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  The Control of Police Misconduct in the Americas

  Paul G. Chevigny

  “A woman is arrested by two members of the vice squad. She was charged with the offense of offering to commit prostitution with an unknown man for the sum of fifteen dollars. Her social and financial status is such as to render the charge utterly incredible. After effecting an entrance into her apartment, the police officers question her about her finances and assets for about forty-five minutes before taking her to the police station. . . . She is taken to the . . . Police Station and is there prevented from using the telephone until after she makes an arrangement with one John Steiner, a professional bondsman, for her release on bail. Before he consents to go on her bond, Steiner relieves her of her jewelry and takes it out to have it appraised. After the necessary arrangements for releasing the woman on bail have been completed, Steiner . . . states: ‘We fix these cases up all the time. No matter how innocent you are, you are going to get yourself in a jam and they might jail you because they all work hand in hand and they (the magistrates) will take their word.’ . . . On the day of the trial she is again called for by [the bondsman], who takes her to court, informing her on the way ‘It is going to be fixed and don't worry. Everything will be fixed. . . . Now don't you get excited and say anything.’ . . . At no time was she informed that she would be represented by an attorney, but when she arrived at the Court House and her case was called for trial, there was a man present who asked the policeman questions after the District Attorney had finished his direct examination. . . . All she knows is that all persons concerned were very insistent upon her maintaining silence and that at the conclusion of the officer's testimony she was told that she could go home. . . . The Deputy Assistant District Attorney . . . testified that after the conclusion of the case, he received a sum of money from the defense attorney.” (From Samuel Seabury, In the Matter of the Investigation of the Departments of the Government of the City of New York [Seabury Report, 1932] in Chin 1997, vol. 3, 21-23). The case quoted above occurred in Manhattan some 70 years ago. The then-governor of New York, Franklin Roosevelt, together with the judges of the appeals courts, had appointed Judge Samuel Seabury in 1930 to investigate corruption in the lowest criminal courts in New York. Judge Seabury discovered a conspiracy to pervert justice among judges, lawyers, bail bondsmen, politicians, and police as well as underworld figures; he exposed it, using this case as one example of many, in his report of 1932, one of six such reports about police scandals that occurred in New York City about every 20 years in the century from 1894 to 1994. Judge Seabury's investigation and report was the most successful of the six, even though he made few recommendations specifically about the police. He recommended instead that the lower courts be completely reorganized, with new judges appointed, that the bail system be reformed, and that indigent defendants be defended in an organized way rather than by “hangers-on” at the courts. The political situation was such that the existing lower courts were completely discredited, and the governor and superior judges were actually able to push through these reforms. The result was that the system of fixing cases in the courts largely passed away, and the practice of beating and coercing suspects to extract confessions entered a long process, over the next 30 years, toward near-extinction. The experience of the Seabury investigation shows that police abuses of suspects may take the form of false charges or of brutality, or both, and these may be connected to acts of corruption by the police. The most important point to take from Judge Seabury's report, however, is that police abuses are virtually impossible to control if the criminal justice system as a whole tolerates or encourages them. If the prosecutor and the judge expect to take bribes and to overlook police brutality, then they rely on the police to participate, and it is sheer hypocrisy to focus criticism on the police. Conversely, if the criminal justice system sets its face against police abuses—if, for example, the courts try consistently to exclude coerced confessions—then the incidence of such abuses is going to drop. Although the reforms after the Seabury investigation enormously improved the criminal justice system in New York City, the police misconduct that was part of the pattern has not passed away. Police brutality and corruption persist in New York and other cities in the United States, just as they do elsewhere in the Americas. One reason for the persistence is that city dwellers, as well as politicians, are not altogether sure that the abuses are a bad thing. It is important to come to grips with this political ambivalence about police abuses. We must see clearly the problems that police abuses create, for citizen security as well as for the consolidation of democracy, if we are to talk of control. This chapter will briefly consider, in the next section, the connection between corruption and violence and the citizens' sense of security. Following that, the chapter will survey the options available in the Americas for the control of police violence, considering in turn the functions and duties of the central government as a whole, then focusing on the legislature, the courts, and, most extensively, systems of oversight and discipline. In this last connection, the chapter will take up criminal and civil liability of police personnel and/or the state for police abuses, as well as problems of administrative regulation, either within the police institution itself or from government institutions outside the police. Finally, the chapter will briefly discuss controls through international institutions.

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  Commentary on 'Enron and the Long Shadow of Stat. 13 Eliz.': Does the Proper Domain of Fraudulent Conveyance Law Include Deceptive but Fair Transactions?

  Kevin E. Davis and Mariana Prado

  The Enron debacle has led many commentators to denounce the American corporate governance regime as an expensive anachronism, chronically incapable of keeping pace with the innovations of sophisticated financiers intent upon gaming the system. Douglas Baird’s contribution to this collection bucks that trend. He argues that whatever the failings of other components of the legal system, ancient principles traditionally embodied in the law of fraudulent conveyances can be relied upon to provide creditors with proper recourse against the players who connived with Enron to swindle them out of their money. In its traditional form, the law of fraudulent conveyances allows a court to set aside transfers made or obligations incurred by a debtor with the intent to ‘delay, hinder or defraud’ creditors. Most fraudulent conveyances involve transfers at an undervalue, that is to say, transactions in which the debtor receives less than the full value of the property that it has transferred or the obligations it has incurred. However, Professor Baird emphasises the potential breadth of fraudulent conveyance law, noting that in its original form—which has been retained in some jurisdictions—a fraudulent conveyance did not necessarily involve a transaction at an undervalue. He argues that in addition to transactions at an undervalue, fraudulent conveyance law can and should encompass transactions between closely related parties that have no legitimate business justification other than to make it difficult for creditors to understand a debtor’s affairs, even if the debtor receives fair value throughout. Professor Baird suggests that it would be not only possible but also positively desirable for the New York bankruptcy court seized with Enron’s chapter 11 proceeding to adopt this expansive definition of a fraudulent conveyance. I am not inclined to challenge Professor Baird’s interpretation of New York law, but I am inclined to challenge his endorsement of the expansive definition of a fraudulent conveyance.

