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  Taking Group Rights Carefully

  Jeremy Waldron

  There is no logical difficulty with the idea of group rights. According to the most persuasive analytical treatment of the subject, an individual is said to have a right when an aspect of its well-being (its interest) is a sufficient reason for holding some other individual or individuals to be under a duty. As far as I can tell, none of these conditions is inapplicable in principle to groups: a human community may be treated as an individual for certain purposes (vis-à-vis other groups or vis-à-vis the wider society); we should not foreclose on analytical grounds the possibility that a community might have interests of its own which require recognition in moral and political discourse; nor should we rule out the possibility that those interests rise to a level of moral importance that commands recognition by other entities or individuals in the form of duties. I am not saying these conditions are satisfied in fact. I am certainly not saying they are satisfied wherever group rights are claimed. But if there are reasons for opposing talk of group rights in general (or specific claims about group rights), or for insisting that they be reduced to the rights of individual men and women, they are not analytical reasons. Some may want to add to these conditions a further requirement that the entity to which rights are attributed be capable of agency—that is, that it be capable of making claims and exercising choices. But this cannot be ruled out on logical grounds either. We are perfectly familiar with the idea of collective decision, and indeed one of the most commonly invoked group rights—the right to national self-determination—is a right to have decisions by the group made politically effective. True, our best understanding of collective decision is in terms of a function over individual decisions (such as majority-rule in a simple case). But such a function operates as the content of a rule which specifies how collective decisions are made; and that is not at all the same as saying that the collective decision may be reduced to the individual decisions to which the function applies. To say that a group decides by majority-rule is not at all the same as saying that a group decision is nothing but the decisions of a majority of its individual members. Nothing that has been said so far suggests that there are group rights: all I have said is that the possibility cannot be dismissed out of hand. To show that there are group rights, we will have to identify a class of distinct and identifiable communities that it makes sense to treat as individuals for certain purposes; and we will have to show that those communities have interests that are in fact important enough to justify holding other individuals (other groups, or maybe other people) to be under duties, or that certain recognisable duties are appropriately controlled by the decisions of these groups. Only if we show all that—for an actual case—will we have shown that the logically impeccable notion of group rights actually applies to something real. Apart from what I have already said, the remarks about group rights that I present in this paper are not analytic, but practical or pragmatic. I want to consider not the logical question of whether there might be group rights—that, as we have seen, is settled—nor the existential question of whether there are group rights, but the practical consequences of recognising such rights and giving them a place in political discourse and in legal and constitutional arrangements.

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  Babel—One Language and One Speech

  Joseph H. H. Weiler

  Claus-Dieter Ehlermann is widely regarded as among the most knowledgeable, far-sighted, and creative shapers, practitioners, and scholars of European law. Among the prominent legal roles he has played in his influential career, his leadership of the Legal Service of the European Commission is perhaps the best known. This liber amicorum appears as his term at the Appellate Body of the World Trade Organization draws to a close. In this book thirty of his distinguished colleagues offer fresh and provocative insights into many of the areas of international law on which Prof. Dr. Ehlermann has left his stamp. Topics include: the WTO dispute settlement system; regulation of trade barriers; the first signs of a global jurisprudence; the principle of proportionality; enforcement of competition law; and the place of human rights in European and global integration. In its wide-ranging appreciation of the many tributaries that must come together if legal and economic integration is to be both human and prosperous - whether in Europe or in a wider field—European Integration and International Coordination is a rare work. Its precise but far-reaching evaluations and proposals, worthy of the scholar and practitioner to whom they are dedicated, will find thought-provoking echoes in the minds of all those concerned with any of the integration processes under way in today's interdependent world.

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  The Commission as Euro-Skeptic: A Task Oriented Commission for a Project-Based Union: A Comment on the First Version of the White Paper

