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  Article 78

  Franco Ferrari

  “The Draft UNCITRAL Digest and Beyond” is one of the most useful single volumes available on the CISG. It includes the full text of the draft “UNCITRAL Digest” which catalogues the cases and arbitral awards to date that have interpreted and applied the CISG on an article by article basis. “The Digest and Beyond” includes also commentary by eminent CISG scholars that addresses issues not yet considered in the cases. With more than 1000 decisions applying the CISG in courts and arbitral tribunals around the world, the UNCITRAL Secretariat charged five CISG experts from a variety of regions with the task of creating a digest of CISG case law. “The Digest and Beyond” includes the draft “UNCITRAL Digest”, even before it is released officially by UNCITRAL. It also goes where the authors of the Digest were not allowed to go, given the narrow mandate within which the drafters were asked to work. Its chapters build upon the work of the “UNCITRAL Digest”. The Digest describes the reasoning and results of existing CISG cases; in “The Digest and Beyond”, the Digest authors analyze those cases, and discuss issues that have not yet arisen in the case law. Thus, in many ways, “The Digest and Beyond” provides scholarship that can direct future cases in areas that have not yet been considered by courts and arbitrators as well as in areas in which contradictory court decisions exist.

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  Articles 1-13

  Franco Ferrari

  “The Draft UNCITRAL Digest and Beyond” is one of the most useful single volumes available on the CISG. It includes the full text of the draft “UNCITRAL Digest” which catalogues the cases and arbitral awards to date that have interpreted and applied the CISG on an article by article basis. “The Digest and Beyond” includes also commentary by eminent CISG scholars that addresses issues not yet considered in the cases. With more than 1000 decisions applying the CISG in courts and arbitral tribunals around the world, the UNCITRAL Secretariat charged five CISG experts from a variety of regions with the task of creating a digest of CISG case law. “The Digest and Beyond” includes the draft “UNCITRAL Digest”, even before it is released officially by UNCITRAL. It also goes where the authors of the Digest were not allowed to go, given the narrow mandate within which the drafters were asked to work. Its chapters build upon the work of the “UNCITRAL Digest”. The Digest describes the reasoning and results of existing CISG cases; in “The Digest and Beyond”, the Digest authors analyze those cases, and discuss issues that have not yet arisen in the case law. Thus, in many ways, “The Digest and Beyond” provides scholarship that can direct future cases in areas that have not yet been considered by courts and arbitrators as well as in areas in which contradictory court decisions exist.

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  CISG Rules on Exclusion and Derogation: Article 6

  Franco Ferrari

  The draft Digest comments on Article 6 CISG, not unlike those on other provisions, evidence both the Digest's usefulness and its weaknesses. The former is evidenced by the number of court decisions cited in the draft Digest—court decisions the retrieval of which would otherwise be difficult. Furthermore, the Digest is helpful as it organizes all decisions under appropriate headings, thus making research even easier. With respect to the draft Digest's weaknesses, it is worth mentioning that the most important one is closely related to the aforementioned strength: as the draft Digest cites most, if not all, the decisions that deal with a specific provision, there will be cases where contrasts in case law will emerge. Pursuant to a decision taken by the United Nations Commission on International Trade Law when authorizing the drafting of the Digest, it was not allowed to criticize any decision, not even when decisions are contradictory. Neither is the Digest allowed to point out those cases that are worth being followed. This means, however, that ultimately the draft Digest is not too helpful in guiding the interpreter through the labyrinth of case law which it makes readily available. If one were to look for a guide, one would therefore have to look elsewhere, for instance to comments by legal writers. This is true also in respect of those issues that—albeit linked to the provisions the Digest is concerned with—have not yet arisen in case law, as those matters, too, are beyond the Digest.

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  Interpretation of Statements: Article 8

  Franco Ferrari

  The draft Digest comments on Article 8, like those on other CISG provisions, show that even though the Digest is very useful in providing a means for interpreters to know what case law exists on specific issues, it is helpful only in a limited way. This is due to the restrictive guidelines, set by the United Nations Commission on International Trade Law in its thirty, fourth session. The guidelines require that the Digest not criticize any court's decisions, with the consequence that, where it lists contradicting views, it is not supposed to point in any particular direction. Of course, this means that the guidance it provides is limited. Furthermore, the Digest is supposed to refer merely to the issues dealt with in case law; it is not supposed to deal with other issues, even though they may be more important than those arising in existing cases. This is why it is necessary to go beyond the Digest, in the sense that it is important to take a position not only in those instances where there is contradictory case law, but also on those issues for which there is no case law at all. It is with this goal in mind that the draft Digest comments on interpretation will be dealt with. As the draft Digest itself points out, the CISG contains two provisions that refer to issues of interpretation, namely Articles 7 and 8. Whereas Article 7 concerns the interpretation (and gap,filling) of the Convention, which has often been the focus of legal scholars, Article 8 sets forth dispositive rules relating to the interpretation of any statement or conduct of a party. The rules of Article 8 seem to have been neglected by commentators, despite being rather important in practice. This paper will discuss those rules, the importance of which is evidenced by the number of cases that dealt with these rules and are cited in the draft Digest. Even though Article 7 lays down rules on the interpretation of the CISG designed to "promote its uniform application", Article 8 also assists in that goal by setting forth uniform rules (on the interpretation of statements and conduct) which prevent interpreters from resorting to domestic interpretive criteria. Indeed, invoking domestic interpretive criteria would be detrimental to the uniformity aimed at by the CISG, as such criteria vary from country to country. By laying down interpretive criteria, which, where applicable, prevail over any domestic interpretive rule (as pointed out by a German court cited in the draft Digest), Article 8 reduces the need to have recourse to non,uniform domestic rules, thus undoubtedly promoting uniformity.