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  Women, Bondage, and the Reconstructed Constitution

  Peggy C. Davis

  I have been working for more than ten years to promote the idea of a Reconstructed Constitution: an Antislavery Constitution. It is odd that the idea of a reconstructed, antislavery constitution needs a promoter. We all know that the Constitution of the United States was amended during Reconstruction and amended in transformative ways. Universal citizenship was established; the federal government became guarantor of fundamental civil rights; slavery was forbidden; and the rights of free people were specified. It is a short step from these truths to say that the constitution was reconstructed according to the values of antislavery: Every human being on United States soil was recognized as holding the rights—always tempered by social duties—to be self-defining, morally autonomous, and active in the construction of social meaning. Still, the late-nineteenth-century repudiation of Reconstruction took in its wake respect for the values upon which this nation was rebuilt after the Civil War. The people— most of whom were African American or female (or both)—who struggled successfully to constitutionalize antislavery interpretations of citizenship and human rights were erased from constitutional history, and the idea—and the ideals—of a reconstructed, antislavery constitution were lost to our national consciousness. If we value the idea—and the ideals—we must revive them. My project here is an aspect of my broader project. It is to recall, and perhaps to revive, an African American feminist coalition that was vibrant during the antislavery years. It was a coalition grounded in a common respect for human dignity and human rights. It consisted of antislavery activists working to draw out, and enact in their own lives, the principles that underlay their opposition to enslavement. I refer to these principles as antislavery principles, but the phrase should be understood to encompass opposition to subordination in many forms and on many grounds. Especially on grounds of race and gender.

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  Fundamental Rights and Citizenship

  Gráinne de Búrca

  The study draws attention to some of the political constraints and implications that should be heeded by those drafting the future European Constitution. The study of 220 pages focuses on 10 selected constitutional reform themes: the preamble, fundamental rights and citizenship, competence, institutions and judiciary bodies, institutions of the enlarged Union, simplification of the Union’s instruments, external relations, freedom, security and justice, flexibility in a reorganised and simplified treaty, entry into force and revision. The ‘Ten Reflections’ take the form of short essays on each of the themes with specific recommendations and drafting proposals for articles of a constitutional treaty.

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  Sovereignty and the Supremacy Doctrine of the European Court of Justice

  Gráinne de Búrca

  This short contribution was prompted by a question which arose during a seminar on the subject of the supremacy of EC law, concerning whether the terms ‘supremacy of EC law’ and ’sovereignty of the EC’ refer to the same concept. There was some confusion on the matter, and the purpose of this brief contribution is to examine the relationship between these two terms. As this book demonstrates, sovereignty is a fundamental but complex notion which has been defined in many different ways and in many different contexts. This chapter focuses primarily on the conceptual definition of ultimate, self-defining legal authority but also draws occasionally on the political sense of actual authority and control. The supremacy doctrine of the European Court of Justice—the power and originality of which is almost dulled now by the familiarity of the famous judicial passages—will be examined with two questions in mind. The first is whether the supremacy doctrine necessarily entails or presupposes a claim to sovereignty on behalf of the EC (and more problematically, but less likely, of the EU), and the second is whether it necessarily presupposes a claim of abandonment or loss of sovereignty on the part of the Member States. The plausibility of those claims will be considered primarily by reference to a legal-conceptual understanding of the notion of sovereignty, and to a lesser extent in the light of a more political or practical understanding of the notion.

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  The European Court of Justice and the Evolution of EU Law

  Gráinne de Búrca

  Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.

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  Varying the Course in Patenting Genetic Material: A Counter-Proposal to Richard Epstein's Steady Course

  Rochelle C. Dreyfuss

  Richard Epstein's “Steady the Course: Property Rights in Genetic Material” makes a case for an all-or-nothing approach to patent protection for the fruits of biotechnology research, a case that rejects initiatives that would “tweak” the system to assure the availability of biomedical advances for use in basic research. Epstein believes that we have stumbled into the best of all possible worlds and should instead stay, as his title suggests, on a steady course. Reading his paper makes one wonder why the literature questioning aspects of genomic patenting and proposing the sorts of interventions that he rejects—compulsory licensing, experimental use defenses, condemnation proceedings—is growing so large so fast. I suggest that the disparity between Epstein's claim and what others working in the biotechnology field see arises from a disagreement on four underlying assumptions. I would like to explore these assumptions, which center around the nature of the patentee, the patent, the licensing relationship, and the goals of patent law. I end with a counter-proposal for protecting the public domain of science, which is intended to deal with some of the problems that I believe Epstein to be justified in raising.

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  In and Out of Public Solution: The Hidden Perils of Forced and Unforced Property Transfer

  Richard A. Epstein

  The institution of property is as old as mankind, and property rights are today deemed vital to a prosperous economic system. Much has been written in the last decade on the economics of the legal institutions protecting such rights. This unprecedented book provides a magnificent introduction to the subject. Terry Anderson and Fred McChesney have gathered twelve leading thinkers to explore how property rights arise, and how they bolster economic development. As the subtitle indicates, the book examines as well how controversies over valuable property rights are resolved: by agreement, by violence, or by law. The essays begin by surveying the approaches to property taken by early political economists and move to colorful applications of property rights theory concerning the Wild West, the Amazon, endangered species, and the broadcast spectrum. These examples illustrate the process of defining and defending property rights, and demonstrate what difference property rights make. The book then considers a number of topics raised by private property rights, analytically complex topics concerning pollution externalities, government taking of property, and land use management policies such as zoning. Overall, the book is intended as an introduction to the economics and law of property rights. It is divided into six parts, with each featuring an introduction by the editors that integrates prior chapters and material in coming chapters. In the end, the book provides a fresh, comprehensive overview of an intriguing subject, accessible to anyone with a minimal background in economics. With chapters written by noted experts on the subject, Property Rights offers the first primer on the subject ever produced. In addition to the editors, the contributors are Louise De Alessi, Yoram Barzel, Harold Demsetz, Thr inn Eggertsson, Richard A. Epstein, William A. Fischel, David D. Haddock, Peter J. Hill, Gary D. Libecap, Dean Lueck, Edwin G. West, and Bruce Yandle.

