Faculty Chapters

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  The Evolution of EU Human Rights Law

  Gráinne de Búrca

  Gráinne de Búrca’s chapter analyses the evolution of EU human rights law in three distinct periods. The first is the period prior to the creation of the European Communities, when the human rights provisions of the draft European Political Community Treaty and its background materials were drawn up in the early 1950s. The second covers the period from the disappearance of human rights matters from European Community discourse with the adoption of the EEC and Euratom Treaties in 1957, until their re-emergence through the 1970s and 1980s in judicial and political discourse. The third covers the ‘high constitutional’ period from the adoption of the Maastricht Treaty in 1992 until after the adoption of the Lisbon Treaty in 2010, and reflects on what has taken place in terms of the development of EU human rights law between the time of the Lisbon Treaty and today. The chapter highlights three principal differences between the framework envisaged in the 1950s and that which is in place today, focusing on today’s much more limited monitoring, review, and intervention role for the EU with regard to human rights protection within the Member States, the more distant relationship between the EU and the ECHR and their respective courts, and the uneven role for human rights in the EU’s internal as opposed to its external relations. The chapter concludes by reflecting on whether the EU’s current constitutional framework for human rights protection is fit for purpose as we enter the third decade of the millennium.

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  Cultural Heritage and the Public Domain: What the US’s Myriad and Mayo Can Teach Oslo’s Angry Boy,

  Rochelle C. Dreyfuss

  At a high level of generality, intellectual property (IP) regimes are much alike. They grant exclusivity to promote socially desirable activity, be it creating goodwill and maintaining quality, producing expressive works, or inventing technological products and processes. Of course details differ, for each system must take account of the demands of the sector it governs. Thus the gravamen of a copyright claim—copying—would never be suitable for trademark law because trademark’s focus on diminishing search costs is inconsistent with allowing similar trademarks (even if independently produced) to confuse consumers. Similarly, trademark’s term of protection—which continues as long as the mark is in use—would not be suitable for patent law, where one generation’s output is the next generation’s input and the goal is to promote rapid progress. Still, as a theme of this volume suggests, IP regimes have much to teach one another. Even though convergence may not always be normatively desirable, each regime can learn from the experience of others. A case in point is the recent move to safeguard the public’s interest in using its cultural heritage by denying trademark protection to symbols, such as Gustav Vigeland’s Angry Boy statue, on public policy and morality grounds, or as Martin Senftleben puts it, on the basis of interests grounded in aesthetic theory. US patent law similarly curtailed the scope of protection in order to leave certain works—the building blocks of science—“free to all men and reserved exclusively to none.” Accomplished over a series of four Supreme Court cases, the limits imposed on patent eligibility have not fared well Incentives to innovate have decreased, uncertainty has increased, and there are now concerted efforts to revise the law. What the US is learning is that permissive rules on coverage, when coupled with exceptions protective of the public domain and access interests, form a far more nuanced—and effective—approach to reconciling public and proprietary interests. The same, it can be argued, is true for trademark law. This chapter begins with a description of the Vigeland decision to deny trademark protection in order to safeguard the public domain status of Norway’s cultural heritage. It then outlines the US experience with the analogous move in patent law and argues that the problems encountered in the patent realm could easily arise in the trademark sphere. Drawing on my earlier work, the chapter suggests that defenses that focus on the significance of trademarks in the marketplace of ideas represent a superior way to protect the public interest in enjoyment of the “surplus value” of trademarks—that is, their non-source identifying dimensions.

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  Foreword: The Complex Terrain of Intellectual Property Governance

  Rochelle C. Dreyfuss

  The concept for this book was formulated in 2018, long before the COVJD-19 pandemic was on the horizon. However, it could not have been published at a more opportune moment. The intense global efforts underway to find diagnostics; treatments; vaccines; and technologies for analysing outbreaks, testing medications, and tracing infected individuals raise precisely the question explored in this volume: how can patent rights be deployed to incentivize investments in researching and developing socially critical innovations without sacrificing the public's interest in sharing the benefits that are produced? The fascinating chapters included here examine this issue in four contexts, the life sciences, agriculture, artificial intelligence (AI) and information technology. Together, these contributions illustrate the many difficulties inherent in motivating invention while ensuring that its fruits are efficiently disseminated. Foremost among the problems are the many significant differences among innovations. Some, as Żaneta Zemła-Pacud describes, are revolutionary and fundamentally change the approach to particular technological problems; others represent modifications, improvements, or—as may be the case with many treatments for COVID-19—the repositioning of existing technologies to meet new needs. Some advances have acceptable substitutes; others, such as antibiotics, are needed because existing technologies have failed or are floundering. Some inventions deal with crucial social problems, like nutrition; others are aimed at more attenuated concerns, such as computer gaming. Some technologies are clearly beneficial, whereas others, such as the human enhancement technologies described by Helena Żakowska-Henzler, are potentially dangerous or morally ambiguous. Second, there are distinctions in how the period of exclusivity interacts with demand for a patented advance and its rivals. In some cases, the patentee can obtain benefits for the entire term of protection because the market is poised to immediately use the invention. But, as with pharmaceuticals, marketing may be delayed by the approval process or, as for computers and AI, it may take the public a long time to understand the value of the innovation and begin to purchase it. By the same token, there are innovations that rivals can make immediately available upon patent expiration, but in other cases, such as where competitors also need market approval, the patent term may be followed by a period of de facto exclusivity. Additionally, the markets for some innovations are inherently large. For example, the entire planet must be vaccinated against the coronavirus. However, some markets are naturally limited, either because the population that needs the invention is small or because few of the many who need it can afford to pay supra-competitive prices. Examples mentioned in the book include treatments for neglected diseases and plants bred for particular environments. In addition, as Justyna Ożegalska-Trybalska's chapter points out, there are significant sectoral differences. In some fields, such as pharmaceuticals, innovation is risky and significant investments may be necessary. In those areas, inventors require a long period of protection from free-riding competitors to capture an adequate return. In other sectors, the argument for patent protection is weaker. For example, in computer technology, where upfront costs are lower, innovation entails less risk. Moreover, there are mechanisms such as network effects, licensing and servicing possibilities, or in-app purchases that prolong lead time or provide sufficient compensation in other ways. There are also fields where user-innovation (innovations developed by users for their own needs) is common and therefore external rewards are less important. Thus, as Juan Antonio Vives-Vallés notes, farmers are also breeders; they can often benefit directly from their inventions. There are also subject areas where inventions may be found in Pasteur's Quadrant, that is, where an advance is simultaneously a fundamental scientific discovery (e.g., the discovery of the genetic cause of a disease) as well as a technological application (the diagnostic for the disease). Although the discovery may be one innovator's output, for which it seeks a financial return, for other researchers, it is a necessary input. Geertrui Van Overwalle's contribution illustrates how this duality can affect progress in the agricultural sector. As the contributions of Dieter Kamiah and Rafał Sikorski suggest, an analogous dynamic operates in the ICT sector, where concerns about interoperability can require that rivals use one another's patented technologies. These differences—among advances, in the relationship between demand and the period of protection, and among technological sectors—clash with the transsubstantive nature of patent legislation. These laws are drafted abstractly in order to ensure that they readily apply to every conceivable technical advance. As a result, they do not generally make any of these critical distinctions. Thus, one of this book's key contributions lies in exploring the mechanisms for dealing with the friction between generalized application and specialized concerns.