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  Interpretation of the Convention and Gap-Filling: Article 7

  Franco Ferrari

  It is common knowledge that in order to create legal uniformity, it is insufficient merely to devise and enact uniform law instruments, because "even when outward uniformity is achieved..., uniform application of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably come to put different interpretations upon the same enacted words". In order to reduce the risk of diverging applications of a single text, that text must also be interpreted uniformly, since, as stated by Viscount Simonds on behalf of the House of Lords in Scruttons Ltd. v. Midland Silicones Ltd., "it would be deplorable if the nations should, after protracted negotiations, reach agreement ... and that their several courts should then disagree as to the meaning of what they appeared to agree upon". The drafters of the CISG (as well as those of many other uniform law conventions, such as the 1980 Rome Convention on the Law Applicable to national Factoring and International Financial Leasing), were aware of this problem, which is why they inserted Article 7 into the Convention. This provision is designed to help reach the uniformity they aimed at. The relevant part of the provision states that in interpreting the CISG "regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade". Article 7 is one of the CISG provisions most often addressed by commentators, since it deals not only with the interpretation of the CISG, but also with gap-filling.

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  Scope of Application: Articles 4-5

  Franco Ferrari

  Whereas Articles 1-3 (as well as Article 6) deal with the CISG's sphere of application, Articles 4 and 5 define the Convention's scope of application. In other words, whereas the former provisions determine whether the CISG applies at all, the latter ones determine to what extent it applies. From this, one can gather the importance of Articles 4 and 5. Although the CISG may be applicable, by limiting the CISG's scope of application, these two Articles may make it necessary to resort to domestic law, as the CISG may not deal with the specific substantive issue to be solved. It is therefore of paramount importance to determine exactly the CISG's scope of application. Case law may be helpful in doing so, which is where the Digest (in particular, the Digest parts relating to Articles 4 and 5) becomes relevant, as it provides what is supposed to be a complete list of existing cases on the issue. The following remarks will show, however, that for an exact determination of the CISG's scope of application, the draft Digest is only of limited help, for various reasons. There are instances where the court decisions that are acritically cited in the draft Digest are incorrect; there are other instances where the case law cited in the draft Digest is contradictory (contradictions the draft Digest does not attempt to solve); and, last but not least, there are issues the draft Digest does not refer to at all, since no cases dealing with those issues yet exist.

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  The CISG’s Sphere of Application: Articles 1-3 and 10,

  Franco Ferrari

  The CISG's provisions contained in Chapter I of Part I (relating to the "Sphere of Application") are without any doubt the Convention's most important provisions. Indeed, unless it has been decided on the basis of those provisions that the CISG applies at all, neither the Convention's substantive provisions, nor its provisions on interpretation (i. e. Articles 7 and 8), can be used to solve any dispute. This is why it is no surprise that the Convention's applicability has been dealt with in many state courts and arbitral tribunals, as can easily be evinced from a look at the draft Digest. Despite the large number of court decisions and arbitral awards concerning the issue at hand, there are many issues regarding the CISG's applicability that have not yet been touched upon in any decision. This chapter deals both with the issues to which the draft Digest refers, for which there is case law, and to those with which the draft Digest does not deal due to the lack of case law. In doing so, this paper will go beyond the draft Digest in two ways: on the one hand, it will criticize those court decisions that deserve criticism; on the other hand, it will examine issues that are not at all touched upon by the draft Digest. This way of proceeding is designed to guide the practitioners in a way the Digest cannot due to its limited scope. Before looking more closely into the issues relating to the Convention's applicability, it is necessary to focus briefly on a preliminary problem—very important in practice—that has to be solved before even examining whether the CISG's applicability requirements are met: the question of whether a court (of a Contracting State) has to resort to its private international law rules in order to determine the applicable substantive law or whether it has to have direct recourse to the Convention. This problem arises due to the fact that both the Convention's rules and private international law rules are specifically designed to deal with international (sales) disputes.

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  Trade Usage and Practices Established Between the Parties: Article 9

  Franco Ferrari

  Despite the importance of Article 9—it describes the extent to which trade usages and practices established between the parties are binding—it has seldom been referred to in case law, as evidenced by the limited number of court decisions cited in the draft Digest section dealing with this provision. Nor has it been frequently discussed in academic writing. Since the few existing cases have not dealt with all the issues which may arise in connection with trades usages and practices established between the parties, it is once again necessary to go beyond the Digest. This is true, however, not only with respect to the issues the draft Digest does not touch upon, but also with respect to those to which it refers by merely citing court decisions that in some cases contradict each other.

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  Writing Requirements: Articles 11-13

  Franco Ferrari

  As pointed out both by commentators and courts, Article 11 CISG, which is based on Article 15 ULIS and Article 3 ULF, establishes for the Convention the principle of freedom from form requirements, which is also found in many domestic legal systems. Thus, under the CISG a contract of sale need in general not be concluded in writing and is not subject to any other specific requirement as to form. This means that a contract can, as has been confirmed by various court decisions, be concluded orally as well as through the conduct of the parties. Article 11, furthermore, also pre-empts domestic rules that require a contract to be signed to bind the parties, a view apparently shared by a Swiss court which stated that a signature was not necessary because a sales contract is not subject to any requirement as to form.

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  State Action in Comparative Context: What if Parker v. Brown Were Italian?

  Eleanor M. Fox

  This is a moral tale. Europe, the hero of the tale, is not an unblemished hero; and the United States, the laggard, is not always the comparative laggard. The message, however, is not in the details. The message is: State action that harms competition and trade is a fraught problem. It implicates federalism, sovereignty, and the problem that Europe calls subsidiarity: if a task can be done as well at a lower level of government it should be done at the lower level. Conversely, if the multitude of lower-level actors (nations) have incentives to undermine the common good of the community, then responsibility is properly placed at a federal level. Moreover, in such case, the framework of enforcement must be such as to make state digressions from the common interest not “worth it” to the state. In the one (albeit narrow) situation that is the subject of this paper, Europe has gotten the governance problem “right;” it should follow its own lead in neighboring problems of anticompetitive state action. The United States, however, has given preference to state sovereignty over national governance, even though the converse route would increase national welfare. Even when a U.S. state violates duties, it is insulated from the most effective remedy—suit by the victims of its offense. The conclusion of the tale is: in matters of state action, the United States should learn from Europe. This does not mean that Americans should do just as the Europeans do. But it does mean that the United States should allow itself a more nuanced appreciation of the relationship between state sovereignty and the common good; it should take note when these interests converge and when they diverge; and in case of the latter, it should consider accommodations consistent with the U.S. system.

