Faculty Chapters

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  Epilogue: Europe's Dark Legacy: Reclaiming Nationalism and Patriotism

  Joseph H. H. Weiler

  The legal scholarship of the National Socialist and Fascist period of the 20th century and its subsequent reverberation throughout European law and legal tradition has recently become the focus of intense scholarly discussion. This volume presents theoretical, historical and legal inquiries into the legacy of National Socialism and Fascism written by a group of the leading scholars in this field. Their essays are wide-ranging, covering the reception of National Socialist and Fascist ideologies into legal scholarship; contemporary perceptions of Nazi Law in the Anglo-American world; parallels and differences among authoritarian regimes in the Third Reich, Austria, Italy, Spain, and Vichy-France; how formerly authoritarian countries have dealt with their legal antecedents; continuities and discontinuities in legal thought in private law, public law, labour law, international and European law; and the legal profession’s endogenous obedience and the pains of Vergangenheitsbewältigung. The majority of the contributions were first presented at a conference at the EUI in the autumn of 2000, the others in subsequent series of seminars.

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  In Defence of the Status Quo: Europe’s Constitutional Sonderweg

  Joseph H. H. Weiler

  The notion of a European constitution has previously received unfavourable reactions within the European Union with controversy surrounding its political and legal implications. Criticism has largely revolved around the threat of an emerging European federal state. More recently, however, constitution-building has become a major point of debate among members of the European Community as the drafting of a European constitution becomes more imminent. European Constitutionalism Beyond the State brings together some of the most innovative scholars in the field to highlight different facets of the new constitutional discussion. Provoking deep analysis of the different ideas of constitution and constitutionalism, the book delineates alternative ways of thinking about the future of Europe. In particular, it aims to challenge the idea of the European Union as an evolving federal polity. This book will appeal to anyone interested in the timely subject of constitutionalism including students and practitioners of law, politics and philosophy.

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  Rewriting Van Gend & Loos: Towards a Normative Theory of ECJ Hermeneutics

  Joseph H. H. Weiler

  The problem of the law making power of judges and the legitimacy and limits of judicial discretion recur throughout the history of legal thinking. It has been addressed from many angles and seen in many perspectives from Aristotle's Nicomachean Ethics to Ronald Dworkin's Law's Empire. Presently, the legitimacy of public power is more and more frequently questioned and doubted. As long as a substantial proportion of the exercise of public power is entrusted to courts and court-like bodies, there is a need for finding clear and comprehensible limits between the realm of judicial and political decision-making. The role of the judiciary in relation to the legislature has naturally become a subject of strong topical interest and is vividly discussed in many quarters and countries. This collection of essays on judicial discretion takes off with a jurisprudential introduction, which deals with different understandings of judicial discretion, its sources and links to the objectives of European Integration. This includes an elaboration of the relationships between conceptual understanding, actual practice and normative boundaries of judicial discretion. The second theme focuses on the actual practice of judicial discretion of European courts and deals with interpretation and justification against the vision of creating a coherent European legal order.

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  Individuality and Identity

  Kwame Anthony Appiah

  The Tanner Lectures are a collection of educational and scientific discussions relating to human values. Conducted by leaders in their fields.

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  The Finality Requirement in Takings Litigation After Palazzolo

  Vicki L. Been

  Takings law centers on the requirement of the Fifth Amendment to the U.S. Constitution that just compensation be paid for property taken for public use, and the U.S. Supreme Court's holdings that excessive regulations of land use can effect takings.

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  Game-Theoretic Analysis of Legal Rules and Institutions

  Jean-Pierre Benoît and Lewis A. Kornhauser

  We offer a selective survey of the uses of cooperative and non-cooperative game theory in the analysis of legal rules and institutions. In so doing, we illustrate some of the ways in which law influences behavior, analyze the mechanism design aspect of legal rules and institutions, and examine some of the difficulties in the use of game-theoretic concepts to clarify legal doctrine.

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  Philosophy of International Law

  Allen Buchanan and David Golove

  This article emphasizes the task of framing some of the central issues of the philosophy of international law. It addresses the normative dimension of international law—the moral theory of international legal doctrine and institutions—not what Hart would call the analytic dimension, and not the epistemology of international law. It develops a concept of the relationship between normative theorizing about international law and the realities of the current state-centred international system. It articulates most of the issues a normative theory of international law must address, indicating the key choices, which a theorist faces, and thereby suggests an agenda for further research. It also discusses human rights, humanitarian intervention, and the conditions for the legitimacy of governments which will have direct and fairly obvious implications.