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  Hedging Bets with BITS: The Impact of Investment Obligations on Intellectual Property Norms

  Rochelle C. Dreyfuss

  This chapter argues that bilateral investment treaties (BITS) and free trade agreements (FTAs) erect a high hedge around intellectual property rights, protecting them from the impact of state regulation. Two investor-state dispute settlements (ISDS) involving IP have been resolved by final award. In both cases, the state prevailed, suggesting that the hedge may not be as impenetrable as had originally been feared. However, the chapter contends that this view is mistaken. While the awards in the decided disputes may close the door on specific contentions, they invite further challenges and maintain the heavy shadow that the hedge provided by ISDS casts on state action. In order to trim that hedge, it will be necessary for the drafters of investment obligations and the tribunals that hear ISDS disputes to take into account the intangibility of IP rights in determining when IP is sufficiently localized in a host state that it should be considered protectable by that state's investment obligations. The chapter then explores ways to trim ISDS, including the possibility of using ISDS as a mechanism for building counter-norms—hedges that protect the public and its regulatory interest.

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  Investor-State Dispute Settlement as a Constraint on Intellectual Property Lawmaking

  Rochelle C. Dreyfuss

  This paper addresses the question whether the tribunals that entertain investor-state disputes under bilateral and regional investment agreements contribute to the development of intellectual property law. It answers the question in the negative, arguing that to the extent these tribunals “make” law, the laws they make constrain the evolution of intellectual property-related lawmaking. Vulnerability to investor suits chills domestic efforts to deal with cumulative innovation; to balance the proprietary interests of innovators with the needs of the public to access the fruits of innovation; and to react effectively to changes in technology and to crises, such as pandemics, that require rapid readjustments in rights over information. After discussing the problems with investor-state dispute settlement under current investment agreements, the paper considers whether newer instruments, which are intended to be more protective of sovereignty, in fact give states the freedom they require to keep intellectual property responsive to society’s needs.

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  Freedom of Expression in the Workplace

  Cynthia Estlund

  This chapter addresses the implications for democratic government of employment-based limitations on freedom of speech. The workplace is a distinctive expressive domain because the ‘censor’ and the speaker are typically bound together by an employment contract that affords the former a large measure of hierarchical control over the latter. The employer, having hired the employee to do a job, has legitimate interests in regulating some employee speech. The employee, for their part, is typically dependent on the employer for their livelihood, and vulnerable to the employer’s overreaching beyond those legitimate interests. Those features of the employment relationship give rise to a distinct set of questions about the value and limits of free speech in the workplace setting, public or private. The chapter then focuses on how US law, primarily constitutional law but also non-constitutional law, has dealt with those questions. While the US law governing freedom of expression in the workplace is unique in some ways, the problems it deals with will arise in any society that both recognizes the value of freedom of expression and channels labour into the production of goods and services largely through the institution of employment.

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  What Should We Do After Work? Automation and Employment Law