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  Steady the Course: Property Rights in Genetic Material

  Richard A. Epstein

  Few issues today seem to generate more passion than the question of property rights in the human genome. The entire topic has become enmeshed in a multi-front war that takes place in successively narrower theaters. The battle begins with broad questions about attitudes that one has to property rights, writ large, whether it be in human beings, body parts, tissues, cells, or molecules. Do we think that these elements, or some large portion of them, are, by nature, inappropriate candidates for reduction to private ownership? For those—and there are many—who think that it is immoral or worse to reduce living substances to private ownership, the debate is over. But for those who find these moral objections either insufficient or misplaced, negotiating this initial hurdle requires that others be surmounted as well. Within the traditional economic framework, is the case made for creating private forms of property when “the commons” is useful for delivering at least some kinds of goods and services? That question, in turn, quickly leads to a discussion that is more focused on matters associated more generally with intellectual property law and patent law in particular. The first inquiry asks: Why it is appropriate for the law to adopt a system of patent protection instead of some other form of intellectual property protection, such as copyright or trade secrets? Or more generally, why the use of private property systems at all, as opposed to state systems of bounties for the production and dissemination of this information? But once it is assumed that patent protection counts as the dominant alternative, we must ask how the protection of the genome in its many phases comports with the broader objectives of the patent law on the one hand, and the particular doctrinal requirements of current patent law on the other. Let me state my conclusions quickly at the outset. I am not persuaded by categorical objections to creating property rights in human or other living substances. But once that question is left behind, we do have to face hard questions about the structure of property relations. For that question, I favor all-or-nothing solutions. There are some human and genetic substances that should be left in the public domain, and there are many that should be governed by the ordinary regime of patent protection, with some marginal adjustments for the distinctive problems of dealing with genetic substances and the biochemical agents used to treat them. I am suspicious of programs that seek to tweak the system with a variety of complex arrangements that rely on subsidies, tax breaks, rewards, honors, and, most notably, compulsory licensing to outperform this simpler set of rules. This position leaves a number of important degrees of freedom. All-or-nothing solutions can be altered by varying the length of the patent term or the scope of the patent. They can hold that a patent applies with respect to some uses, e.g., commercialization, but not with respect to others, e.g., basic research conducted on a not-for-profit basis. The argument here is not meant to bias the shift between private and public domain property and strongly endorses the traditional practice of treating the inventions contained in expired patents to fall into the public domain. So much for what the all-or-nothing approach does. But what it does not do is welcome those clever schemes designed to split the difference by weakening the normal rights of exclusion attendant on property rights and subjecting them to either schemes of government condemnation on the one hand, or compulsory licensing schemes on the other. It is tempting to think that the problems of monopoly inherent in any scheme of patent protection could be addressed by some system of forced exchanges, such as those that are involved under the law of eminent domain. But they will not work in this area. There is no coherent scheme to decide which patents should be condemned, or how the government should deal with them once condemnation has taken place. Nor do we have the enormous institutional capabilities to make all patent holders into public utilities who are obliged to do business with all comers under prices that are established and administered by the state. The current system is imperfect on any number of points. It is easy to find examples where current institutions lead to unhappy results. It is surely possible to envision intelligent forms of tinkering about the edges of established doctrine. There is a real question, for example, about the optimal scope of a patent. But the current legal structure, whatever its shortcomings, has fueled the enormous surge in biotechnology in the past generation. It is best to leave well enough alone. The all-or-nothing solutions—either its private property or in the public domain—dominate any and all efforts to carve out some elegant but inoperable middle position. The creation of a property rights system in genetic substances is part and parcel of this general debate. In order to place some order on the discussion, the chapter proceeds as follows: Section 1 addresses the moral arguments against property rights in human materials; Section 2 addresses the choices between common and private property; Section 3 addresses the various schemes for forced reassignment of property rights, first by condemnation and then by compulsory licensing; Section 4 addresses the issue in connection with genetic material. It concludes first that all expressed sequence tags (ESTs) should be left in the public domain, and second that the usual rules of patent protection work about as well as can be expected for most genomic products. We should not let the best become the enemy of the good.

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  A Competitive Market for Workplace Representation Services

  Samuel Estreicher

  Our labor laws as currently structured do a poor job of establishing a competitive market for representation at the workplace. A “one size fits all” model, only nonprofit, democratic membership organizations may vie for representational authority. Once a union obtains such authority, it is very difficult for represented employees to vote out the incumbent and bring in alternative representatives. This is in part because the law allows only a limited window period for decertification petitions and such petitions must be supported by at least 30 percent of the unit. Collective action of this type is exceedingly difficult to effect. This article proposes a new approach to help bolster competitive forces in the marketplace for representation services.

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  Madisonian Separation of Powers

  John A. Ferejohn

  Madison's ideas about separation of powers and checks and balances are often located in a collection of specific texts, written during the period of the Founding. And, of course, he did have particular ideas about how the powers of the new national government ought to be allocated. But it is a mistake to take these ideas as his last word on the subject. In this essay I shall argue that what we might call Madisonian separation of powers ought not to be understood as a fixed set of institutions or rules for allocating authority among the departments of the new government. Rather, it is best seen as an attempt to set in place a set of normative and institutional processes that would permit rearranging departmental powers in light of experience. His initial ideas—those found in his Federalist essays for example—are best seen as provisional or experimental attempts to establish a new republican government, based on the best knowledge available at the time. As experience with these new institutions grew, he expected that adjustments would need to be made, but such adjustments would need to be consistent with the underlying principle of the Constitution: popular sovereignty.

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  CISG and Private International Law

  Franco Ferrari

  The trend towards the unification of international commercial law is one of the most charateristic features of the law of the second half of the twentieth century. The sheer numbers of the international uniform commercial law instruments elaborated to this end bear witness to this development. Against this backdrop, the Faculty of Law of Verona University hosted a Conference from 17 to 19 April 2003 to discuss what is considered the most important and successful uniform commercial law instrument, namely the 1980 UN Convention on Contracts for the International Sale of Goods (CISG). On that occasion, some of the most famous CISG experts and scholars such as Filip De Ly, Franco Ferrari, Harry Flechtner, Rolf Herber, Alain Levasseur, Joseph Lookofsky, Ulrich Magnus, Anna Veneziano, Claude Witz, meet to examine issues dear both to practitioners and scholars. In doing so, the speakers all took into account recent experiences, such as the emergence of case law and the revision of domestic legislation in the area of sales law. This book contains the proceedings of the Verona Conference, aimed at highlighting the CISGís impact not only on courts, but also on legislators, international and domestic alike.

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  CISG Case Law: A New Challenge for Interpreters?

  Franco Ferrari

  This volume contains essays by prominent commentators on topics in commercial law. It addresses the increasing harmonization of international commercial law and the essays demonstrate different methodologies used in analysing commercial law, such as economic and jurisprudential approaches. It is common knowledge that in order to create legal uniformity it is insufficient to merely create and enact uniform laws or uniform law conventions 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 this danger of diverging interpretations by courts of different countries, the drafters of the United Nations Convention on Contracts for the International Sale of Goods (CISG) included Article 7(1) which states that when interpreting the CISG "regard is to be had to its international character and to the need to promote uniformity in its application." Drafters of other uniform law conventions have taken a similar approach to the concern about conflicting interpretations. As many legal writers have pointed out, this means, above all, that one should not read the Convention through the lenses of domestic law, but rather in an autonomous manner. Thus, when interpreting the CISG one should not resort to the meaning generally attached to certain expressions within the ambit of a particular legal system.