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  Reconsidering Judicial Independence

  Stephen B. Burbank and Barry Friedman

  Judicial independence exists primarily as a rhetorical notion rather than as a subject of sustained, organized study. Many scholars assume that a judiciary with at least some independence is important to the protection of property rights and individual liberty, not to speak of the maintenance of the structure of democratic governance itself. But legal writing on the subject all too often seems part of a polemical debate between contending camps. Very little of this work even acknowledges the existence of state courts, let alone considers how the variety of arrangements governing state judiciaries might affect general theories of judicial independence. Meanwhile, the political science literature has not been immune to its own brand of extremism, much work failing to acknowledge that different courts may play different roles and, more generally, viewing the question of judicial independence in all or nothing terms. Good, serious work about judicial independence is available in both the legal and political science literatures, but there is too little of it, and too often the products have been like ships passing in the night. Our goal in this chapter is to reinvigorate research about judicial independence by taking account of the contributions of multiple disciplines without being captive to the traditions of any of them. We are indebted not only to those whose work is presented in this volume or cited here, but to all of the participants in the conference out of which this volume has emerged. Interdisciplinary scholarship is fashionable. Too often it has the appearance of window dressing. Hopeful that we may avoid such criticism ourselves, we take an interdisciplinary approach because we are persuaded that it offers the best hope for genuine understanding of, and wise public policy concerning, the role of the judiciary in American society.

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  Justification: Law Enforcement

  Paul G. Chevigny

  The law recognizes a privilege for an actor to employ force to prevent crime, to effect a lawful arrest, to prevent an escape from custody, under circumstances where, without the justification of such a privilege, the actor might be charged with assault or even homicide. This category of justifications, like others, arises in cases where the law accepts that a harm is done, or may be done, by the conduct of the actor, but finds that the harm is outweighed by the need to further a greater societal interest. The availability of the justification defenses arising out of law enforcement revolves around the questions whether the actor's use of force is “necessary to protect or further the interest at stake,” and whether it causes “only a harm that is proportional, or reasonable in relation to the harm threatened or the interest to be furthered.” These considerations are basic in analyzing justifications for actions taken in pursuance of law enforcement. The justifications for actions by law enforcement personnel discussed below are applicable to police officers, peace officers, and on occasion to military personnel when maintaining order; the scope of the coverage may vary from place to place by statute.

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  Economic Analysis of Legal Disputes and Their Resolution

  Robert D. Cooter and Daniel L. Rubinfeld

  Economic thought about law old, but the economic analysis of law, which relies on formal models, is new. A little over 30 years ago, economics was relegated by lawyers to the technical role of providing expert advice on a relatively narrow set of laws in such fields as antitrust and labor. There were no journals devoted to the economic analysis of law, it had no place in the first-year curriculum at American law schools, and few American law schools allocated a full-time faculty position to a pure economist. From its modest beginnings in the 1960s, the economic analysis of law became an intellectual fad in the 1970s. The fad is over, but the continuing progress of the subject remains impressive. There are now four journals devoted to the economic analysis of law, articles using this approach appear frequently in the major law reviews, economic arguments and perspectives are often developed in the first-year law courses, and each of the major law schools has at least one economics PhD on its faculty. Like the rabbit in Australia, the economic analysis of law found a vacant niche in the intellectual ecology, and filled it rapidly. The vacancy was created in part by the inability of legal theory to provide sufficient guidance for American courts that were increasingly involved with policy questions. Policy-making courts need a behavioral theory to predict responses to changes in law and to evaluate these responses systematically according to a normative standard. Economics was able to provide both the behavioral theory and a normative standard that legal theory lacked. The behavioral theory treats laws, like prices, as incentives for behavior. It has been well received, although controversy continues concerning the responsiveness (or lack of it) of poorly informed and possibly irrational actors. The normative theory of efficiency is relatively uncontroversial (Who favors wasting money?) as a broad guide to policy. But, controversy is abundant when efficiency is seen as dominating other norms of fairness and justice. The economic analysis of law, having secured a place in mainstream North American institutions of legal education, is influential but controversial, which is the most a body of ideas can attain in a profession of advocates. It seems that the acceptance of economic theory into law has been eased by structural similarities between economics and law. For example, the “reasonable man” of the law is not very different from the “rational man” of economics. The law's search for a fair division of the burdens of accidents is not very different from the economist's concern for the efficient allocation of risk. All substantive areas of law have a common concern with the processes by which legal disputes get resolved, which is the subject of this article. The existing corpus of economic literature on courts is modest, but understanding the litigation process has become important, even urgent, as courts intrude more forcefully upon resource allocation. The number of trials, their cost, and the size of awards are unprecedented. To illustrate, civil cases tried in federal courts tripled between 1975 and 1985, and an $11 billion judgment against Texaco forced one of America's largest corporations to file for reorganization through bankruptcy. The related costs of litigation are known to be large, although difficult to quantify. This review consists of four parts. Part I focuses on the application of economic tools to the study of courts and outlines the chronology of a legal dispute. In our framework, legal disputes are resolved at various stages of a sequential decision-making process in which parties have limited information and act in their own self-interest. Part II reviews the predictions obtained from modeling these decisions, and Part III discusses their normative significance. Part IV contains a conclusion that assesses the progress and promises of the subject.