  Cynthia Estlund

  Three major threats to American jobs have grabbed headlines in recent years, One is the migration of manufacturing jobs to China, as perhaps best exemplified by Foxconn, the Taiwanese firm that employs over a million Chinese workers in the production of iPhones, iPads, and other consumer electronics, To labor-law cognoscenti, the outsourcing of manufacturing to China, and the feared "race to the bottom" in labor standards, is mostly yesterday's news. Since 2015, they have been more preoccupied with a second development—the rise of platform-based "gig" work in place of real jobs, epitomized by Uber's treatment of its drivers as independent contractors rather than employees. Yet both of these threats to American jobs and workers arguably pale beside the threat of automation. If Uber has its way, its drivers will soon go the way of lamplighters, replaced by self-driving vehicles. And if Foxconn is representative, then Chinese factory jobs are also at risk: by 2016, Foxconn had replaced 60,000 production workers with robots and was planning to replace most of the others within several years. For some observers, Uber's autonomous vehicles and Foxconn's robots are harbingers of a jobless future, as machines and algorithms threaten to put vast swaths of the labor force in the United States and worldwide out of work or into desperate competition for the jobs that remain. These commentators describe an exponential growth of technologies that replicate or surpass humans in an ever-wider range of tasks. Putting aside the more fantastical predictions about artificial intelligence (Al) dominating or even devouring its human creators, the prospects for job destruction are eye-opening. Robotic and digital production of goods and services, coupled with advances in AI and machine learning, is poised to take over both routine or repetitive tasks and some more advanced tasks. In one much-cited reckoning, nearly half of the jobs in the current economy are at risk. Although some new jobs are readily foreseeable- especially skilled jobs working with technology—no large new sectors or industries yet visible on the horizon appear likely to absorb the multitudes of human workers who might be displaced. Within this camp, predictions range from a tsunami of job losses to a more manageable rising tide. For other observers, the real threat from automation is not a net loss of jobs but growing polarization of the labor market. These observers note that automation generates large productivity gains and profits for some, while destroying many decent midlevel jobs. They predict a growing economic chasm between those who create or own the new technology, or whose high-end skills are complemented by that technology, and most workers who are stuck competing for the less-skilled but still human jobs that remain. In this scenario, labor shortages in some skilled-job categories will coexist with labor surpluses and downward wage pressure outside those categories.

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  Achieving Antidiscrimination Objectives Through "Safe Harbor" Rules for Cases of Chronic Hiring Aversion

  Samuel Estreicher

  As a general matter, we have pursued antidiscrimination goals through standards rather than rules. This is understandable because discrimination is normally a motivation—or intention—based inquiry. In the employment context, the law does not bar employer discipline or staff reductions; these are routine activities that the law does not ordinarily take cognizance of. The law generally bars such employer actions only when they are improperly motivated. Improper motivation or intention acts as an impeaching factor. In this manner, the tension between regulation and employer control of the workplace is cabined and minimized because discriminatory motives are thought to be counterproductive, simply unnecessary to achievement of legitimate business objectives. From the standpoint of employer prerogatives, the antidiscrimination command appears as a form of virtually costless regulation. Similarly, hard-and-fast rules are not relied on extensively in antidiscrimination law. There are two principal reasons for this legal-design preference. First, rules may under-enforce and over-enforce either because the rules are set too leniently or are set too stringently. It is difficult for the legislator or other policymaker at the outset to determine what is needed to achieve the antidiscrimination objective and what roadblocks will be encountered. Especially where it is difficult to revise legislation once enacted, delegating standard-setting to an administrative agency promotes a mechanism for fine-tuning the regulation. A second reason for preferring standards over rules is that rules will tend to make manifest the costs of regulation, that is, to highlight the interference with employer decision making that regulation entails. Such transparency may chill political support, and, hence, legislator willingness, to advance the regulatory scheme. From this political-economy standpoint, it may be far better to announce a standard—e.g., "thou shall not discriminate on the basis of race or gender, etc:"—and thus broadly delegate to the administrative agency or the courts the task of working out the actual rules through case-by-case determinations that will seek to control or influence behavior. Some aspects of antidiscrimination law reflect a mix of both approaches. For example, the disparate impact theory, or what Europeans call "indirect discrimination;' sets a standard, not a rule, but one that is purportedly based on objective factors: does the employer practice have a disproportionate impact on a statutorily protected group, such as blacks or women, and, if so, can the employer demonstrate that the practice is job-related and justified by business necessity. The employer's good faith does not provide a defense and its good or bad motivation is generally irrelevant to the inquiry. Similarly, in the "bona fide occupational qualification" (BFOQ) context, the inquiry is based on the employer's motivation, but there is a strong presumption of a violation because the employer has been shown to have been motivated by an improper group classification. The BFOQ concept allows only a very narrow defense in limited circumstances where race, gender, or other prohibited characteristic may have an especially strong predictive power and where the "essence of the business" cannot be served by other means. These exceptions are few and far between. The dominant approach of antidiscrimination law is to establish a standard of nondiscrimination and to attempt to implement that command by motive-based inquiry in agency or court adjudications. Some agencies have rulemaking authority but the rules tend to be broadly framed without further specifying the regulatory command.

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  Equitable Health Savings Accounts: Bridging the Left-Right Divide

  Samuel Estreicher and Clinton G. Wallace

  Polarization of the two major political parties reflects in part their differing views of the value of reliance on market forces. The parties disagree as to whether government can play a useful role in setting ground rules for competition and redistributing resources from the wealthy to less well-off groups. On the progressive side are those who focus on egalitarian outcomes, and thus advocate for social policies that redistribute resources downward from the top economic rungs. On the market libertarian side are those who focus on efficiency and advocate social policies that minimize tax burdens and government intervention. Democrats are generally—and increasingly—more aligned with the former, while Republicans are generally more aligned with the latter. This left-right divide also characterizes debate over healthcare policy. One recent manifestation of this ideological divide is Republican advocacy for, and Democratic resistance to, Health Savings Accounts ("HSAs"). Current policy provides a tax deduction for contributions to HSAs made by individuals and families enrolled in certain high-deductible health insurance plans. Investment gains on funds in an HSA account are exempt from taxation; the accounts are intended to cover medical expenses and can be used for some other purposes as well. Republicans have made HSAs a centerpiece of various health reform plans, including proposals debated during their 2017 effort to repeal the Affordable Care Act ("ACX'), a 2018 bill endorsed by Republicans on the House Ways and Means Committee, and the healthcare reform agenda recently produced by the Trump administration. But Democrats remain steadfastly opposed to expanding HSAs on distributional grounds. They argue that HSAs primarily benefit higher-income people who are able to use HSAs as a vehicle for tax-preferred savings.