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  History, Politics and Judicial Independence

  Barry Friedman

  There is a long-standing debate, almost tedious in its familiarity, about the place of the judiciary in a constitutional democracy. On one side stands “independence.” Independence represents the aspiration to the rule of law, the notion that adjudication should remain—almost uniquely—separate from politics. On the other side stands “accountability.” Accountability represents the aspiration to self-governance, the sense that in a well-functioning democracy no institution should be beyond politics. The long-standing nature of the debate is puzzling, however, because it rests on a false dichotomy. If a democracy is well functioning, no institution is truly independent. Every institution remains accountable; every institution can be brought to heel. In some instances this can happen through ordinary legislation. In others it may require constitutional amendment. But rare is the instance in a constitutional democracy when an institution remains entirely beyond the ability of the people to change it. Judicial independence, then, necessarily is a product—at least in part—of forbearance. Force and money are strong allies, but judiciaries, in the now hackneyed phrase, lack both the purse and the sword. A judiciary possesses only voice, and voice alone is not going to be enough to protect a judiciary. Judiciaries are independent because we wish them to be. The pertinent questions concern why this forbearance arises, and how it is maintained. Both are important questions. The first is important because one point of the judiciary's vulnerability is at its conception. As the judiciary begins its work, it will acquire enemies. How do the roots of independence grow deep enough in early years to protect the judiciary from being toppled by those enemies? The second question is no less important. As the judiciary ages and its roots grow deep, the more isolated it might become from the politics that nurture and protect other institutions. Isolation increases the vulnerability of a judiciary to being toppled by the winds of popular passion. Relying on the tools of history and political economy, this paper studies the establishment and maintenance of judicial independence. Both are of deep interest around the globe. The focus here is on the judiciary of the United States, and particularly the national, or federal, judiciary. Although there are undoubtedly aspects of the United States' experience that are culturally or politically contingent, the argument here about the political economy of maintaining an “independent” judiciary is intended to have broader application. There is a lesson here, often overlooked, that it is more difficult to establish an independent judiciary than it is to maintain one. The forces that go into creating a relatively independent judiciary are complex and difficult to capture. But once it is up and running, the inertia of politics serves to protect the judiciary. The reason is a familiar one in the political economy of legislation: it is easier to prevent enactment of a bill than to get one enacted. Virtually every meaningful attack on the independence of the federal judiciary requires a legislative or super-legislative effort. Thus, ordinary politics may protect a judiciary that has obtained its independence. There is a corollary to this lesson, although it rests as much on intuition as clear experience. The more independent the judges will be from politics over time may bear upon how difficult it is to establish independence in the first place. To the extent a judiciary is granted great autonomy as a formal matter, there may be reluctance to accord it supremacy and the norms or customs of independence may not grow up around it. By the same token, if a judiciary is created such that formal mechanisms maintain the accountability of judges, then—paradoxically, perhaps—there may be a greater willingness to adhere to judicial decisions. After all, if the decisions are problematic over the long haul, there is a solution: change the judges. It is perhaps no accident then that many emerging democracies have decided not to emulate the life tenure of the United States' federal judiciary. The federal judiciary of the United States stands as a model of what institution-builders elsewhere often hope to achieve. Yet, by and large, they omit the one feature of the system—life tenure—that is often considered within the United States as the greatest protection of the independence of the federal judiciary. As will be apparent, there may be wisdom in this. Ultimately, what this paper makes clear is that politics can threaten a judiciary, but can protect it as well. Judicial institutions are never truly independent. They are within politics, but not of politics. And the politics that can crush judicial independence also can serve to nurture and safeguard it.

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  Crime Control and Social Order

  David W. Garland

  . . . Today's world of crime control and criminal justice was not brought into being by rising crime rates or by a loss of faith in penal welfarism, or at least not by these alone. These were proximate causes rather than the fundamental processes at work. It was created instead by a series of adaptive responses to the cultural and criminological conditions of late modernity—conditions which included new problems of crime and insecurity, and new attitudes towards the welfare state. But these responses did not occur outside of the political process, or in a political and cultural vacuum. On the contrary. They were deeply marked by the cultural formation that I have described as the “crime complex”; by the reactionary politics that have dominated Britain and America during the last twenty years; and by the new social relations that have grown up around the changing structures of work, welfare and market exchange in these two late modern societies. During the 1980s and the 1990s the political culture that articulated these social relations was quite different from that which had prevailed in the heyday of the welfare state. In its emphases if not in every respect, this culture was more exclusionary than solidaristic, more committed to social control than to social provision, and more attuned to the private freedoms of the market than the public freedoms of universal citizenship. The institutions of crime control and criminal justice have shifted in this same general direction. They have adjusted their policies, practices and representations in order to pursue the social objectives and invoke the cultural themes that now dominate in the political domain. The specific policies and practices that have emerged are adaptations to the world in which crime control now operates and to the practical predicaments that this world creates. As we have seen, these new practices typically emerge as local solutions to the immediate problems encountered by individuals and organizations as they go about their daily routines. But what they add up to is a process of institutional adaptation in which the whole field of crime control gradually adjusts its orientation and functioning. In terms of that bigger picture, the adjustments that have occurred are structural, and concern the relationship between crime control and social order. Over time, our practices of controlling crime and doing justice have had to adapt to an increasingly insecure economy that marginalizes substantial sections of the population; to a hedonistic consumer culture that combines extensive personal freedoms with relaxed social controls; to a pluralistic moral order that struggles to create trust relations between strangers who have little in common; to a “sovereign” state that is increasingly incapable of regulating a society of individuated citizens and differentiated social groups; and to chronically high crime rates that coexist with low levels of family cohesion and community solidarity. The risky, insecure character of today's social and economic relations is the social surface that gives rise to our newly emphatic, overreaching concern with control and to the urgency with which we segregate, fortify, and exclude. It is the background circumstance that prompts our obsessive attempts to monitor risky individuals, to isolate dangerous populations, and to impose situational controls on otherwise open and fluid settings. It is the source of the deep-seated anxieties that find expression in today's crime-conscious culture, in the commodification of security, and in a built environment designed to manage space and to separate people. I have described how the new crime control developments have “adapted” and “responded” to the late modern world, and to its political and cultural values. But these developments also, in their turn, play a role in creating that world, helping to constitute the meaning of late modernity. Crime control today does more than simply manage problems of crime and insecurity. It also institutionalizes a set of responses to these problems that are themselves consequential in their social impact. In America and Britain today, “late modernity” is lived—not just by offenders but by all of us—in a mode that is more than ever defined by institutions of policing, penality, and prevention. This desire for security, orderliness, and control, for the management of risk and the taming of chance is, to be sure, an underlying theme in any culture. But in Britain and America in recent decades that theme has become a more dominant one, with immediate consequences for those caught up in its repressive demands, and more diffuse, corrosive effects for the rest of us. Spatial controls, situational controls, managerial controls, system controls, social controls, self-controls—in one social realm after another, we now find the imposition of more intensive regimes of regulation, inspection and control and, in the process, our civic culture becomes increasingly less tolerant and inclusive, increasingly less capable of trust. After a long-term process of expanding individual freedom and relaxing social and cultural restraints, control is now being re-emphasized in every area of social life—with the singular and startling exception of the economy, from whose deregulated domain most of today's major risks routinely emerge.