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  Welfare

  Sheldon H. Danziger and Jeffrey S. Lehman

  The American welfare state emerged during the twentieth century. Over the course of a hundred years, the nation fashioned a complex web of social insurance and means-tested programs, financed and administered at all levels of government. Today, most Americans share a commitment to protecting the most vulnerable from extreme economic hardship. What has yet to emerge is a true consensus about how that commitment should be balanced against a variety of other social policy goals that Americans value, such as a belief in limited government and the primacy of individual responsibility. Moreover, the American welfare state remains less extensive and less generous than those in most other industrialized nations. The oldest roots of American social welfare policy are in England, in the Poor Laws of 1601 and 1834. American antipoverty policy was, in its colonial origins, a patchwork of locally administered programs offering minimal assistance to the most obviously blameless among the destitute. Administrators were preoccupied with the social dangers of “pauperism,” a dispirited dependency among the poor. While the programs reflected a salutary symbolism of public concern with the poor, in practice they were inadequate to the challenges of industrial society. The 1900s ushered in the Progressive Era and a wave of new public efforts to prevent poverty and protect children. Many states created programs of social Insurance, including workers' compensation and unemployment insurance; in part, they hoped to induce employers to take better care of their workers. Moreover, the “Child Saving Movement” led most states to enact “mothers' pensions,” to help morally upright widows survive without abandoning their children. None of these programs, however, could address the suffering brought on by the Great Depression of the 1930s, which left one-fourth of the workforce unemployed in 1933. Franklin Delano Roosevelt's New Deal made social welfare policy an overarching concern of the federal government. The Federal Emergency Relief Administration provided funds to state governments to help the poor. The Civil Works Administration provided public employment of last resort during the winter of 1934. And the successor Works Progress Administration created many low-wage, means-tested jobs. The Supreme Court invalidated some New Deal legislation, such as the National Industrial Recovery Act (A.L.A. Schecter Poultry Corp. v. United States (1935)) and the Railway Pension Act (Railroad Retirement Board v. Alton Railroad (1935)). Undeterred, Congress pressed forward with an ambitious interventionist agenda. Roosevelt proposed to “pack” the Court with sympathetic justices, and under political pressure the Court underwent a change of philosophy, allowing the national government a greater role hi economic affairs (NLRB v. Jones & Laughlin Steel Corp. (1937)) (see COURT PACKING). The signature enactment of the New Deal was the Social Security Act of 1935. Responding in part to a political crusade led by Francis Townsend, the Act created a federally financed and administered retirement insurance program of “old age pensions” for people who had worked in certain sectors of the economy and had, along with their employers, paid payroll taxes on their wages. The Act also created a federally financed but state-administered unemployment insurance program. The Act created means-tested programs to assist the elderly poor and the blind poor, in each case run by the states but partially financed by the federal government under a structure known as “cooperative federalism.” And the Act created Aid to Dependent Children (“ADC,” later to become Aid to Families With Dependent Children, or “AFDC”), a program of cooperative federalism designed to support certain needy children. ADC authorized states to provide support for the children of divorced, separated, and never-married mothers, as well as the children of widows. But, at least initially, states were not required to take full advantage of that authority. They could choose to offer benefits only to those families where the mother maintained a “suitable home.” Most states used that discretion to manage the sexual conduct and workforce participation of their clientele.

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  Convergence and Divergence in European Public Law: The Case for Human Rights