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  Evolving Toward What? The Development of International Antitrust

  Harry First

  The antitrust world was about to change in 1982, but we did not realize it. The occasion was a trip that William Baxter, then head of the Department of Justice Antitrust Division, made to Paris, during which he met with the head of the EC's Directorate-General for Competition. The reason for the meeting was a potential conflict between Europe and the United States with regard to the European Commission's pending investigation of IBM. Baxter had just dismissed the Justice Department's long-running monopolization litigation against IBM, viewing the case as being without merit and rejecting the imposition of any antitrust relief at all. His concern was that the Commission might order IBM to disclose computer interface specifications, a remedy that Baxter thought unwarranted. The IBM case showed where antitrust was heading. Computers and telecommunications links were soon to make the world more connected. IBM was an important global competitor, in the United States, in Europe, and in Japan, but the U.S. Department of Justice could no longer presume that it could control the antitrust environment in which U.S. business operated. Not only did the European Commission have a different view of antitrust law than did the United States at the time, but it was increasingly willing to assert that view to enforce antitrust law in ways that the United States might not. As Baxter said, “IBM operates in their markets, and they are entitled to have such substantive rules about competition as seem appropriate to them. And if they could localize the effects of what they do, I would regard that as a matter of appropriate sovereign action. But they can't localize the effects of these remedies. They are worldwide, and they are very damaging.” Antitrust was internationalizing. IBM may have shown where the antitrust world was heading, but we still do not know where it will end up. What we see today is a great deal of ferment, with various strands of substantive antitrust law intertwining in an effort to craft new institutional approaches to international antitrust, approaches that deal not only with possible conflicts but also with possible ways to improve the effectiveness of international antitrust enforcement. Today's ferment may seem somewhat chaotic, but that is not necessarily a bad characteristic. Indeed, efficient rules and institutions may very well emerge out of this chaos. As the institutions of international antitrust enforcement take shape, a critical question will be the extent to which these institutions should be centralized. My overall view is that for a system of antitrust enforcement to remain dynamic, overcentralization must be avoided and some degree of chaos tolerated. Preferable to centralization would be a common law of international antitrust, with rules subject to reasoned analysis and with diverse institutions of antitrust enforcement to provide different enforcement perspectives. The paper proceeds as follows. The first part (II) attempts to map the current institutions of antitrust enforcement. The second part (III) describes recent efforts to put together new international antitrust enforcement networks. The third part (IV) discusses the evolving system of international enforcement against international cartels. The conclusion makes a modest prediction: the greatest problem for future international enforcement will likely be its very success.

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  Governmentality' and the Problem of Crime: Foucault, Criminology, Sociology

  David W. Garland

  [. . . ] At a time when criminologists are trying to come to terms with a reconfigured criminological field, the governmentality literature offers a powerful framework for analysing how crime is problematized and controlled. It is focused upon the present, and particularly upon the shift from ‘welfarist’ to ‘neo-liberal’ politics. It avoids reductionist or totalizing analyses, encouraging instead an open-ended, positive account of practices of governance in specific fields. It aims to anatomize contemporary practices, revealing the ways in which their modes of exercising power depend upon specific ways of thinking (rationalities) and specific ways of acting (technologies) as well as upon specific ways of ‘subjectifying’ individuals and governing populations. It also problematizes these practices by subjecting them to a ‘genealogical’ analysis—a tracing of their historical lineages that aims to undermine their 'naturalness' and open up a space for alternative possibilities. [. . .] The governmentality literature does not offer a general thesis that can be ‘applied’ to the field of crime control. Nor does it provide a unified account of the present—such as ‘postmodernity’ or ‘risk society’—under which can be subsumed the facts of criminal policy or the developmental tendencies of the criminal justice system. It does, however, isolate a series of objects of analysis, and suggest certain lines of enquiry that strike me as having great potential for researching and interpreting current developments in this field. Pat O'Malley (1996) and Kevin Stenson (1993) have already suggested ways in which crime prevention and community policing can be illuminated by reference to this framework, and O'Malley's claim that neo-liberal social policy is increasingly promoting ‘prudentialism’ and ‘the responsible individual’ helps make sense of the expansion of the demand for private security, and the declining influence of ‘social criminologies’. Similarly, Feeley and Simon's account of ‘the new penology’ points to the increasing influence of ‘managerialism’, ‘risk-management’ and ‘actuarial justice’ in US criminal justice. In the following pages, I sketch some further ways in which an analytic of ‘governmentality’ might deepen our understanding of contemporary crime control and criminal justice.

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  Penal Modernism and Postmodernism