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  Social Control

  David W. Garland

  The concept of social control is widely and variously used in the social sciences. In sociology and anthropology it is used as a generic term to describe the processes that help produce and maintain orderly social life. In the specialist field of criminology, it usually carries a narrower meaning, referring to the management of deviance by criminal justice, social welfare and mental health agencies. Sometimes the term takes on a critical sense, for example in social history and women’s studies, where the notion of social control has been used to describe the subtle constraints and forms of domination exercised by institutions such as the family or the welfare state. The expansiveness of the social control concept has meant that it has tended to work as an orienting device for thinkers and researchers, rather than as an explanatory tool of any refinement or precision. Sociologists in the early twentieth century developed the concept to explore the problem of social order in the industrialized, urbanized societies then emerging. Criminologists in the 1960s used the term to redirect attention away from an exclusive focus upon the individual criminal and to stress the role that social rules and reactions play in the process of criminalizing particular behaviours and persons. Social historians in the 1970s employed the notion of social control as a means of subverting and revising orthodox accounts of social reform that had tended to overlook the hidden class-control aspects of many reform programmes. Once such reorientations have been achieved, however, the concept of social control often ceases to be useful and gives way to more specific questions about the different forms, objectives, supports and effects of the control practices under scrutiny. Like many sociological concepts, social control is a subject of continuing contestation, either by those who deny the appropriateness of this approach to particular phenomena, or else by those who find the term insufficiently precise to do the analytical and critical work required. That the concept is also and inevitably tied into political debates—either as part of a conservative quest for social order, or else in support of a radical critique of social institutions—serves to deepen the controversy surrounding its use. So too does the semantic proximity of the term to cognate concepts such as socialization, regulation, domination, power and culture. Social scientists who use this concept are obliged to define it for their own purposes or else invite misunderstanding. Given this conceptual state of affairs, the most illuminating way of understanding the term is to summarize its intellectual history bearing in mind that contemporary usage draws upon many of these past conceptions, and often reinvents under a different name many of the ideas and distinctions that earlier writers first established. The classical social theorists of the nineteenth and early twentieth centuries—Comte, Marx, Durkheim, Weber, Simmel, etc.—did not employ the term social control, although their work certainly dealt with issues of social regulation, enforcement of norms and class domination that social control theorists were later to address. The concept was first explicitly developed by the sociologists of the early-twentieth-century USA, particularly E .A. Ross and W. G. Sumner, who sought to identify the myriad ways in which the group exerts its influence upon the conduct of the individual. Ross’s (1901) Social Control took as its starting-point the shift from small-scale, agrarian, face-to-face communities to dense, industrialized urban societies, and argued that this shift entailed a qualitative transformation in the bonds that made social order possible. Whereas the earlier Gemeinschaft communities had been held together by what Ross regarded as a ‘living tissue’ of natural controls such as sympathy, sociability and a shared sense of justice, social control in the newer Gesellschaft societies was a matter of ‘rivets and screws’ that had to be consciously created and maintained if order was to be achieved within these complex and conflictual social settings. Ross’s work catalogued and anatomized these foundations of order, dealing in turn with public opinion, law, belief, education, religion, art and social ceremony. In much the same way, Sumner’s (1906) Folkways described how usages, manners, customs and morals provided the basic underpinning of social regulation, upon which the more formal system of law was built.

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  Constraining Misuse of Funds from Intergovernmental Grants: A Legal Analysis

  Clayton P. Gillette

  Intergovernmental grants allow centralized governments to ensure that decentralized units have sufficient funds to make available a minimal level of a particular good to all constituents, or to induce decentralized governments (which I refer to as “localities”) to produce a greater level of public goods than they would produce if they employed only internally generated funds. (1984) distinguishes four reasons for making grants: (1) to encourage localities to take account of the external effects of their services; (2) to enforce grantor preferences; (3) to correct for fiscal imbalance between the various tiers of government (revenue sharing); and (4) for equalization. I refer to grants that satisfy any of these conditions as an “ideal” grant and to the requirements that the central government imposes for use of the grant and the ways in which the locality expends grant funds as the “terms” of the grant. Although grants are not costless, in that they require additional bureaucracies at both the central and decentralized levels, ideal grants promote either efficiency or distributional goals within a multi-tiered political system.

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  U.S. Civil Litigation and International Terrorism

  John Goldsmith and Ryan Goodman

  Since September 11, 2001, the United States has mobilized enormous military, political, and legal resources to combat the threat of terrorism. This paper examines one component of these efforts: civil suits in U.S. courts for acts of terrorism. We analyze current U.S. law governing civil actions against terrorists, consider the strengths and weaknesses of such actions, and propose alternative reforms. The paper proceeds in four parts. Part I describes the central pivot around which the doctrinal issues tum the problem of state action. Part II analyzes U.S. law governing civil litigation against alleged terrorists who do not implicate the Foreign Sovereign Immunities Act (“FSIA”). Part III analyzes U.S. law governing civil litigation against alleged terrorists who do implicate the FSIA. Part IV discusses the policy tradeoffs of civil actions against terrorists, considers the strengths and weaknesses of current law in light of these policy issues, and analyze several legal reforms.