  Gráinne de Búrca

  Given that the theme of this book is one which seeks to explore convergences and divergences in European public law, an obvious way of situating the subject of human rights within that framework would be to consider whether the legal and political conceptions of human rights protection within and across member states of the EU are converging under the influence of the European Convention on Human Rights, the evolving human rights jurisprudence of the European Court of Justice, and more recently and speculatively, the EU Charter of Fundamental Rights. The inquiry of this chapter, however, is situated at a prior stage, in considering the extent to which a human rights “system” is in fact emerging at the European level. Its focus is primarily on the EU, rather than on the ECHR or on the relationship between those systems. As far as the Convention on Human Rights is concerned, it is certainly possible to point to a degree of formal convergence, most obviously manifested in its eventual incorporation by all of the EU member states including recently the UK and Ireland. But to consider seriously the impact of the Convention norms and of the jurisprudence of the Strasbourg Court on EU member states would entail a more complex inquiry, examining not only the extent to which national laws and practices have been adapted in order to achieve a degree of conformity with those norms, but also the extent to which such implementation, transposition or absorption of norms might be occurring in ways which are quite distinctive and specific to the various national legal systems. The focus of this chapter instead is on the EU dimension of the subject. In the field of human rights, the question whether some degree of convergence of national law is taking place under the influence of EU law presupposes that there are relevant norms at EU level which could cause national legal systems to converge in this respect. Yet, in the field of human rights (even taking into account how vague the contours of that subject may be) the role and relevance of the European Union remains contested and confused. Unlike some other fields of administrative and constitutional law, the legal foundations of the EU’s competence to adopt human rights norms and its position as an actor in that field are uncertain. From one perspective, it could be said that the EU’s influence on the nature and content of human rights norms within member states is at best a derived and indirect one, since the human rights principles recognised within EU law are actually drawn from the ECHR and from the national legal systems in the first place. However, the position is more complex than this. While there is clearly—as there is in various other fields of administrative law—some kind of reciprocal relationship between the development of legal principles within the EU legal system and within member states’ legal systems, the EU is arguably developing what might be called an autonomous, rather than a parasitic or purely derivative human rights competence. How the norms and principles which are articulated by the EU will be shaped, and whether and how they are likely to influence the national legal systems remains to be seen. But my current focus is on examining the emerging basis for and nature of a distinctive European Union human rights policy, rather than tracing the subsequent question of its influence on national systems.

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  Unpacking the Concept of Discrimination in EC and International Trade Law

  Gráinne de Búrca

  The notion of discrimination has always been fundamental to international trade law, constituting one of the principal conceptual tools for identifying impermissible trade restrictions. It continues to be a key, albeit increasingly complex and widening concept in world trade law, where its centrality amongst the norms of the WTO system is unquestioned. It will be argued in this chapter that whereas the origins of international trade law indicate that its primary goal was to eliminate national protectionism, and not to promote international regulatory convergence or harmonization, even this basic notion of protectionism is a potentially slippery one capable of expansion and indeterminacy in practice. The principle of non-discrimination was developed in order to further this primary goal, as a means of helping to identify protectionist measures, but the discrimination concept is also a complex and expansive one. While the EU is now clearly a far more closely integrated regional system in which the goal of anti-protectionism was from the outset accompanied by a strong programme of market integration and harmonisation, buttressed in recent years by an ambitious project of political and constitutional integration, a look at the WTO system indicates that many of the same legal developments––albeit that they happened much more quickly, explicitly and intensively within the European system––are becoming apparent in that context. The expansion and blurring of the notions of protectionism and discrimination on the one hand, and the move towards norms of indirect discrimination and ‘unnecessary’ barriers, as well as the increasing complexity of the notion of direct discrimination (through the subtleties of determining ‘like’ products) are all to be seen occurring in the context of the provisions of the WTO agreements. The balance between a strong market culture and the regulatory space to pursue other policy goals is clearly shaped in important part by these foundational concepts––in other words, by the breadth of the basic prohibition on trade barriers––and in part by the nature and scope of the possibility for justifying such barriers. A common misapprehension is to assume that these concepts––protectionism, discrimination, market access etc––have relatively fixed or stable meanings, and that the pattern or strength of trade liberalisation depends on which of them is the animating principle underlying the legal norms. On the contrary, consideration of the development of the EC internal market and of the GATT/WTO system over time suggests that the concepts themselves are eminently fluid and that their construction is capable of changing as the economic and political context in which they are being interpreted alters. The EU and the WTO, in their different ways, are highly dynamic entities and their norms are in a process of ongoing articulation and development. This is partly through a process of contestation before the courts and dispute settlement bodies of the two entities, and partly through the relationship between law and politics––or more narrowly, the balance between negative and positive integration––within the respective systems. Further, the deeper policy questions concerning the relationship between market and society, which are mediated by the balancing of trade liberalisation norms and ‘domestic’ (which in the WTO context includes also ‘EU’) regulatory autonomy, cannot be avoided by the choice of concept to underpin the system. That balance is implicit in and will emerge in the construction of whatever fundamental concept is chosen––whether protectionism, discrimination, market access or some other––although the balancing process used is likely to vary depending on these. Many factors including the types of values and non- economic norms which can be brought into the balance, the degree of importance to be given to the trade liberalisation aim and where the weight of presumption will lie, will vary in accordance with the nature and structure of the basic concept chosen to constitute the trade liberalisation norm. Ultimately, however, the underlying and fundamental policy questions can never be entirely avoided, but can only be structured differently, because the very act of elevating free trade norms—whether by ‘constitutionalising’ them as in the European context, or by vastly strengthening and privileging them as under the reformed WTO system—necessarily forces some version of that choice onto all communities which participate in the system.