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  The Interplay of Autonomous Concepts and Municipal Law Under Article V(1)(d) of the New York Convention

  Franco Ferrari and Friedrich Rosenfeld

  This chapter addresses the interplay of autonomous concepts and municipal law in the context of Article V(1)(d) of the New York Convention. Pursuant to this provision, a court may refuse to recognize and enforce an arbitral award if “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.” Article V(1)(d) of the New York Convention sets forth two scenarios where an arbitral award may be refused recognition and enforcement. The first is where the parties have agreed on the arbitral procedure or on the composition of the arbitral authority and this agreement was disrespected. The second is where no such agreement was formed, and the arbitral procedure or the composition of the arbitral authority was not in line with law of the country where the arbitration took place. Thus, on a plain reading, one might get the impression that there are only two bases—party autonomy and the law of the seat—for a court to refuse recognition and enforcement under Article V(1)(d).

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  Digital Platforms and Competition Policy in Developing Countries

  Harry First

  Big tech platforms have become a subject of intense antitrust scrutiny in developed economies, most recently in the United States. The thesis of this chapter is that the power of platforms is not just a first world problem, however, but is also an issue of importance for competition policy in developing countries. These platforms present different costs and benefits for developing countries than for developed countries; in particular, the major big tech platforms have become important tools for further digital platform innovation in developing economies. The chapter begins with a discussion of the connection between competition law, innovation, and development. The chapter then discusses how digital platform technologies are employed in Africa in four areas—online retail sales, value chains, financial technology products (fintech), and sharing platforms. The chapter concludes with a discussion of the lessons these developments have for competition policy in developing countries.

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  Introduction

  Eleanor M. Fox

  It is my great pleasure to write the introduction to this monumental new book by Gönenç Gürkaynak. It is a special pleasure not only because the book is an extraordinary, incomparable treatise that is sure to make its mark in explaining and even guiding the competition law of Turkey and beyond, but because this is the twentieth anniversary of my meeting its remarkable author, Gönenç Gürkaynak. I first met Gönenç when he was a dripping wet young Harvard graduate student arriving at my house in a sudden downpour accompanying his wife-to-be Serra, who was my student at New York University School of Law. Since then, I have watched Gönenç’s illustrious career begin and blossom. I observed his contributions to and influence on the competition community around the world. I watched and admired his forming his own competition law firm and building it into one of the finest in Turkey and a player in the world. I admire his being not only a practitioner and advisor but a scholar and teacher, and certainly not a technocratic competition-law-only expert but a constitutional and civil rights expert concerned with human rights and free speech. The publication of Gönenç’s Turkish Competition Law is an event of moment. The book is an all-encompassing treatise. It is the first treatise of its kind on the entirety of Turkish competition law. It spans all matters of Turkish competition law, from practical details and procedures to institutions, to all aspects of substantive competition law with nuances of analysis, to guidelines and other guidance as well as the cases that light the path.

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  Punishment and Comparative Political Economy: An Exposition and Critique

  David W. Garland

  This chapter is an exposition and critical assessment of Nicola Lacey’s work on punishment and comparative political economy. It traces the trajectory of Lacey’s work, describing how she was the first to bring the ‘varieties of capitalism’ framework to bear on the central questions of comparative penology and how she then proceeded to use an expanded version of the framework to develop an original explanation of American penal exceptionalism. The chapter then seeks to assess Lacey’s work by examining the theoretical fit between her political economy framework and the institutional characteristics of systems of criminal punishment, paying particular regard to the causal mechanism hypotheses that underpin her account.

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  Teaching Philosophy at Mandel