  David W. Garland

  There is a widespread sense today that contemporary penality is undergoing some kind of transformation. Until quite recently, accounts of contemporary penal transformations tended to be quite narrow in their focus and quite modest in their claims. In the last year or two, however, a new and stronger thesis is beginning to emerge, one that is much broader in its scope and much deeper in its implications. The new suggestion is that the penal realm, like other areas of social and cultural life, is becoming in some sense “postmodern,” and that this historic shift forms the broad explanatory framework within which the diverse trends of contemporary penality can best be understood. Postmodernism is, of course, very old news in cultural studies, social theory, and some branches of philosophy, where the term has been a hot topic of debate for the last fifteen years. Once the term postmodern escaped from the lexicon of artistic styles into broader debates about the nature of contemporary experience, it rapidly became a kind of catchall adjective to describe the various intellectual and political predicaments of an age in which foundational claims (in respect of knowledge, value, truth, and so on) are viewed as “mere” conventions. Now, a decade and a half later, when the word has begun to lose its initial incendiary appeal, and has started to settle down as a more or less defined position in a number of well-worn debates, it has at last reached the distant shores of criminology and penology, where its precise implications have yet to be worked out. The importation of modish intellectual terms is often dismissed as the product of an academic fashion industry, driven by the marketing strategies of publishers and the status concerns of writers who hope to impress by their taste in terminology. But it is also the case that writers who are seeking to develop new perspectives in their field do so using the language and concerns of contemporary intellectual life. Consequently, the appearance of the vocabulary of postmodernism in this latest field is liable to produce original insights and radical perspectives as well as the slavish repetition of fashionable postures developed elsewhere. One can only judge the matter in terms of the substantive analyses actually produced, and seek to avoid the polarized “love it or hate it” response that the mere mention of the term postmodernism now frequently provokes. The claim that penality is becoming postmodern takes a number of forms and has been put forward by a number of writers, but the precise meaning of the claim is still rather inchoate. Writers such as Stanley Cohen (1990) and Jan van Dijk (1989) have used the term postmodern to refer to certain aspects of contemporary criminological discourse. Others such as Carol Smart (1990), and John-Paul Brodeur (1993) have proposed postmodernism as an intellectual and political stance relevant to thinking about crime and punishment (and especially to thinking about that thinking). Robert Reiner (1992) has discussed the problems of policing what he terms a “postmodern society.” However the postmodernist thesis has been put forward in its strongest form by Jonathan Simon, first of all in an article entitled “The New Penology” (coauthored with Malcolm Feeley) and more recently in his 1993 book Poor Discipline, where he titles one chapter “Penal Postmodernism: Power without Narrative” and explicitly raises the question, Are we postmodern? A common feature of these references to the postmodern is that they all have something of a gestural character. Their use of the term evokes a whole range of new attitudes, discourses, and practices, against the broad background of a new social and cultural configuration, but the precise meaning of the postmodern in criminology or penology is rarely specified in any detail. Even Simon's writings, which are by far the most substantive and interesting, are disappointingly thin when it comes to a positive characterization of what is postmodern about the present. (He is much better on what has become problematic about the modernist past.) Since most readers of criminological theory have some understanding of what postmodernism has come to mean in other fields, it has been possible to use the term in an ill-defined way and yet still succeed in communicating something (though that something is often very imprecise). At a minimum, the suggestion is that penality now increasingly exhibits certain new characteristics, which are distinguishable from those of the recent past (i.e., from penal “modernity”) and which resemble the kinds of postmodern phenomena that analysts have identified elsewhere in contemporary culture and society. The task of specifying precisely what the postmodern elements of penality might be is an important exercise that has not yet been undertaken. I hope that the analyses developed in the following pages may succeed in provoking further work in this direction.

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  The Rise of Risk

  David W. Garland

  Anthony Giddens likes to begin public lectures by posing some version of the following question: ‘What do the following have in common? Mad cow disease; the troubles at Lloyd's Insurance; the Nick Leeson affair; genetically modified crops; global warming; the notion that red wine is good for you; anxieties about declining sperm counts’. The answer, of course, is that they are all about ‘risk’ and how it has come to permeate our lives and our politics. Each item on Giddens's list illustrates the impact of science and technology on our daily lives and material environment. Each one reflects the new tensions and ambivalence of our relationship to scientific expertise. Each one is an exemplar of what Giddens and Beck mean when they talk of ‘the risk society’ and claim that risk is a defining characteristic of the world in which we live. I would like to start this chapter by posing a somewhat different question. ‘What do the following have in common? (a) the social theories of Ulrich Beck and Anthony Giddens; (b) Peter Bernstein's worldwide best-seller, Against the Gods; (c) the cultural anthropology of Mary Douglas and Aaron Wildavsky; (d) the Foucauldian analyses of power produced by Francois Ewald and Robert Castel; (e) the historical studies of tort and legal regulation of George Priest and Theodore Lowi; (f) the law and economics analyses of Guido Calabresi and Mark Geistfeld; (g) the normative jurisprudence of Steven Perry and Jules Coleman; (h) the welfare state studies of Peter Baldwin and Pierre Rosanvallon; (i) the prediction studies of John Monaghan and Peter Greenwood; (j) the “prospect theory” developed by psychologists Daniel Kahneman and Amos Tversky; (k) recent work in the sociology of insurance, of accounting, of governance, and of social control; (1) all of the chapters contained in this volume.’ The short answer to my question is that they have nothing much in common. Each group of authors on this list is engaged with a separate set of questions and forms of inquiry. Each has its own research agenda, its own disciplinary affiliation, and its own distinctive object of analysis. The list could be a page from Borges's Chinese encyclopedia, with no obvious theme linking its oddly disparate items. Except, of course, that all the authors listed here write about something called ‘risk.’ I am struck by the fact that what is sometimes referred to as ‘the risk literature’ is in fact several distinct literatures, involving different projects, different forms of inquiry, and different conceptions of their subject matter, all linked tenuously together by a tantalizing, four-letter word that has, out of nowhere, come to stand centre stage in contemporary politics and social theory. The convergence of these various works on the concept of risk, in spite of their theoretical and disciplinary diversity, reinforces my impression that, suddenly, everyone seems to be talking about risk. If Raymond Williams were still alive and minded to update his classic account of the culture's Keywords (1983), the word ‘risk’ would be at the top of his list for new inclusions. The idea of risk has come to appear indispensable for understanding our times. As Giddens puts it, 'this apparently simple notion unlocks some of the most basic characteristics of the world in which we now live.' Yet only ten or fifteen years ago, ‘risk’ had barely a marginal place in the vocabularies of social thought or cultural commentary and was rarely discussed outside of scientific journals and managerial reports. Today's accounts of risk are remarkable for their multiplicity and for the variety of senses they give to the term. Risk is a calculation. Risk is a commodity. Risk is a capital. Risk is a technique of government. Risk is objective and scientifically knowable. Risk is subjective and socially constructed. Risk is a problem, a threat, a source of insecurity. Risk is a pleasure, a thrill, a source of profit and freedom. Risk is the means whereby we colonize and control the future. ‘Risk society’ is our late modern world spinning out of control. Whatever one makes of these claims, it seems clear that risk and its management have outgrown the domain of the technical specialists and are becoming increasingly pervasive features of the contemporary world. Risk continues to be a major focus of scientific, economic, and managerial concern, but it has also become the subject of a whole variety of cultural, historical, and political inquiries, as well as a prominent theme of the social theories we generate to interpret our world. In this chapter I aim to do three things: (i) clarify the terms of discussion; (ii) speculate about why so many intellectual and political currents nowadays converge around the idea of risk; and (iii) discuss the most influential account of the place of ‘risk’ in modern society—Ulrich Beck's ‘risk society’ thesis.