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  The Delimitation of Powers Between the EU and Its Member States

  Gráinne de Búrca and Bruno De Witte

  The exact division of powers and competences at EU level has, to date, been left to be determined rather fluidly, by a mixture of action and initiative on the part of the relevant EU institutions, which can be challenged during the political process or ultimately before the Court of Justice in the event of opposition. Because so many of the Treaty provisions which confer power and in particular some of the earlier and original provisions of the Community Treaties-are broadly defined and do not specify what the relationship with national powers in that field should be, this kind of gradual and fluid process has perhaps been unsurprising. It is particularly noteworthy that the Court of Justice has contented itself with incidental interventions, I some thing which can be explained in part but not entirely by reference to the paucity of suitable opportunities presented to the Court through litigation.

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  The ECJ and Judicial Review of National Administrative Procedure in the Field of EIA

  Gráinne de Búrca and Áine Ryall

  This volume is based on a workshop held at the European University Institute, Florence, November 1999. The papers have since been revised and updated and focus on the growing impact of European law on the core elements of member states' administrative law, and especially on their different conception of procedure. The first article confirms the American experience that autonomy of procedural rationality is not easy to picture, and that implimenting a similar procedure in Europe will face difficulty. The other articles look at the procedures that exist in different member states and how a change in procedure could possibly undermine national law and procedure, without replacing it with anything substantial.

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  Commodifying Collaborative Research

  Rochelle C. Dreyfuss

  Information and the marketplace are uneasy bedfellows. The dissemination of information via media can The commodification controversy is posited as a conflict between the users and creators of information products over modifying intellectual property law in the face of technological change. Commodification is said to help creators because it establishes a market for their work—a market that generates monetary incentives to innovate, measures consumer demand for new works, and facilitates information exchange. Since modern technologies of reproduction and dissemination make the public-goods character of information products more salient, it is argued that a new law is needed in order to maintain the level of exclusivity creators previously enjoyed. At the same time, however, commodification is thought to harm users because it makes it more difficult for them to acquire knowledge. Enhancing legal and technological means for privatization is therefore questioned as going beyond the mere maintenance of exclusivity, instead allowing rights holders to charge for works that formerly fell into the public domain, price discriminate, and impose all sorts of new restrictions on use. Lost in this debate is the effect of technology on the ways that information and cultural goods are actually produced, particularly on the extent to which individual creativity has been replaced by collaborative effort. In fact, the artist starving in a garret, the scientist madly experimenting in the garage, and the reclusive professor burning midnight oil are all rapidly becoming myths. In a world of increasing technical complexity and intensifying specialization, interdisciplinary investigation has become crucial to progress. With the globalization of the marketplace comes a need for multicultural input into product development. As private financing for technological start-ups increases (and public funding of basic research withers), economic factors prompt new alignments within the innovation industries. At the same time, digitization and the Internet facilitate interchange and present fresh artistic and scholarly opportunities. This new world is characterized by such phenomena as chain art, interactive websites, multi-authored scientific articles, as well as corporate joint ventures and university distance learning initiatives. As production methods have become increasingly complex, claims for creative recognition have also blossomed. By drawing attention to their contributions, graduate students, dramaturgs, statisticians, reviewers, editors, and the like have transformed social understanding of information production. Works that might once have been seen as individually created must now be viewed as the product of collaboration. This essay looks at the special challenges that commodification presents to participants in collaborative projects and examines the disjuncture between current U.S. intellectual property law and the issues of importance to collaborators. It ends with suggestions on the ways in which the law might be improved.

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  Implications for Legal Reform

  Richard A. Epstein

  This volume addresses the relationship between legislation and litigation as means to control the untoward consequences of certain key activities, for example, the use of firearms and tobacco. In truth regulation through litigation does not pertain only to those sinful activities that lie at the edge of the law. Rather any gainful activity that carries with it the risk of untoward consequences, such as medical treatment or the use of dangerous products, is a fit subject for inquiry. Regulation of such a wide range of activities raises many institutional and substantive questions. First, what branch of government should make the rules that determine the rights and duties of individuals and firms involved in this broad array of activities? Second, should these resulting obligations be enforced by administrative means on the one hand, or through the judicial system on the other? There is of course an obvious potential overlap between these two institutional inquiries: there is nothing that prevents the legislature from imposing requirements on the users of, say, guns that invoke administrative sanctions on the one hand and private damage actions by aggrieved individuals on the other. Indeed the legislature may authorize private persons to bring tort actions for a breach of statutory standards, and much authority says that the right to bring these actions will ordinarily be presumed by persons who suffer "special" injury at the hands of a defendant who has acted in violation of the statutory norm. Preoccupation with these institutional questions should not, however, blind us to the second part of the inquiry: is the combination of administrative and judicial sanctions socially desirable? We cannot rest content with the proposition that the higher enforcement levels perfectly correlate with improved social welfare. Rather, in assessing this and other claims about appropriate regulation, we must begin with the understanding that all human activities are subject to two kinds of error: overbreadth and underbreadth. It is possible to misstep by imposing sanctions on desirable conduct and conversely by not imposing sanctions on untoward conduct. Any aggressive effort to limit the adverse consequences of harmful conduct is likely to stifle desirable conduct too. The proper social task is to minimize the sum of errors resulting from over- and underenforcement, not just those shortfalls arising from one side alone. How that is to be done poses major questions that require a solid grasp of the institutional and substantive features of regulation. This tour of mass torts progresses as follows: an analysis of the situation with respect to gun liability, tobacco liability, and silicon breast implant cases. Next I address medical malpractice questions and insurance issues, and finally I briefly discuss class actions.