  Moshe Halbertal

  In my years of teaching I have had the privilege of working in a variety of institutions of higher education and addressing diverse audiences both in Israel and the USA. I have come to appreciate the deep impact such diversity has on the nature of the educational experience, and the ways the art of teaching and learning is structured in each very different context. Israeli students, for example, are less “professionalized”; you can't assume that all of them come fully prepared to class, that they have read the materials ahead of time, or that their writing assignments will be completed in the standard protocol of research papers. They are, on the other hand, mature and expressive; they tend to be independent, and they participate with intensity. Their American counterparts are much more professional in their attitude and habits. They are prepared for class and are well trained in writing and structured argument. Their mode of articulation and self-presentation radiates competence. The students in this respect mirror their respective general cultures; Israelis compensate for lack of professionalism with resilience, inventiveness and improvisation, sometimes at the cost of arrogance and shallowness, an attitude which Americans would not tolerate for their own good reasons. Professionalism insures a certain level of competence that doesn't rely particularly on great talent, though such talent might be abundant. A decent physician who follows the protocol will do well even if he or she is not particularly outstanding, though too much emphasis on professional protocol might harm the upper echelon of physicians. It is for reasons such as this that the gaps in Israeli classrooms, in general, could be quite wide, as is the case with everything that the country does. Such looseness of structure might be beneficial to the small upper level of the class, but lack of standards harms the middle level of the class a great deal. In an important way the different attitudes between the students are grounded in a deeper contrast of geopolitical standing and cultural traditions. The contrast is between a small country that is dependent on its wits and ingenuity to survive and excel, and whose population is not accustomed to civic traditions, and a vast great empire with a strong civic bond formed within a sense of constitutional order and freedom which aims at securing the promise to reward effort with success. One such experience of a uniquely striking educational context can be found in my years of working with a succession of cohorts of fellows in the Mandel School for Educational Leadership (MSEL), which are completely different from anything that I have ever encountered. I want to reflect on what the Mandel teaching experience has meant to me and what I have learned from this encounter as a teacher and as a philosopher. A good starting point to describe the uniqueness of the context is the extraordinary heterogeneity of the Mandel class. A typical Mandel class represents the best of the fractured Israeli society. It consists of Palestinian Israelis (both Muslims and Christians), Religious Zionists from the right—sometimes settlers, ultra-Orthodox men or women, Modern Orthodox Jews—usually from the Jerusalem area, and fellows that are drawn from Israel's full variety of traditional and secular streams—the kibbutz, Tel Aviv, or the progressive movements of Israel on the left. By way of contrast, in an ordinary class at the university, I rarely have Palestinian Israeli students or ultra-Orthodox students, and its make-up is far more predictable. It is important to distinguish the heterogeneity of the Mandel class from the way ethnic, racial and geographical diversity is expressed in the American classrooms I have encountered. The diverse ethnic student body in the US does indeed encompass different groups, but at least in the public sphere of the classroom they seem to share more or less the same ideological stance and value commitments. Students who happen not to share the liberal consensus of the class, such as Christian conservatives, usually tend to keep silent. In the case of the Mandel class, its heterogeneity consists of radically opposing ideological commitments which touch upon the most basic features of Israeli or Jewish identity. Differences are radical and stakes are high. The Mandel class is also a coherent working entity unlike classes elsewhere. I might teach a seminar at the university with the same size as the Mandel class, but students might find themselves together in a seminar once in three years. Mandel fellows share an intense study environment for two years, which insures that they cannot live together in their radical diversity by ignoring the differences amongst them. It is for this reason that each Mandel class has a personality of its own. This personality is shaped, among other factors, by the way the group has managed to live in diversity and to navigate the radical differences among them and the way these differences impact the most basic fabric of their human interactions. When I enter a Mandel class I know that it already has a past and will have a future; I join the life stream of a group at a certain moment of their ongoing engagement.

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  The Nature and Purpose of Divine Law

  Moshe Halbertal

  This approach to Divine Law that Maimonides diagnoses as rooted in sickness of the soul has its source in a deep religious impulse and sensibility. Such an outlook assumes that providing humanly useful reasons for the commandments empties them of their religious meaning. Divine Law, if it has its source in a God who transcends humanity, must be inscrutable. Even more so, the religious meaning of fulfilling God’s commandments ought to be manifested in the surrender of the human will to the divine will. Worship is constituted as obedience, and such an obedience in principle cannot be in the service of human aims. It is not only the case that humans are incapable of approaching God’s mind and understanding His commands, but rather, the ascription of reasons to God’s commandments runs against their very purpose. The only reason for obeying a commandment is that God commanded it, and any attempt to harness such commandments to foster human aims would taint and undermine their purity as religiously motivated acts. This view is considered by Maimonides as that of sick souls since it constitutes an arbitrary God who commands with no reason, and it posits a human worshiper engaged in meaningless obedience. Maimonides provides a radical and thoroughly anthropocentric alternative to the meaning and end of Divine Law. Divine Law has a reason, it aims at human flourishing and it guides humans to achieve their ultimate perfection.

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  Economic Perspectives on Free Speech

  Daniel J. Hemel

  This chapter explores the potential for economic analysis to illuminate freedom of speech. For early scholars of law and economics, the similarities and differences between the metaphorical marketplace for ideas and literal markets for goods and services were subjects of much attention. The chapter then argues that information economics has the potential to explain failures in the ‘marketplace of ideas’. Just as information asymmetry in the market for goods and services allows low quality goods and services to drive high quality goods and services out of the marketplace, there is reason to think that ‘bad speech’ will tend to drive out the ‘good’. For good information to compete in the market, readers and listeners must be able to tell the difference between good and bad information—an idea with particular resonance in the age of ‘fake news’, and with potential implications for the design of free-speech laws.

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  Expertise, Trust and Accountability in Food Safety: The Evolving Role of the World Trade Organization—A Case Study of the Japan-Korea Dispute over the Fukushima Nuclear Disaster

  Robert L. Howse

  Distrust of expertise, and rejection of the authority of experts, are often presented as symptoms of rising ‘populism’, a reflection of ominous irrationality in public discourse. But the area of food safety has long been marked by tensions between public perception of risk and citizens’ demands for risk control, on the one hand, and expert judgment and authority, on the other. At the level of global governance, the World Trade Organization has been front and centre in these battles. The post-war arrangement for multilateral trade, the General Agreement on Tariffs and Trade, protected regulatory diversity. This chapter considers the food safety dimension of the risk crisis arising from the nuclear disaster in Fukushima, Japan. In the context of Fukushima, as with Chernobyl, revelations of gross irresponsibility and widespread deceit by government officials and by those responsible for the nuclear power plant operation, doubtless compounded distrust of government-proffered expertise regarding the safety of the food supply, including seafood.

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  Green Industrial Policy and World Trade Law

  Robert L. Howse

  Green industrial policy is a response to the mispricing of carbon (failing to account for externalities); price signals are inadequate to spur a socially optimal level of investment in renewable technologies. From the perspective of world trade law, green industrial policy becomes problematic where states combine “greening” objectives with the traditional industrial policy ones of creating local jobs and boosting local industries. This latter aspect is apt to be viewed as protectionism.