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  Escola v. Coca Cola Bottling Co.: Strict Products Liability Unbound

  Mark A. Geistfeld

  On August 21, 1941, during the dinner shift at Tiny's Waffle Shop in Merced, California, a waitress Gladys Escola began restocking a refrigerator with bottles of Coca Cola. After placing three bottles in the refrigerator, she picked up the fourth from a case that had been delivered two days earlier by the Coca Cola distributor. Suddenly the bottle exploded, lacerating her finger for over five inches along the web between the first finger and thumb. The injury and ensuing operation involved the cutting of muscles, blood vessels and nerves. The resultant permanent tenderness and pain in the scar left Gladys partially incapacitated in her work as a waitress. A claim for workers' compensation resulted in a payment of $42.60 to Mrs. Escola, an amount that did not cover her medical expenses and lost wages. Alleging two counts of negligence, she commenced a tort action against the Coca Cola Bottling Company of Fresno, the company that had filled and distributed the exploding bottle. Based on the doctrine of res ipsa loquitur, the jury awarded Mrs. Escola compensatory damages of $2,900. Defendant appealed, and the case ultimately worked its way up to the California Supreme Court. At each stage, the merits of the case were decided by application of res ipsa loquitur. The import of the case, however, has little to do with that important evidentiary doctrine. In an opinion concurring with the Supreme Court's affirmance of the jury award, Justice Roger Traynor argued that the award should be affirmed on grounds of strict liability rather than negligence. According to Traynor, strict liability followed from the defendant's breach of the implied warranty of merchantability, an action grounded in tort law rather than contract law as courts had previously assumed. By freeing the implied warranty from contractual restrictions, Traynor helped set in motion the forces that would lead to the widespread adoption of strict products liability. Traynor invoked other reasons for the rule of strict liability that provided important judicial support for enterprise liability, a theory of tort liability developed by the Legal Realists that has had enduring impact on tort doctrine and scholarship.

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  Tort Law and Criminal Behavior (Guns)

  Mark A. Geistfeld

  As history shows, tort actions based on the defendant's criminal conduct are not controversial. A more controversial issue is whether tort liability should be based on crimes committed by someone else. If a third-party criminal caused the plaintiff's injury, should the plaintiff be able to recover from a noncriminal defendant whose conduct facilitated or enabled the crime? Whatever the normative resolution of this matter, noncriminal defendants have incurred liability for these “enabling torts” in a variety of contexts, including the negligent distribution of guns. Enabling torts have been recognized by the tort system for a long period, and courts have exhibited an increasing tendency to hold a defendant liable for the negligent or criminal acts of a third person. Nevertheless, the enabling torts have not been adequately analyzed, which may explain why courts have not taken a consistent approach to unlawful behavior. When applying the enabling torts, courts recognize that some individuals (the third-party criminals) act unlawfully despite the threat of criminal and tort sanctions. When applying the rule of strict liability for abnormally dangerous activities, courts assume the threat of negligence liability induces all individuals to act lawfully, even the criminally predisposed. The courts adopt a concept of unlawful behavior for the enabling torts that is inconsistent with the behavioral assumption they make when applying the rule of strict liability for abnormally dangerous activities. Courts should eliminate the inconsistency by applying the rule of strict liability in a manner that accounts for unlawful behavior. The superiority of this approach is illustrated by the tort litigation involving handgun manufacturers. The approach to strict liability currently used by courts obfuscates the real issue posed by these cases. By assuming that negligence liability induces everyone to exercise reasonable care, courts unrealistically assume that there is no criminal misuse of handguns and therefore never address the social problem created by the manufacture and distribution of handguns-the foreseeable likelihood that criminals will obtain handguns and shoot people. To address this problem appropriately, courts must account for the social fact of unlawful behavior when applying the rule of strict liability. Part II describes the enabling torts. Part III analyzes these torts, concluding that they often will be ineffective because of an inherent limitation of negligence liability. For situations in which negligence liability is ineffective, strict liability is the obvious alternative. Part IV argues that the rule of strict liability should account for unlawful behavior. Part V applies this rule of strict liability to the manufacture and distribution of handguns, identifying a persuasive rationale for not applying strict liability that is far superior to the rationales previously relied upon by the courts. Although courts may have reached a defensible result in these cases, their poorly reasoned decisions have substantially undermined an important role of strict liability to enforce the duty of care. Even tort doctrine, it seems, has been harmed by handguns.

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  The Perils of Article 2: Strategies and Interpretation

  Clayton P. Gillette

  Essays presented as a tribute to Charles J. Goetz and Robet E. Scott at the University of Virginia Law School's September, 2002 conference on the economics of contracts to commemorate the 15th anniversary of the John M. Olin Program in Law and Economics.

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  Ethical Considerations in Child Welfare Cases: The Law Guardian's Perspective

  Martin Guggenheim

  New York State has long been a leader in the country in insisting that children be represented by members of the bar in important legal proceedings affecting their lives, such as delinquency, child protection, foster care and termination of parental rights proceedings. Even before In re Gault, required that accused juvenile delinquents has a constitutional right to legal representation, the New York legislature accorded them the right to free, court-assigned counsel. Even today, there is no federal constitutional right to court-assigned counsel for children in child protection proceedings (or for their parents). Again, however, New York requires counsel where the federal Constitution does not. Moreover, although Congress requires some kind of representation for children in child protection proceedings, as a condition for the receipt of federal child protection money, it does not require, as New York does, that the representation be conducted by an attorney. That's the good news. The bad news is that the role of counsel remains insufficiently defined more than 40 years after children first were given a statutory right to counsel in Family Court proceedings. Today, as has been true for the past forty years, lawyers representing children in child protection and foster care-related proceedings do not enjoy any clear, definitive statement of their duties and responsibilities beyond the most obvious. Thus, attorneys must appear in court in every case in which they are representing a child.

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  Lineages of the Rule of Law

