories, while too little attention is paid to the actual things needing explanation. In this sense there may be a misallocation of social scientific resources. The other worry is that when proponents of some methodology turn to explaining a particular event or phenomenon, they tend to produce distorted accounts; they are deflected by their inordinate attention to and sympathy for their favorite method. Method-driven social science comes up with defective explanations. Proper attempts to explain things, one might think, ought to be open ended and responsive to the phenomenon to be explained and not be committed in advance to any particular explanatory methodology. Such a commitment smacks of dogmatism or a priori-ism. These complaints are often illustrated by the familiar metaphors of drunks searching under street-lamps and the law of the hammer. My inclination is to resist the question as not quite usefully posed. The development of systematic methodologies and theories is what permits the social sciences—or particular approaches to social science—to make distinctive and sometimes valuable contributions to understanding the events that interest us. There are several reasons why this is the case. A methodological focus can throw new light on old issues in various ways; things that might be taken for granted from one perspective look problematic and in need of explanation from another. It can show how new kinds of evidence can bear on the explanation of an event, and how evidence—old as well as new—ought be interpreted. Even if commitment to a particular method tends to produce uneven or partial explanations in some cases, such a commitment can enhance our understanding of phenomena by providing a new perspective on events that had previously been thought to be adequately understood.