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  An American Perspective on Fundamental Labor Rights

  Cynthia Estlund

  As a general matter, the American perspective on labour market issues can hardly be said to get too little attention these days. That perspective is closely identified with the ascendancy of the market and a receding role for state regulation in an increasingly global economy. It is hailed by some as a stimulant to economic growth and expanding employment, and it is decried by others as a licence for increasing economic inequality and insecurity. So on the question of fundamental labour rights—which I take to mean rights grounded in some legal source such as a constitution that is not changeable through ordinary national legislation—the American perspective might seem predictably and numbingly negative. I hope to convince you that, quite to the contrary, the American perspective on fundamental labour rights is interestingly and complicatedly negative. I will mostly forego what may be the expected comparison between a market-centred and a rights-centred approach to employment, though I will return to it briefly at the conclusion of this chapter. And I will mostly resist any imagined invitation to offer an American view of British or European developments. Instead I will focus primarily on the American experience with workplace rights and some institutional questions about their location and degree of entrenchment: just how fundamental are American labour rights, and how did they get that way?

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  Labor Law: Labor Relations

  Samuel Estreicher

  A landmark in legal publishing, The Oxford Companion to the Supreme Court is a now classic text many of whose entries are regularly cited by scholars as the definitive statement on any particular subject. In the tradition of that work, editor in chief Kermit L. Hall offers up The Oxford Companion to American Law, a one-volume, A-Z encyclopedia that covers topics ranging from aging and the law, wiretapping and electronic eavesdropping, the Salem Witch Trials and Plessy vs. Ferguson. The Companion takes as its starting point the insight that law is embedded in society, and that to understand American law one must necessarily ask questions about the relationship between it and the social order, now and in the past. The volume assumes that American law, in all its richness and complexity, cannot be understood in isolation, as simply the business of the Supreme Court, or as a list of common law doctrines. Hence, the volume takes seriously issues involving laws role in structuring decisions about governance, the significance of state and local law and legal institutions, and the place of American law in a comparative international perspective. Nearly 500 entries are included, written by over 300 expert contributors. Intended for the working lawyer or judge, the high school student working on a term paper, or the general adult reader interested in the topic, the Companion is the authoritative reference work on the subject of American law.

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  Strategy for Labor

  Samuel Estreicher

  A study of the long-term decline of the labour movement in America, exploring the outlook for labour and unions in the 21st century. There are insights from contributors from a range of backgrounds - academic and non-academic, domestic and foreign, pro- and anti-union.

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  The Defense Attorney's Perspective on Youth Violence