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  From Constitution Making to State Building: The Washington Administration and the Law of Nations

  Daniel J. Hulsebosch

  When Gouverneur Morris observed in a letter to George Washington that “no constitution is the same on paper as in life,” he sent a warning and a call to action. The Philadelphia convention had submitted the proposed constitution to the states one month earlier. States were just beginning to organize conventions to consider whether to ratify it. Already, however, Morris was looking beyond debates about the document’s meaning and toward actual governance. It was a plea, of course, for Washington to hold himself up for the office of the president. But Morris’s goal was not just to place the right man in the right office. Federal officials would also have to share the right goals when turning the Constitution into a government. Strong text was not enough. Neither was good personnel. State building required establishing habits, customs, and precedents that would embed the constitution makers’ purposes into the institutions of the federal government. There was a large consensus about the most general purposes, and not just among Federalists. Twin goals widely shared across the revolutionary generation were to keep true to republican government while also forming a “civilized nation” that would be respected abroad, across Europe of course, but especially by the foreign polities surrounding the United States. The desire for respect was partly instrumental: diplomats and merchants across the Atlantic world closely monitored government developments in America to gauge the faith and reliability of the revolutionary states. It was also, however, existential: many revolutionaries, Federalists especially, sought “recognition” under Enlightenment standards for their new nation, as well as for themselves. The standards of that civilization and many means for achieving it were located in the law of nations: in treaties, such as the United States had by 1787 negotiated with France, Britain, and several Native American nations, as well as in the customary law of nations. Together they formed, as Federalist jurist James Kent instructed his law students at Columbia College in 1794, “that system of rules which reason and custom have established among the civilized nations of Europe.” The Washington administration repeatedly invoked those rules to make good on the promise of “civilized” governance. A primary goal was to answer long-standing European criticism of its faithless behavior and, having done so, then demand full recognition and respect for its equal status as a nation. A related failure was the confederation’s inability to negotiate effectively with Native American nations. Here too, treaties could be made but not kept. In both cases—European and Native American diplomacy—the state governments were not the only source of the problem. British merchants and consular officials routinely faced harassment in the seaports, adding support for hard-line approaches to American commerce among policy makers in London. Deadlier violence characterized the West, where American citizens streamed onto land held and claimed by Native American nations. To manage both of these problems, the administration strove to rely on conventional rules and norms of the law of nations to demonstrate American compliance, complain about European and Native American violations of American rights, and enjoy all the powers to carry out war and commerce as well as, in the words of the Declaration of Independence, “all other Acts and Things which Independent States may of right do.” The reverse side of national self-discipline was, therefore, federal strength. The agents enforcing compliance with treaties and the customary law of nations were federal officers, and the primary targets were American citizens as well as representatives of foreign powers. All this fit a larger trend of the nationalization of power for the purpose of demonstrating American competence and respectability as a nation, secure the territory ceded by Britain, and gain the commercial benefits of Atlantic trade and financing. The Constitution’s text was not a cipher. It provided key scripts and directions. But much actual state building was improvised. The text did not provide answers for many of the questions that bombarded the federal government. It did not always even clarify who should answer those questions. Because problems often landed first on the desks of the only federal officials always in session—the executive—President Washington and his advisors took the lead. And while striving to act and be seen like a nation, federal officials in the Washington administration engineered innovations that further entwined the new Constitution with the law of nations. Improvisation in pursuit of respect and prosperity within the Atlantic world was not the only motive driving American state builders to innovate on the law of nations during the 1790s. Some sought a revolution in the way nations interrelated that would extend their own struggle against imperial restraint to the entire Atlantic world, change what it meant to be a civilized nation, and yield even greater prosperity. Like the earlier revolution, this one targeted the British Empire. Thomas Jefferson and James Madison, in particular, viewed Britain as a stronghold of retrograde and dubious interpretations of the law of nations. They championed instead innovations that drew on Enlightenment-era trends in the law of nations as well as undertheorized imperial practices to reform that law, including what Jefferson called “a jus gentium for America.” Two examples included liberal commercial rules in war and peace that would foster free trade and a countervailing claim to enjoy a monopoly on commercial and diplomatic relations with indigenous people within US territory—the context for Jefferson’s claim that there was in fact an American law of nations. These two strands of American argument about the law of nations—the pursuit of full national recognition under the existing regime and revolutionary challenges to that regime—were tightly entwined in early federal state--building projects. All the leading state builders, whether they leaned toward conventional or revolutionary approaches to the law of nations, referred to the same sources of authority: European treatises and admired treaties, as well as a transnational stock of legal understandings, or customs, about how governments were supposed to operate at home and abroad. Similarly, some of them, like Jefferson, invoked both strands, sometimes at the same time but with different people. Finally, the law of nations had legitimating power not just within the new, relatively weak United States. It provided the idioms and grammar of power across the Atlantic world, and foreign nations demanded that the Washington administration comply with it. But Washington and his officials could also use the law of nations to defend themselves against encroachments on their independence and then frame their own imperial projects within its terms. The law of nations, old and new, permitted the United States to harness the energy of its revolution while forging what was supposed to pass as a “civilized” nation.

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  Mirror for Presidents: George Washington and the Law of Nations

  Daniel J. Hulsebosch

  Is the president bound by law? If so, how? These are historical as well as modern questions, and they are questions that the first president, George Washington, asked himself and his advisors throughout his eight-year administration. As he and they marked the boundaries of the executive under the spare text of the new federal Constitution’s Article II, they used the law of nations to fill the gaps and define key powers. Enlightenment-era jurists like Emer de Vattel intended their treatises to function as updated versions of the traditional “mirror for princes,” or advice books for European rulers, and that is how the president and his cabinet read them. Just as throughout his life he had turned to self-help books to make his way in the world, Washington turned to Vattel to learn how to govern—not just how to govern other people, but more importantly how to govern with other people at home and abroad. The early modern law of nations not only provided stage directions, showing an actor how to behave among others. It also contained working scripts to borrow. Vattel in particular emphasized jealous territorial sovereignty and open commercial intercourse, and striking the balance between them was, in Washington’s eyes, the main task of his presidency.