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  Judicial Independence as Ambiguous Reality and Insidious Illusion

  Stephen Holmes

  There is no single proper model for the shape and function of the judiciary in a liberal—democratic society. The very different ways that common law and civil law systems structure relations between judges and prosecutors is just the most commonly discussed example of variation among recognizably liberal legal orders. Every known way to organize the recruitment, promotion, and disciplining of judges has its own peculiar pathologies and is susceptible to some form of serious abuse. The coexistence of multiple competing, and invariably flawed, models for the organization of a liberal—democratic judiciary does not pose an insurmountable obstacle to domestic reformers and international development agencies seeking to promote progressive legal change. A much more serious problem is the lack of any well-established consensus about proper criteria for evaluating judicial performance. What tasks should be assigned to a well-functioning liberal—democratic judiciary? And how can we determine if these tasks are being performed adequately or inadequately? Fifty years of experience with Technical Legal Assistance (TLA) has made painfully clear the elusiveness of simple criteria for evaluating successful legal reform. Most experts now agree, for instance, that improving the efficiency of courts (by providing more clerks, better-equipped bailiffs, better-trained court administrators, improved docket-management techniques, and so forth) has the paradoxical effect of swelling, rather than shrinking, case backlogs. This is true because of the elasticity of demand for law. That is to say, a “more efficient” courtroom will create an incentive for social actors to “judicialize” disputes that they would have otherwise tried to resolve extra-judicially. One reason we still lack clear criteria for evaluating efforts at legal reform, domestic or international, is that no agreement exists in the TLA community about the inherent value of judicializing disputes that could be resolved in a non-judicial manner. A current American example illustrates another reason why judicial performance is so difficult to evaluate, making it hard to reach consensus about the precise goals of judicial reform. The Freedom of Information Act now allows ordinary citizens of the United States to use the court system to force the government to disclose documents that had previously remained secret. This is a considerable enhancement of the power of the judiciary over executive-branch officials. The perverse and unexpected result has been that State Department operatives have increasingly come to conduct sensitive transactions with foreign governments without leaving a paper trail. This means that, when a new administration comes into office, it has a much more difficult time mastering the current state of government commitments to foreign powers. That such an enhancement of judicial power over the executive is not necessarily a benefit to democracy is the least that might be said. Basic disagreements about the goal of judicial reform also extend to the question of “judicial independence.” Part of the problem is that a judiciary in transitional countries can become formally independent while remaining informally dependent, as when housing, security, and medical care for judges hinges on discretionary spending by the Ministry of Justice or by some other branch of government, national or local. This mock independence, in fact, is rather typical in transitional societies, where a large premium is placed on a sham accommodation to liberal norms, appreciated by Western observers, which does not seriously infringe the government’s ability to harass rivals and critics using instruments of law. It should be noted, in this context, that covertly authoritarian regimes can easily allow 80%–90% of the judiciary to act in a genuinely independent fashion, deciding cases according to conscience with no instructions from the government. This is not a problem for an ostensibly reforming but residually autocratic regime, so long as the government retains the latent capacity to channel politically sensitive cases to a handful of “reliable” judges. Indeed, the self-advertised and perfectly sincere pride of the majority of judges in their genuine independence can provide a very effective cover for still-authoritarian regimes that nevertheless need to market themselves to international donor and lender organizations as well as to potential foreign investors.

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  Argentina—Ceramic Tiles Argentina—Definitive Anti-dumping Measures on Imports of Ceramic Floor Tiles from Italy

  Robert L. Howse and Damien J. Neven

  The WTO rules on dumping and anti-dumping reflect a political bargain, negotiated in the context of a fundamental normative dissensus as to whether dumping is a “wrong” practice and why. In the GATT, there is an apparently strong statement against dumping, which can be defined as the sale of a product in the country of importation at a lower price than in the country of exportation, or at below cost. Dumping, the GATT says, is to be “condemned.” However, this is immediately followed by the qualification “if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic injury”(Article VI.1: emphasis added). Even though dumping with these injurious effects is to be “condemned,” the GATT contracting parties obviously did not agree on making dumping illegal in the GATT. Thus, there is no prohibition on dumping in the GATT, however much it may be “condemned,” and no remedy available under Article XXIII against dumping. Instead, the GATT permits the unilateral imposition of anti-dumping duties against the dumped products, as long as these do not exceed the margin of dumping. It is extremely unclear, on any plausible normative theory of multi-lateral trade liberalization, why price discrimination of the kind “condemned” as dumping undermines the gains from bargained trade concessions. One sort of behavior that is covered by the idea of dumping is predatory pricing, where goods are priced so low as to drive domestic incumbents out of business, thus paving the way for the firm engaged in predation to become a monopolist. Standard economic accounts of anti-trust law consider predation to be welfare-reducing. However, the GATT bargain does not contain a requirement that Contracting Parties ensure that anti-trust rules apply to the behavior of their firms in world markets. This is simply not part of the kind of bargained cooperative equilibrium implied by the GATT, and therefore, even if dumping were a good surrogate for predation, which it is not, there would be no conceptual reason for condemning dumping. Theories have been advanced, for instance by Jorge Miranda that “dumping” may reflect other kinds of behavior inconsistent with the GATT cooperative equilibrium, such as the “exportation” of recession or cyclical economic decline to other States. In a recession it might make sense for a producer to sell above marginal cost but below average cost, in order to recoup as much of its fixed costs as possible in a situation of depressed demand. To the extent that such a strategy can capture a greater part of market share abroad, it could reduce demand for domestic products in those markets, and thus theoretically externalize some of the “costs” of recession. However, there is no consensus that such externalization is incompatible with the GATT cooperative equilibrium. To infer such incompatibility would be tantamount to inferring an implicit obligation on the part of Contracting Parties to adopt appropriate counter-cyclical policies, so as to avoid such externalization. However, the GATT clearly leaves the problem of negative externalities from inappropriate macroeconomic policies for the International Monetary Fund (IMF). Finally, one may understand the function of anti-dumping duties as that of providing some kind of limited reneging from bargained concessions in the face of economic and political pressures. It is arguable that without such a possibility for reneging, far fewer concessions would be made in negotiations, and that the pressures in question might even lead to the collapse of the whole bargain. In other words, there is nothing inherently wrong about dumping, but anti-dumping duties provide a necessary “safety valve”. While there is an explicit “safety valve” in the GATT, that of safeguards or emergency action, it is often viewed as having conditions attached to it that impede its functioning (such as the requirement of compensation, under many circumstances, as well as the application of the duties on a Most-Favored-Nation basis). Set against these controversies at the conceptual level about dumping and anti-dumping, the special legal rules that have evolved through the Tokyo Round Code and which are now reflected in the WTO Anti-Dumping Agreement pose particular problems for a treaty interpreter. Treaty provisions, the Vienna Convention on the Law of Treaties (VCLT) tells us, have to be interpreted in light of purpose and object (Article 31). Many WTO treaties balance multiple purposes, as the Appellate Body acknowledged with respect to the WTO Agreement on Sanitary and Phytosanitary Measures (SPS) in the EC-Hormones decision. However, if we take an Agreement like SPS, one can imagine a consensus among WTO Members that all of the purposes are legitimate if not important, including facilitating trade liberalization as well as allowing Members to protect the health of their citizens. There may be disagreement about how such goals should be balanced where they come into conflict in particular situations, but that is a different kind of disagreement.