  Barbara Fedders, Randy A. Hertz, and Stephen Weymouth

  On seeing the title of this chapter, readers may wonder why there is any need for reflection on the “defense attorney's perspective on youth violence.” Given the prevailing conception of defense attorneys as the representatives of individual clients in individual cases, it may seem that they have little to offer in a broad discussion of the management of youth violence. Moreover, given the defenders public image as a single-minded crusader who seeks to “get the client off” at all costs, it may seem that a defender would approach any such discussion with an instrumentalist bent, ready to advance the not-so-hidden agenda of maximizing the liberty of his or her clients. We have actually become accustomed to the absence of the defender’s voice and perspective in public debates of appropriate responses to youth violence. When the media choose to focus on the subject of youth violence—usually because of a horrific crime committed by a child—politicians and prosecutors weigh in with the standard litany of calls for harsher punishments for children while defenders often seem to stand mute. Politicians seek to establish themselves as “tough on crime,” including juvenile crime; usually missing from the debate is a voice to plead the cause of the children. As a result, certain myths have come to dominate public discourse, with no one to gainsay them. It has become commonplace for politicians, the media, and prosecutors to claim that the original conception of the juvenile court as a mechanism for rehabilitation is no longer viable because the “wayward child” of the past has been succeeded by the “superpredator.” Movies, television shows, and the media provide the subtext for those claims by projecting images of adolescents, particularly those who are African American or Hispanic, as violent, explosive, and remorseless. What effects have such claims and negative images had on the juvenile justice system? While cause-and-effect relationships are difficult to trace when dealing with cognitive phenomena, consider the following paradoxes: Although the rate of violent crime by juveniles has been falling since the mid-1990s, the rate of pretrial detention has generally remained constant (and, in some jurisdictions, has actually increased); despite evidence that community-based programs are better at combating recidivism than incarceration and are vastly less expensive, legislators and administrators cut funding for those programs while sinking more money into construction of adult and juvenile prisons;14 even when community-based alternatives are available, judges routinely incarcerate young people, even for non-violent crimes; and, although the available evidence strongly suggests that treating juveniles like adults does not reduce recidivism and may actually increase the likelihood of rearrest upon release, the type of systemic “reform” that seems to be most attractive to politicians is to transfer ever more children to the adult criminal justice system. This chapter draws heavily on the perspectives of the authors as juvenile defenders and advocates. As we argue in greater detail, the actions of legislators, prosecutors, and judges reveal a view of young people (or, more precisely, the young people who appear in juvenile court in delinquency cases) as incorrigible and usually dangerous. We take a closer look at the manifestations of that mindset and offer our theories about its sources, exploring the myths that animate—and are used to justify—the treatment accorded alleged delinquents. We also examine the role that the juvenile defense bar can play in combating such myths, for example, by representing their clients more effectively in individual cases and creating a systemwide mindset that is more responsive to children's needs.

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  Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice

  John A. Ferejohn and Pasquale Pasquino

  The collapse of the communist empire coincided with a new wave of constitution making. All the Eastern European countries included in their new constitutions an organ in charge of constitutional adjudication that is modeled on what we define below as the Kelsenian type. This was neither surprising nor original. The same phenomenon occurred in Southern Europe about 20 years ago, after the collapse of fascist authoritarian regimes in Greece, Portugal and Spain. Likewise, after the Second World War, a similar process took place in Austria, Italy and Germany. For this reason the following discussion of constitutional justice in post-authoritarian regimes is pertinent to the recent developments in Eastern Europe. This institutional revolution can be understood in terms of a simple and more or less unified model. The idea is straightforward: each of the European states is committed to maintaining parliamentary authority over the executive and judicial departments. And, as a matter of sociological fact, each of the post-authoritarian states exhibited distrust either of the judiciary (in the post fascist states) or the parliament (in France) or both. Each therefore chose to introduce a model in which constitutional review of parliamentary actions would take place in a specialized court, outside the judicial system. That model, because it puts some legislative policy making in the hands of constitutional courts (and not merely negative legislative authority as Kelsen himself was forced to admit), places the additional burden of legitimation on those courts. To some extent the burden of legitimation can be addressed by insulating the justices from political pressure and by permitting them to craft procedures (such as holding sessions in private, issuing opinions on behalf of the court, etc) that produce impartiality or the appearance of impartiality. But, beyond these more or less structural assurances, constitutional courts need to provide reasoned justifications for their decisions. We argue, in short, that constitutional courts face special and demanding deliberative expectations. In fact, to some extent, these expectations are embodied in the constitutions that created these courts. For example, the organic law of the Fifth French Republic regulating its procedures requires that the Constitutional Council provides a reasoned justification for its holdings. In Political Liberalism, John Rawls described courts as exemplary deliberative institutions—forums in which reasons, explanations, and justifications are both expected and offered for coercive state policies. The authority of courts is supposed, on this view, to rest in large part on the qualities of judicial reasoning—reasons linking court decisions to legal or moral authority—especially since courts as institutions lack democratic credentials and often lack the means to implement their decisions. So, deliberation and reason-giving seem especially valuable (and familiar) aspects of adjudication. If, therefore, we are trying to locate the institutions where reasoning and deliberation play an important role in public life, it is apt to begin with courts and especially with courts dealing with constitutional issues. In this chapter, therefore, we compare European and American constitutional courts as deliberative forums. We argue that constitutional courts are very differently situated in various political systems. They are asked different kinds of questions by different political actors, and are faced with different expectations, histories and cultural and political constraints. In view of this diversity of circumstances it is to be expected that constitutional courts adopt different kinds of deliberative practices even when treating quite similar issues. Still, despite the diversity, we think there is an important sense in which each of the constitutional courts we examine—the French, German, Italian, Spanish and U.S. courts—have retained the exemplary deliberative character that Rawls describes.