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  Courts as Guarantors of Democracy

  Samuel Issacharoff

  This chapter discusses the judicial oversight of democracy. Three cases indicate how courts act as guarantors of constitutional democracy, suggesting ways they could react to current populist challenges. First, from India, the basic structures decisions set forth the principle that certain constitutional changes, even if procedurally proper, can go too far in undermining the fundamental character of a democratic order. This series of decisions also claims for the judiciary the power and duty to judge when an amendment oversteps this line. Next, the South African Constitutional Court's decision rejecting the draft constitution to replace the apartheid system establishes that protections against untrammelled majority rule are among these basic features of constitutional democracy. Last, a decision of the Constitutional Court of Colombia to disallow a president from running for a third term goes to how courts can protect competition in the political process. Rejecting a properly enacted constitutional amendment that would have permitted a president to run for a third term, the Court feared lack of rotation in office would chill political debate and contestation. Together, these decisions articulate a distinct challenge for apex courts confronting a challenge to the democratic process itself.

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  Human Rights in a Use Case World

  Benedict Kingsbury

  Digital engineers diagram ‘use cases’ to design software, based on practical needs of the quotidian product user rather than big normative claims. Human rights lawyers work in the reverse direction, starting from principles of universal application then applying these to hard cases. These two modes of thinking and practice have existed separately. Digital automation of government services using algorithms and AI is bringing them abruptly together and into mutual learning. The chapter examines controversies and court decisions over digital welfare state programmes in Australia (Robodebt), the Netherlands (Syri), and the United Kingdom (Universal Credit), highlighted by Philip Alston as UN Special Rapporteur. The normative practice of human rights must grapple with data concentration and computerized decisions wherever power is exercised. The chapter proposes ‘thinking infrastructurally’ as a path to bring human rights thinking into the fast-escaping public–private practices of algorithmic government and machine learning.

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  Should Human Rights Practice Be Rights-Based?

  Sarah Knuckey and Margaret L. Satterthwaite

  Human rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to a vast array of policy areas and challenges, from climate change to housing, poverty, development, humanitarian response, and health policy. HRBAs promote rights fulfilment as a core goal, call for the identification of rights and obligations along with their correlative rights-holders and duty-bearers, and advance the principles of participation, accountability, equality, and non-discrimination. Yet, curiously, human rights actors do not commonly describe their own human rights investigation and advocacy practice and methods as ‘rights based’. Perhaps this is because it seems self-evident that human rights practice itself would be based in the human rights approach. Assessment of the entitlements of rights-holders and the obligations of duty-bearers is of course at the core of much human rights work. But rights-based approaches require much more than that. They advocate for work to recognize and promote the universality, indivisibility, and interdependence of rights, and to advance equality and non-discrimination. Importantly, HRBAs also seek to promote a way of working in which organizations are accountable to those most directly affected by human rights abuse and advocacy—rights-holders— and in which rights-holders and other key stakeholders participate in, own, and are empowered by the human rights work itself, rather than re-victimized, objectified, or marginalized. The approach aims to recognize, centre, and grow the agency and power of rights-holders over the conditions affecting their lives. However, especially on the HRBA process principles and rights-holder participation and empowerment goals, the human rights field far too often falls short, and some commonly used human rights advocacy practices undermine these ideals. Were HRBAs adopted by human rights organizations, the face of human rights advocacy would change—often dramatically—as rights-holders would be empowered to claim their own rights, becoming advocates themselves, and advocates not directly affected by the abuse would be re-cast in roles of support and solidarity. In this chapter, we argue that the human rights-based approach has been exported to many fields without ever being sufficiently integrated within human rights advocacy practice. This assessment is offered in the spirit of ‘introspection and openness’: as both scholars and human rights practitioners, we agree with Philip Alston that the challenges facing human rights today require us to ‘urgently rethink many of [our] assumptions, re-evaluate [our] strategies, and broaden [our] outreach, while not giving up on the basic principles’. Indeed, it is necessary to turn those principles back on ourselves, and to undertake a reckoning with whether human rights work is itself sufficiently rights based. Motivated by the leadership of rights-holders we have worked with and cognizant of the urgent need to end top-down approaches to human rights, we offer this chapter as an invitation to further discussion. This chapter first briefly traces the development of the ‘rights-based approach’, explains its key principles, outlines its implementation in other fields of international practice, and sets out key critiques of the approach. We then examine the rights-based approach in human rights practice, focusing specifically on human rights work by outside advocates—that is, advocacy carried out by practitioners not based in the community experiencing the violations at issue. We find that, although it is difficult to generalize across an enormous and heterogenous field, there is little formal, explicit use of the HRBA among human rights organizations. The substantive rights-based principles, including those related to the indivisibility, interrelatedness, and universality of rights, do receive broad commitment in the human rights field, and their implementation, while inconsistent, has significantly improved in practice over the past decades. However, through examining critical human rights scholarship and contemporary practice, we find that although human rights organizations have increasingly asserted their commitment to the process principles of participation, empowerment, and accountability, in practice the human rights field far too often fails to measure up. Even worse, common human rights research and advocacy approaches used by professionalized international and national NGOs not based in the communities where they work can actually disempower rights-holders and local advocates, produce and objectify victims, and be top- down and poorly accountable to those directly affected by abuse. Although there are many examples to the contrary—especially among grassroots organizations, newer organizations, feminist groups, and those based the global South—we argue that it is common in the human rights field for NGOs to fail to sufficiently adhere to foundational human rights principles in their own working methods. In so doing, their work can have the effect of reproducing unjust power hierarchies, and, where work involves northern NGO interventions in the global South, can also contribute to maintaining colonial northern advocate-as-saviour, southern rights- holder- as- victim frameworks. We conclude with a challenge to those of us in the field and working as outside advocates to commit to a deeper exploration of what more active implementation of human rights-based approaches could look like, and a specific call to directly challenge the socio-economic and political structures that lead to human rights abuses and undermine the ability of rights-holders to claim their rights. We conclude with some questions that could guide human rights practitioners and scholars in examining the practices that may require reform, and to face the challenges inherent in using rights-based approaches.