  Stephen Holmes

  This chapter elaborates a highly stylized and simplified account of the emergence of two features of the rule of law as commonly under- stood: predictability and equality. Legal historians would stress the role of economic, demographic, technological, scientific, religious, and cultural factors in bringing about and stabilizing institutional innovations as startlingly novel as legal certainty and equality before the law. When describing the role of important social actors in promoting or inhibiting such developments, they would weave into their story a variety of factors, including ideology, irrational passions, improvisation within inherited institutions, and the unexpected consequences of habitual behavior in a changed setting. My objective, in what follows, is both more modest and more theoretical. I aim to clarify the reasons why powerful political actors might furiously resist or warmly embrace the rule of law. We cannot explain why the rule of law does or does not emerge in a specific historical context by invoking nothing but the strategic calculations of powerful political actors. But the self-interested reasons why powerful members of a society might encourage or discourage such a development are undoubtedly relevant and deserve a focused treatment. I ask, first, why governments, with the means of repression in their hands, might be induced to make their own behavior predictable. For help in answering this question, I turn to Machiavelli. His thesis, essentially, is that governments are driven to make their own behavior predictable for the sake of cooperation. Governments tend to behave as if they were “bound” by law, rather than using law unpredictably as a stick to discipline subject populations, less because they fear rebellion than because they have specific goals (such as fending off attempts by foreign invaders to seize their territory) that require a high degree of voluntary cooperation from specific social groups possessing specific skills (soldiers) and assets (the tax base). Along similar lines, the acceptance by political rulers of other basic features of constitutional government, such as freedom of speech and parliamentary immunity, can be explained as a by-product of their attempt to obtain the information, essential to effective governance, that is locked inside the heads of knowledgeable citizens and that cannot be dislodged by repressive measures. They may also, presumably, recognize their own tendency, when shielded from criticism, to overlook dangers and make irreparable errors. For the sake of parsimony, I assume that “the political ruler” is internally coherent, capable of acting upon rational calculations, and already in full control of the means of repression. All of these traits are historical achievements, however, and would have to be explained in a fuller account. On this simplified assumption, I examine the claim that “the political ruler” first submits to regularized constraints when he perceives the benefits of so doing. At first, this claim sounds almost trivial. But it is not trivial because it generates the testable hypothesis that the rule of law will emerge or not emerge, be strengthened or weakened, be extended or contracted, as the goals and priorities of political rulers and the parameters of their calculations change. (Systems that restrain rulers constitutionally can become self-sustaining, this analysis also implies, if they manage, on an ongoing basis, to allocate power to individuals with a strong incentive to keep the system in place.) Any attempt to explain the emergence of constitutional restraints raises the question of why most governments in the past and present remain largely unbounded by law. One possible answer is that political rulers are hopelessly myopic, emotional, and incapable of acting on their own long-term interest. Alexis de Tocqueville defended exactly this position: “If remote advantages could prevail over the passions and needs of the moment, there would have been no tyrannical sovereigns or exclusive tyrannies.” Machiavelli, my guide in what follows, thinks about the matter somewhat differently. He suggests that political rulers cleave to unconstitutional methods when they anticipate that the returns to making their behavior predictable are lower than the returns to making it unpredictable. Repressive and acquisitive elites are unlikely to favor a shift toward the rule of law if they suspect that it will unhorse them. Bullies and plunderers—who could never flourish if the rules of the game were crystal clear and reliably enforced—cannot be expected to promote or embrace a system that will radically devalue the rude skills of acquisition and domination they have perfected in the state of nature. (I have drawn this conclusion after studying the Russian case.)

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  Potemkin Democracy

  Stephen Holmes

  “Elected” to the presidency of the Russian Federation on March 26, 2000, and inaugurated on May 7, Vladimir Putin's public embrace of democratic values cannot easily be reconciled with his evident belief that the Russian state can be strengthened by making its actions increasingly illegible to the public. His first actions on taking office were aimed at weakening public and private agencies designed to monitor the government, suggesting from the very outset that he identified an effective state with political arrangements that immunize office holders from criticism by the public. Kremlin policies during the past two years have only confirmed such suspicions. On becoming president, Putin quickly abolished two semi-independent agencies reporting on environmental damage: the state committee for ecology and the Russian forestry committee. He then reassigned their oversight functions to the Ministry of Natural Resources, an agency responsible for promoting economic development, which does not necessarily take a passionate interest in the free flow of information about environmental damage caused by the state itself. Within a few months, Putin also managed to convert the previously obstreperous “opposition Duma” into a rubber-stamp body. After a year, he had launched criminal investigations against a number of prominent “businessmen,” managing eventually to send two of the noisiest among them (Vladimir Gusinsky and Boris Beresovsky) into exile. And he successfully subordinated the country's eighty-eight elected governors to an increased measure of Kremlin control by removing their immunity from criminal prosecution and by appointing a handful of “supergovernors” with vague but ominous powers of supervision. He also may have extracted at least some deference from regional elites by floating the idea of converting their governorships from elected to appointed posts. Well before September 11, 2001, Putin's Kremlin energetically wielded antiterrorism laws to impede the press from diffusing any information about the war in Chechnya that appears inconsistent with the official Kremlin line. Since September 11, these proclivities have been given free rein. But antiterrorism laws play a different role in Russia than in consolidated Western democracies, even though they are everywhere invoked to curtail civil liberties. Behind Kremlin policy in this area it is not difficult to discern something other than concern for Islamic terrorism, namely the antidemocratic policy of manufacturing a simulacrum of political support by repressing dissenting voices. What makes this policy seem especially flagrant, is the near-universal support already delivered voluntarily by Moscow's media elite for the Kremlin's war in Chechnya, which is still experienced by many Russians as symbolic payback for the country's decade-long humiliation. This autocratic turn in Russian politics may ultimately collapse under its own weight. But if it fails, it will not be because democracy has already become “irreversibly consolidated” in postcommunist Russia. Putin's power grab may end in defeat because the country's economic and social problems are immense and growing and are beyond the power even of a self-imagined man of steel to solve, because recentralization of power will trigger resistance and obstructionism from the social forces it threatens; because the bureaucracies (including the militarized secret services) at the Kremlin's beck and command are fragmented, incompetent, and corrupt; because the President will be unable to locate well-organized social partners for his initiatives; and because he cannot for various reasons resort to the principal Soviet-era method of social control, namely the sealing of his country's borders. Whatever other obstacles it faces, Putin's power grab will not be seriously hindered by electoral majorities.

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  EC-Asbestos: European Communities—Measures Affecting Asbestos and Asbestos-Containing Products