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  Burden of Proof Under the CISG

  Franco Ferrari

  Despite a recent court decision stating that the 1980 Vienna Sales Convention on Contracts for the International Sales of Goods (CISG) constitutes “an exhaustive body of rules,” the contrary is true. The CISG does not deal with all the issues that arise from international sales contracts. This can be easily derived from the text of the CISG itself. For instance, Article 4 states, on the one hand, that the CISG governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer and, on the other hand, except as otherwise expressly provided in it, that it is not concerned with either the validity of the contract, any of its provisions, any usage or the effect the contract may have on the property in the goods sold.' This provision is not the only evidence that the CISG is not an exhaustive body of rules. According to Article 5, the CISG does not apply to the liability of the seller for death or personal injury caused by the goods, something a recent German court decision apparently overlooked when it awarded damages to a buyer who had to compensate its own buyer for having been injured by the goods sold. These issues, as well as all the other issues that are excluded from the CISG's sphere of application (which have been referred to as “external gaps,” “lacunae praeter legem” or, simply, “issues not governed by the CISG”), must be distinguished from the matters governed by the CISG but which are not expressly settled in it (which have been referred to as “internal gaps” or “lacunae intra legem”). This distinction is necessary since different types of gaps are dealt with differently. Whereas the “external gaps” are to be filled by resorting to the “law applicable by virtue of the rules of private international law,” the internal gaps “are to be settled in conformity with the general principles on which the Convention is based.” Only where internal gaps cannot be settled in conformity with the general principles on which the Convention is based should recourse to the law applicable by virtue of rules of private international law be possible. Unfortunately the CISG gives only little guidance in order to distinguish between the aforementioned types of gaps. Thus, it is no surprise that in respect to some issues there is a dispute as to whether or not they are governed by the CISG. This is true where burden of proof is concerned, attracting the attention of many legal writers in recent years.

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  Antitrust's Goals: Theories of Antitrust in the United States and Japan

  Harry First

  Antitrust law, as it has developed in the United States over the past 110 years, has been firmly focused on particular disputes. Litigants bring their disputes over particular business practices to courts to determine whether these business practices violate the law and whether they cause any injury. Courts have then been required to understand the factual context of these disputes, to understand how industries function and the reasons why the parties have engaged in the disputed transactions. This has been true from the great Standard Oil monopolization litigation in the early part of the 20th Century to the great Microsoft monopolization litigation at the century's end; it has been true of the price-fixing cartel of Socony-Vacuum and of the advertising restrictions of the California Dental Association; it has been true of the distribution restraints of the Dr. Miles Medical Company and of GTE-Sylvania. But while it is true that antitrust has been focused on facts, it is also the case that antitrust has been animated by theory. By “antitrust theory” I mean the effort to assess the purposes or goals of antitrust and to construct a framework for analyzing antitrust disputes which will be consistent with those purposes. Antitrust theory may have varied over the years in the United States, but no set of “facts” could be evaluated without a theoretical organizing principal. Otherwise, courts would be swamped by the facts and would not know how to sift the relevant from the irrelevant, nor would they know how to judge the effect of the facts they “found”. In the first part of this essay I will discuss antitrust theory's development in the United States, including the “new antitrust” which is now taking shape. The second part will discuss the antitrust theory that animated the original drafting of Japan's Antimonopoly Act, theory that could help Japan's antitrust enforcement today. In the concluding part I will offer some observations on the similarities between the new antitrust in the United States and Japan's original intent and the extent to which antitrust theory may be important in the coming internationalization of antitrust.

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  Pennzoil v. Texaco, 481 U.S. 1 (1987)

  Barry Friedman

  The clash of two commercial giants in Pennzoil Co. v. Texaco Inc. resulted in one of history's largest jury verdicts. By the time the case reached the Supreme Court, it involved a clash between two equally great legal principles: the availability of federal courts to protect federal rights, and the deference owed by federal courts to proceedings that are already underway in the state courts. In February 1984, Pennzoil sued Texaco in a Texas state court alleging that Texaco's offer to purchase Getty Oil had unlawfully interfered with an existing stock purchase agreement between Getty and Pennzoil. The jury returned a verdict for Pennzoil of over $10 billion. Texaco immediately filed suit in federal court in New York, claiming that the Texas verdict violated various of its federal rights; among them that the enormous cash bond required by Texas law to secure an appeal violated the Constitution. Federal courts rely on a doctrine called abstention to resolve the tension between opening the doors of federal courts to hear claims of federal rights violations, and proper respect for ongoing state court proceedings. In Pennzoil v. Texaco, the Supreme Court applied the doctrine of abstention to hold that Texaco's federal suit should be dismissed. This was the first time that the Supreme Court had ordered a federal court to abstain in a civil lawsuit between two private parties, sharply limiting the availability of federal courts to protect federal rights.