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  Understanding Adjudication

  Lewis A. Kornhauser

  A theory of adjudication begins with two sets of three questions: The first set asks about the behavior of courts. The second asks about the behavior of judges. We thus have: What do courts and judges do? What do courts and judges want? What constraints do courts and judges face? Attitudinalism, the predominant social science account of adjudication, has simple answers to these questions: Courts and judges choose policies; they have preferences over policies, and, at least on apex courts, they are unconstrained. These answers, even for apex courts, seem incomplete and misleading. Constitutional drafters, legislators, and treaty signatories devote substantial resources to devising complex institutional structures, a meaningless effort if the structure of institutions does not constrain the court. Judges typically deny that courts are political bodies engaged in the naked articulation of policy. They justify their decisions with long and complex opinions. Thus, sustained attention to judicial activity suggests that these six questions require more complex answers. Attitudinalism, in recognition of this apparent gap in its explanations, frequently posits a legal model with which to challenge its more realist explanation. The legal model, however, is poorly specified and not adequately tested against attitudinalism. Indeed, we require richer theories than attitudinalism both to approximate a legal model and to illuminate the processes of adjudication generally and of decision-making on apex courts in particular. Economists and political scientists have begun to develop these richer models. This essay introduces this theoretical literature. I focus on models of collegial courts in which a panel of judges decides cases together. Apex courts typically are collegial. The study of apex courts, however, also implicates issues of hierarchy because apex courts generally sit atop a hierarchy or may hear cases in panels that are subject to plenary review. This essay has two aims. First, it sketches the diverse universe of apex courts in an effort to identify features that theory should incorporate and illuminate. Second, it outlines some richer theoretical structures that, with substantial work, might provide a more robust theory of courts and adjudication. I begin this exploration of theory by discussing first what judges do, then what constraints judges face, and finally what judges want. I then examine some models to illustrate these formal structures. I focus on formal models because they yield sharp predictions that can be brought to data. The formal literature that I review largely studies federal or state courts in the United States. This focus, though explicable by the relative accessibility of data (and the national origins or residency of the authors), is unfortunate because apex courts elsewhere have significantly different internal structures and institutional settings. The extant literature reveals the importance of these institutional features on the behavior of courts and judges.

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  Nonlegislative Justification

  Liam B. Murphy

  If we take for granted that familiar moral constraints on the treatment of other people cannot be explained away in terms of the beneficial consequences of adopting certain standing dispositions and deliberative rules of thumb, the question remains as to what kind of explanation and justification of them is available. Can more be said than that it is self-evident to ‘thoughtful and well-educated people’ that certain ways of treating people are wrong? As most moral philosophers are in this respect Rawlsians now, most answer yes. Moral theory starts but does not end with a statement of considered judgments; it aims to provide a set of principles or a moral conception that matches our considered judgments in reflective equilibrium. Even philosophers such as Judith Jarvis Thomson and F. M. Kamm, who, unlike Rawls, insist that some considered judgments about particular cases must be treated as fixed, nonetheless see the point of moral theory as providing explanation and justification for those beliefs. Thomson writes, invoking Socrates, that ‘while a cluster of beliefs may be a cluster of true beliefs . . . , knowledge that they are true requires knowledge of what makes them true’. And Kamm, who insists that the first step in moral theory is the formulation of intricate moral principles as generalizations of ‘as many case-based judgments . . . as prove necessary’, holds that we cannot conclude that any principle is correct unless we find that it ‘expresses some plausible value or conception of the person or relations between persons’. Thomas Nagel well expresses the standard view: ‘Common sense doesn’t have the last word in ethics or anywhere else, but it has, as J. L. Austin said about ordinary language, the first word: it should be examined before it is discarded.’ A rather different approach has been explored by T. M. Scanlon since ‘Rights, Goals, and Fairness’ in 1975. His ‘reductive’ strategy does not start from considered judgments about particular cases or proposed principles as data. The project has been to find an intuitively compelling unified account of the domain of nonconsequentialist principles as a whole, reasoning to particular conclusions about moral principles from within the terms of that account. In a recent paper, Scanlon writes: ‘In developing my contractualist view, I was following Aristotle’s model. I was using the method of reflective equilibrium to identify the contractualist procedure of justification, which I thought gave the best account of (at least a portion of) morality, and then taking this procedure to be a way of reasoning “from first Principles” about what the content of this morality is and why.’ Scanlon does indicate that the overall plausibility of his contractualist method will depend not just on its appeal—in reflective equilibrium—as a general account of what makes certain ways of treating people wrong, but also on the intuitive acceptability of its outputs. Some principles may just seem obviously reasonably rejectable, and the task would then be to figure out what the grounds for this could be. Moreover, in some instances the structure of the contractualist method itself might have to be tweaked if it is the only way to block unacceptable results for particular cases. Still, the primary direction of argument is to judgments of right and wrong rather than from them.