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  Mexico—Corn Syrup Mexico—Anti-dumping Investigation of High Fructose Corn Syrup from the United States, Recourse to Article 21.5 of the DSU by the United States

  Robert L. Howse and Damien J. Neven

  The 21.5 AB ruling in Mexico—Corn Syrup arises out of a dispute between the United States and Mexico concerning whether the Mexican agency’s finding of material injury from dumping was consistent with the Anti-dumping Agreement. The original Panel 1 found that the agency’s determination of the existence of a threat of material injury to the domestic industry was made in violation of numerous provisions of the Anti-dumping Agreement. In light of these findings by the panel, the agency made a redetermination and the United States filed a 21.5 complaint, claiming that the redetermination failed to address adequately the defects identified by the original panel. The 21.5 Panel 2 agreed with the United States that an objective and unbiased agency could not infer the projected increase in imports asserted by the Mexican agency from the evidence on the record, and reached the same conclusion concerning the projections of the effects of these increases on the domestic industry. Here the issue was whether Mexico had analyzed various factors affecting demand for imports and the state of the domestic industry pursuant to Articles 3.4 and 3.7 of the Anti-dumping Agreement and whether the analysis, to the extent that it was done, would allow an objective and unbiased agency to come to the conclusion concerning threat of injury that the Mexican agency did come to. These aspects of the dispute engage the considerations in the interpretation of the Anti-dumping Agreement that we discuss in the introduction of our comment on Argentina—Ceramic Tiles, including, obviously, the standard of review prescribed in 17.6(i)–(ii) of the Anti-dumping Agreement. However, upon appeal, Mexico raised a number of other issues of a preliminary and procedural nature, including the impact on the panel proceedings of the US failure to engage in consultations, the meaning of the requirement in DSU 3.7 that a Member exercise self-restraint in bringing dispute settlement claims, and the requirement that the Panel give reasons for its conclusions that is contained in Article 12 of the DSU.

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  US—Shrimp United States—Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia

  Robert L. Howse and Damien J. Neven

  This study discusses the ruling of the Appellate Body (AB) in the recourse to Article 21.5 of the DSU by Malaysia in the context of the US import prohibition of certain shrimp and shrimp products from a legal and economic perspective. The first part of the chapter (section 2) discusses the background of the case, and, in particular, presents the main issues at stake in the Panel and AB decisions in the original case as well as their main findings. Section 3 discusses the key elements of the compliance panel and its subsequent appeal and identifies a few issues that are discussed in further detail. In section 4, in the context of a simple model, we first consider the consequences of making imports contingent on the adoption of environmental measures in exporting countries. We find that the attractiveness of such measures depends heavily on the characteristics of abatement technology and the range of policies available in the exporting countries. Finally, section 5 briefly discusses the trade-off between flexibility in the imposition of environmental standards and the enforcement of dispute settlements' rulings.

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  Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law