  Henrik Horn and Joseph H. H. Weiler

  Some cases attain “landmark” status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, “canonical,” ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC-Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non controversial result. It is a rare, indeed unique, instance that embedded in the decision itself a Member of the Appellate Body Division which decided the case expresses “substantial doubt” as to the core reasoning of the decision. And although the AB rejected the reasoning, not the final outcome, of the Panel’s decision, the doctrinal implications of the rejection are not clear and continue to be contested. The importance of Asbestos must initially be found in its factual matrix, a French Government Decree of 1966 providing, inter alia, in its first article as follows: “I.—For the purpose of protecting workers, . . . the manufacture, processing, sale, import, placing on the domestic market and transfer under any title whatsoever of all varieties of asbestos fibres shall be prohibited, regardless of whether these substances have been incorporated into materials, products or devices. II.—For the purpose of protecting consumers, . . . the manufacture, import, domestic marketing, exportation, possession for sale, offer, sale and transfer under any title whatsoever of all varieties of asbestos fibres or product containing asbestos fibres shall be prohibited . . .” This is a most typical (arguably the most typical) kind of government measure in the field of consumer and workplace protection taken in Member Countries of rich or poor, North or South, West or East. EC-Asbestos thus affects the physiognomy, not the pathology, of government regulation and its entanglement with General Agreement on Tariffs and Trade (GATT) trade rules. It is also a case that implicates what is arguably the most central of GATT disciplines: National Treatment in the field of Regulation (and, by implication, taxation). There was never a serious doubt as to the material outcome of this case: validation of the legality of the French measure (many suspect that the Canadian government could not have seriously believed the WTO would overturn a ban on asbestos, but that it needed the result as a matter of domestic politics.) Thus, this is not a case about outcomes but about reasoning: the proper way for regulators and adjudicators to think of the application of the most central of GATT disciplines to the most central of government regulatory activity. It is our belief that the case does not settle this question definitively but is extremely important in putting the methodological question squarely back on the table. It is veritably a watershed case—the full significance of which will emerge in the light of subsequent jurisprudence. Our own methodology will be as follows. The outcome of EC-Asbestos is hardly in doubt here. It is, as noted, the framework of methodologies that should become the central discussion point regarding EC-Asbestos, for it will provide a normative yardstick with which both to evaluate the specific decision in this case and to prescribe future evolution. We shall therefore first expound three possible approaches that EC-Asbestos exemplifies for interpreting the ambit of the National Treatment provision in GATT as it applies to regulation. Although, following the case, our focus will be on regulation, one cannot fully grasp the issues in the case without extensive reference to the law and case law on taxation. The principal governing norm, Article III. GATT is part of a whole (Article III GATT) which situates taxation and regulation side by side under a common chapeau. We will then discuss, critically, the main findings by the Panel and the AB in the light of these approaches.

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  How to Begin to Think About the 'Democratic Deficit' at the WTO

  Robert L. Howse

  There is an increasingly widespread intuition that the World Trade Organization lacks adequate democratic legitimacy, or has a ‘democratic deficit’ to use an expression derived from debates about the European Union. Views on the issue of the WTO and democracy range from the dismissal of the ‘democratic deficit’ based on the notion that since the WTO rules are approved by national governments they must be democratic or adequately so, to claims that the WTO along with other institutions and actors of globalization as essentially destroyed democracy as we have known it. Despite the intensity with which the issue of democracy and the WTO is contested there is essentially no literature aimed at bringing analytical clarity to the problem. As Susan Marks notes, democracy itself “is a hugely contested concept”. In other work, I have identified a range of conceptions of ‘democracy’ that is at play in debates about democracy and governance beyond the nation state, including representative democracy, deliberative democracy, corporatist or consociational democracy, republican or communitarian democracy, and democracy as decentralization. All of these views of democracy have salience in determining democratic legitimacy, and they are in important ways inter-related. For example, while representative democracy is identified with formal representative institutions, such as elected parliaments, the legitimacy that flows from such processes surely presumes elements of deliberative democracy, such as the possibility—and reality—of debate and confrontation of different points of view on public policy. Not only dreamy academics but politicians and activists for secession and regional autonomy movements, among others, invoke republican conceptions of democracy to justify their cause, despite the reality that representative institutions in modem democracies appear to offer on a daily basis little of the collective self-determination of which Rousseau waxed eloquent in his more poetic moments. A further complication, often forgotten, is that democracy is not the only source of legitimacy for policy outcomes. Decisions of a constitutional court to constrain majority will, for example, may be legitimated in significant measure by deontological conceptions of human autonomy or equality. Decisions of autocratic or authoritarian regimes may have a certain legitimacy, even in the absence of ‘democracy’, if they are respectful of social diversity, and reflect a process of consultation with the people. As if the complexity, interrelationship, and contestability of salient alternative conceptions of democracy didn't make the task of analytical clarity hard enough, the perception of a democratic deficit in institutions of globalization such as the WTO occurs at a time when there is significant disillusionment with domestic democratic institutions and practices, indeed with domestic governance. Thus, it is not sufficient to address the ‘democratic deficit’ from a static perspective, merely asking to what extent outcomes in the WTO are less democratically legitimate than policy outcomes within domestic polities. Many of the most outspoken critics of the WTO are also outspoken critics of the real world of democracy within the nation state—of course, it isn't the fault of the WTO that the goal posts, as it were, are being moved, but to some extent they are, and if the claims for a higher standard of legitimation domestically are well-founded, then it is besides the point, or at least somewhat inadequate, to point out that the WTO doesn't fare that badly measured against the arguably low domestic ‘status quo’. Within the confines of this essay, it is possible only to begin to suggest what sort of analytical framework could clarify issues of this complexity. Thus, I have proceeded by looking at one model of democracy, representative democracy, as it has been actually practiced in the ‘West’ in the post-war period, as well as how its practice has been conceived ideally by scholars of democracy. In order to attempt to refine the inquiry into the existence of a democratic deficit, I have identified four separate issues or questions that are of relevance, which often get elided or confused with one another, in debates about the WTO and the democratic deficit. The first, which is the most obvious, relates to whether WTO rules are sufficiently underpinned by democratic consent. A second concern is whether the substance of the rules themselves is democracy-enhancing or undermining. A third kind of concern relates the nature of WTO rules as pre-commitments—assuming arguendo that there is an adequate initial act of consent to the rules, today's majority is purporting to bind tomorrow's. WTO rules are not reversible without cost, should there be a change in popular will in a given Member country—nor would such rules have much value, if they could be abandoned freely. There is nothing inherently undemocratic about democratic pre-commitment—most liberal democratic constitutions purport to bind and constrain the majority will in the future. Yet such pre-commitments usually require special or extraordinary procedural justifications—super-majority votes in the legislature, referenda and plebiscites—or extraordinary substantive ones (such a deontological account of the primacy of certain rights over any expression of popular will). The question is whether such justifications exist with respect to WTO rules, and whether they are strong enough, given what appear to be the costs of reversibility in response to a change in the direction of the popular will in a Member State. A forth concern arises from the character of democracy as not merely a set of legitimating institutional mechanisms, but also as a set of values or behaviors. Among the values often plausibly associated with democracy are openness, accountability, equality, value pluralism and inclusiveness. One dimension of the issue of democracy at the WTO is whether the behaviors and attitudes of the actors in the system, or closely associated with it, are appropriately reflective of such values.