  Benedict Kingsbury

  Is there a normative (ethical) case for positivism in international law? This paper argues that there is, and that the vitality of mainstream positivist traditions in international law has been sustained by a deeply felt commitment to the ethical view that legal positivism provides the best means for international lawyers to promote realization of fundamental political and moral values. The paper will make this argument with particular reference to the positivist tradition associated with Lassa Oppenheim and embraced by many of his successors in the field. It will offer a reading of Oppenheim's writings that is consistent with this interpretation. This reading is proposed as one way to understand Oppenheim, but the aim is not to show that Oppenheim would necessarily have articulated his positions in the manner proposed here. The aim is instead to show that this positivist tradition is grounded in a normative justificatory claim that engages it with political questions, to suggest that the appeal and influence of this tradition has depended on it making such a claim, and to speculate that the implicit sense of making such a claim has been a reason for the appeal of Oppenheim's writings to subsequent generations of readers. Lassa Oppenheim (1858-1919) is a perplexing figure in the history of modern international law. He was respected by his contemporaries for his contributions as professor, jurisconsult and prudent scholar, and above all for his two-volume International Law (1905/1906). This work was immensely well received. The lasting qualities of its format and approach have led a series of eminent British international lawyers to keep it updated, so that its first volume in particular has enjoyed authoritative status over a full century. Yet his writings on international law strike many modern readers as theoretically shallow, and naively positivistic in placing great emphasis on the will of states and in seeking to exclude from international law not only the rights of all individuals and the rights of peoples outside the Euro-American system, but also most considerations of morality, policy and politics. The present paper argues that Oppenheim's separation of law and politics can be read as embedded in a more fundamental view of international law that is premised on his central political ideas, and that one of the most important of his political ideas is that legal positivism is normatively justified as being the best conception of law for the realization of higher normative goals relating to peace, order, certain forms of justice, and the legal control of violence. This paper considers just a sample of Oppenheim's political ideas in arguing that his international law œuvre should be read as advocating three political ideas which he believed were essential for international law: (I) an international society of states as a necessary condition for the existence of international law; (2) a balance of power between states as a requirement for durable international law; and (3) a commitment to legal positivism as a requisite for viable international law. Although Oppenheim's espousal of these ideas is embedded in a textbook that reads as a work of descriptive or analytic legal positivism, it will be argued that Oppenheim's advocacy of these ideas was normative. He did not regard international society, balance of power and positive international law simply as facts to be described and accommodated; he wished readers to embrace his understanding of these as political conditions for effective international law, and to join him in promoting the social and political acceptance—and thus the realization—of these ideas in order that international law could flourish and humanity might advance. The present paper thus seeks to lay a foundation for a modest contribution to the perennial problems of understanding international law as a distinct discipline and practice embedded in a particular politics, the background conditions and social interpretations of which are continuously changing. This foundation rests upon the simple paradox that the positivist separation of law from moral argument and from politics is itself a moral and political position. This point receives less consideration than it warrants within the Oppenheim tradition partly because major works in this tradition have been cautious about legal theory and about moral and political engagement, often confining such matters to short and stylized preliminaries. The result has been a widely held opinion that this positivist tradition neither makes nor could make a claim to ethical justification. It will be argued that the Oppenheim tradition can be better appreciated as one that makes significant political claims, and does so for normative reasons. Whether or not the particular reading of Oppenheim's own works proposed here is one he would have endorsed, it is suggested that some such understanding of them has implicitly informed and sustained this influential tradition. With this understanding of Oppenheim's project, it will be possible to assess more clearly the normative case for basing international law on political propositions of this sort, and to weigh this case against competing modern approaches that emphatically reject the positions ascribed here to Oppenheim. While few modem professional expositors of international law are content to base themselves on the set of basic positions here associated with Oppenheim, it will be suggested that the case for Oppenheim's apparently outmoded approach is more robust than it appears.

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  The Future of Constitutional Conflict in the European Union: Constitutional Supremacy After the Constitutional Treaty

  Mattias Kumm and Victor Ferreres Comella

  Forty years after the European Court of Justice (ECJ) declared the law of the European Communities (EU law) to be the supreme law of the land in Europe controversy over the relationship between EU law and national law remains alive. To be sure, there are important issues that have been settled. National courts in all Member States have accepted that EU law trumps national statutes, even statutes enacted later in time. This may not be surprising for jurisdictions such as the Netherlands, which constitutionally prescribe the primacy of international law over national law. It is more remarkable in jurisdictions such as Italy and Germany, generally committed to the proposition that the status of international treaties in domestic law is the same as that of parliamentary statutes (and that in case of conflict the norm enacted last in time prevails). It is a major constitutional transformation in a jurisdiction such as the UK where the principle of parliamentary sovereignty presented a formidable barrier. But even if EU law is deemed to have greater authority than treaties generally, many national courts resist the ECJ's view that EU law is the supreme law of the land. They have instead held that they can set aside EU law on constitutional grounds under certain circumstances. It should be noted, however, that these courts do not rely on a simple and straightforward rule of national constitutional supremacy. Even if they resist the unconditional supremacy of EU law, they act under a strong presumption that they should apply EU law in case of conflict. Whether and under what circumstances exactly national courts will set aside EU law varies across jurisdictions. Here it must suffice to offer a very schematic overview of the point of conflict between the ECJ and national courts. This provides the basis for a more informed assessment of how the “Treaty establishing a Constitution for Europe” (hereinafter Constitutional Treaty) is likely to impact on these conflicts. There are three lines of national constitutional resistance that define possible arenas of future conflict. The first concerns fundamental rights. This issue dates back to the 1970s and is today probably the least virulent of the three. The story is well rehearsed: Originally the German and Italian constitutional courts asserted that they had jurisdiction to review EU law on the grounds that it violated national constitutional guarantees. As the ECJ further developed its fundamental rights jurisprudence, the issue became less of a concern. The German Court backed off and recently confirmed that it would not exercise its jurisdiction to review EU law on grounds concerning national constitutional rights, for so long as equivalent protection was provided by the institutions of the EU. The Italian Court too has not seriously engaged in reviewing EU law. Though fundamental rights remain a residual ground for some national courts to refuse enforcement of EU law, the probability that an actual conflict between EU law and national constitutional law will arise in this area is very low. The second concerns the issue of ‘Kompetenz-Kompetenz’. This is an issue that is relatively new—it came up as a corollary to the debates concerning subsidiarity and the appropriation by the Treaty of Maastricht of the language of citizenship. If a piece of EU legislation is challenged on the ground that it was enacted ultra vires - that it was enacted beyond the competencies conferred on the EU—who gets to ultimately decide the issue? Who gets to ultimately police the jurisdictional boundaries between the national and the European polities? The German and Danish highest Courts in particular have claimed that they have the residual authority (based on national constitutional law) to determine whether EU legislative acts are enacted ultra vires. These courts realize that the ECJ has the jurisdiction under the Treaty to review the legality of EU acts, which includes the review of whether the enactments are within the EU's competencies. But the ECJ is itself an EU institution that can act ultra vires by attempting to amend the constitution under the guise of interpreting it. If the ECJ simply rubberstamps the EU's legislative acts as falling within the EU's competencies, then national courts have a constitutional duty to step in and render such laws inapplicable in their respective jurisdictions, so the argument goes. The third set of issues concern the possibility of conflict between EU law and certain specific provisions of national Constitutions. Such conflicts have become increasingly frequent ever since the Treaty of Maastricht. Some of these cases concern conflicts between EU primary law and national constitutional law. The Maastricht Treaty, for example, establishing a right of EU citizens to vote and stand for elections in municipal elections anywhere in the EU collided with a Spanish constitutional provision specifically limiting to Spanish citizens the right to stand for elections. Such conflicts tend to be resolved in the context of the ratification of the Treaty: the issue is brought before the constitutional court and the necessary constitutional amendments are initiated by the respective political actors (or the Treaty is not ratified). (In Spain, for instance, article 13 of the Constitution was amended to make ratification of the Maastricht Treaty possible). More problematic are cases involving secondary EU law conflicting with specific national constitutional provisions. Examples include EU law requiring the opening up of the armed forces to women to a greater extent than the national constitution allows (such a conflict was resolved in Germany by amending the national constitution); or EU law requiring the recognition of certain degrees issued by private universities, whereas the national constitution prohibits the recognition of any but public institutions in its jurisdiction (this conflict was resolved by Greek courts by simply reading such a requirement out of EU law, ECJ precedent to the contrary notwithstanding}.

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  Choice in Dying: A Political and Constitutional Context

  Sylvia A. Law

  This chapter seeks to place in historic perspective the current movement for compassion and patient choice at the end of life. While legal principles are important, the complex factors that shape individual consciousness, human relations, and social movement are also critical. Since 1990 a vibrant movement for patient choice at the end of life has emerged in the United States. Two important developments promote this movement: first, advances in medicine and technology; second, the ongoing struggles for civil rights, respect, and choice on the part of racial minorities, women, gay people, and people with disabilities.

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  Pilpel, Harriet Fleischl

  Sylvia A. Law

  Pilpel, Harriet Fleischl. December 2, 1911-April 23, 1991. Lawyer, women's reproductive rights advocate, civil libertarian. Harriet Fleischl was born in New York City, the eldest of three daughters of Ethel Loewy and Julius Fleischl. Both her parents were born in the United States. Her paternal grandfather had emigrated from Prussia at age fifteen and later founded Emil Fleischl & Sons, a wholesale dairy that sold eggs and dairy products to restaurants, hotels, and retail stores. Harriet's father worked there; her mother, who graduated from normal school, worked for a time as a teacher. While still in Evander Childs High School, Harriet determined the two values central to her identity: the power to decide for herself whether and when to have children, and the freedom to speak her mind. She was on the high school debate team and throughout her life was an effective public speaker. When she graduated in 1928, her yearbook picture was captioned “A Budding Portia.” She enrolled at Vassar College, where she received a bachelor's degree in 1932. She continued her studies at Columbia University, first taking a master's degree in international relations and public law in 1933, followed by a law degree in 1936. At Columbia, she was selected as articles editor for the prestigious Columbia Law Review and graduated near the top of her class.

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  The Evolving Language of Diversity and Integration in Discussions of Affirmative Action from Bakke to Grutter

  Jeffrey S. Lehman

  In December 1997, Barbara Grutter brought a lawsuit challenging the constitutionality of the University of Michigan Law School’s admissions policy. In June 2003 the United States Supreme Court issued its opinion in Grutter v. Bollinger, definitively rejecting that challenge. I served as dean of the Law School throughout the five-and-one-half-year litigation, and my role gave me many opportunities to reflect on the different factors that have made affirmative action such a difficult issue. As one of the university’s public representatives throughout the litigation, I was often called upon to speak and write about the case. It was important to me that I be able to speak consistently—describing the issues in the same terms, regardless of whether my immediate audience was supportive or critical of our admissions policy. It was important that I be able to speak consistently with our published admissions policy. It was important that I be able to speak consistently with our court submissions. And it was important that I be able to speak in a way that I felt authentically captured the complexities of the issues. As I returned to the topic again and again, I found this to be an exceptionally challenging exercise. What made the topic so difficult was the way in which Justice Powell’s opinion in Bakke had restricted the terrain on which university officials could address affirmative action. A language that speaks only about the “educational benefits of diversity” offers an incomplete vocabulary for talking and thinking about race and higher education. Over the duration of the lawsuit, therefore, I heard my own voice evolve. Most Americans resonate with the ideal of color blindness—that public and private institutions, and even individuals, should not allow their conduct toward a person to be influenced by that person’s race or ethnicity. That ideal has found expression in many corners of our society, most notably in the legal doctrine that has interpreted the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Under that doctrine, departures from color blindness are not necessarily unlawful, but (to use the legal terms of art) they are always “suspect”; they demand justification in the form of a “compelling interest.” As I worked alongside many others to explain why, in the context of university admissions, carefully crafted departures from the ideal of color blindness can be both lawful and appropriate, I found myself referring more and more to an ideal that seems today to carry more resonance with most Americans than the pedagogic notion of diversity. More and more, I invoked the vocabulary of integration. The word diversity can feel somewhat one-dimensional, connoting only a property of racial heterogeneity that may or may not exist in a particular place at a particular moment in time. At least today, the word integration does a better job of capturing the special importance to our country of undoing the damaging legacy of laws and norms that artificially separated citizens from one another on the basis of race. The enduring scars left by that history pose the greatest practical challenge to our nation’s prosperity and, for many, to its democratic legitimacy. A close reading of the Supreme Court’s opinion upholding our admissions policy reveals that, over the span of twenty-five years from Bakke to Grutter, the Court underwent a similar evolution. Justice Powell’s opinion in Bakke was succeeded by an opinion for the Court that drew on a more satisfying, weightier justification for universities’ departure from color blindness. The “compelling interest” is about more than just pedagogy. It is about the fundamental legitimacy of America’s approach to distributing educational opportunity. In this essay, I will trace the parallel evolutions of the vocabulary of Supreme Court doctrine and my own discussions of affirmative action in my role as a law school dean. I will begin with Justice Powell’s opinion in Bakke and end with Justice O’Connor’s opinion in Grutter. In between, I will discuss the admissions policy adopted by the University of Michigan Law School in 1992 that became the subject of the litigation and then reflect on several of my own public statements over the course of the litigation. I will suggest that the overall movement in vocabulary over the course of the litigation—from diversity to integration, pedagogy to democratic legitimacy—is a healthy movement for constitutional doctrine, higher education, and public discussions of race and ethnicity.

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  Turning our Backs on the New Deal: The End of Welfare in 1996

  Jeffrey S. Lehman and Sheldon Danziger

  This chapter focuses on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), characterized as a regressive step that compromises the basic right of a safety net because employment opportunities are not available to most welfare recipients. The chapter focuses the changes brought about by PRWORA and the economic context and welfare reform. PRWORA totally abolished Aid to Families with Dependent Children (AFDC), replacing it with a system of block grants to state governments.