  Joseph H. H. Weiler

  Reform is persistently on the agenda of the European Union (EU). As this volume goes to press, we can observe three simultaneous processes of change under way. Forms of evolutionary change continue to alter the practice of both policy and decision-making in the EU. Deliberate attempts at experimental change are being introduced into the way the EU works. And the Convention has just opened to canvass options for engineered changes to the treaties on which the EU is based. Each of these processes of change affects the others, making the EU a constant puzzle to understand and requiring both commentators and practitioners to re-examine their assumptions. This collection of essays offers some provocative reflections on the ways in which 'governance' has apparently emerged as an organising concept for analysing this continuous process of change in the EU. The collection was itself prompted by the decision of the European Commission to open a debate on European Governance through the White Paper published in July 2001. In preparing this White Paper, the Commission invited one and all to join it in analysing both the ingredients of change and the possible remedies to improve the performance of the EU institutions. The agenda is a huge one, as the White Paper itself demonstrates, with its many and varied suggestions for reform. The agenda is also a controversial one, since there is no single predominant recipe. Moreover, there is no single diagnosis of what the ingredients of change are or what is the most appropriate way to mix them together. It is all the more important, therefore, that we, in the academic community, should respond to the challenges put to us by the changing world of practice. Consequently, in assembling this collection we gave no guidelines to our contributors. Thus, the resulting eclectic range of observations and provocations is offered herewith to further intellectual debate. The participants in this volume speak for themselves but also as members of a scholarly community with a very deep concern for our shared subject, namely, the quest for a process of European integration that works, that can generate worthwhile collective action, and that can grow stronger roots in the European societies in which it is grounded. The launch pad for this collection was the European University Institute in Florence. Its realisation is the fruit of a continuing collaboration with the Jean Monnet Program at Harvard Law School and NYU School of Law.

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  Constitutional Interpretation in International Organizations

  José E. Alvarez

  This chapter (1) describes the prevalence of "constitutional" analogies in lawyers' interpretive approaches to the charters of international intre-governmental organizations; (2) identifies the actors involved in charter interpretation; (3) outlines how lawyers interpret such charters; and (4) discusses the relevance of these issues to the legitamacy of international organizations.

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  African Identities

  Kwame Anthony Appiah

  Investigating the meaning of race and racism, the eighteen superb essays in this book not only explore the nature of these controversial ideas but also promote an awareness of them. With an introduction examining the themes and conflicting ideas present in the book, and including a previously unpublished piece on the alleged racism of Immanuel Kant, this book stimulates a critical appreciation of the true meaning and far-reaching implications of an understanding of race and racism. As part of the successful Oxford Readings in Philosophy series, it engages readers with a range of ideas that will contribute to a profound insight into these highly provocative topics.

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  Cosmopolitan Reading

  Kwame Anthony Appiah

  This book highlights the best new interdisciplinary research on the theory and practice of cosmopolitanism, with a special focus on the cosmopolitan literatures of Europe, Asia, Africa, and North America, from medieval times to the present.

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  Ethnic Identity as a Political Resource

  Kwame Anthony Appiah

  This rich collection brings together many of the leading authorities on African political philosophy to present a variety of perspectives on this rapidly growing field. They seek to show that African philosophy can serve African people as a moral activity guided by the principles of practical reason in addressing problems of the basic structures of social, political, and economic institutions.

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  Grounding Human Rights

  Kwame Anthony Appiah

  Michael Ignatieff draws on his extensive experience as a writer and commentator on world affairs to present a penetrating account of the successes, failures, and prospects of the human rights revolution. Since the United Nations adopted the Universal Declaration of Human Rights in 1948, this revolution has brought the world moral progress and broken the nation-state's monopoly on the conduct of international affairs. But it has also faced challenges. Ignatieff argues that human rights activists have rightly drawn criticism from Asia, the Islamic world, and within the West itself for being overambitious and unwilling to accept limits. It is now time, he writes, for activists to embrace a more modest agenda and to reestablish the balance between the rights of states and the rights of citizens. Ignatieff begins by examining the politics of human rights, assessing when it is appropriate to use the fact of human rights abuse to justify intervention in other countries. He then explores the ideas that underpin human rights, warning that human rights must not become an idolatry. In the spirit of Isaiah Berlin, he argues that human rights can command universal assent only if they are designed to protect and enhance the capacity of individuals to lead the lives they wish. By embracing this approach and recognizing that state sovereignty is the best guarantee against chaos, Ignatieff concludes, Western nations will have a better chance of extending the real progress of the past fifty years. Throughout, Ignatieff balances idealism with a sure sense of practical reality earned from his years of travel in zones of war and political turmoil around the globe. Based on the Tanner Lectures that Ignatieff delivered at Princeton University's Center for Human Values in 2000, the book includes two chapters by Ignatieff, an introduction by Amy Gutmann, comments by four leading scholars—K. Anthony Appiah, David A. Hollinger, Thomas W. Laqueur, and Diane F. Orentlicher—and a response by Ignatieff.

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  Stereotypes and the Shaping of Identity

  Kwame Anthony Appiah

  In Prejudicial Appearances noted legal scholar Robert C. Post argues modern American antidiscrimination law should not be conceived as protecting the transcendental dignity of individual persons but instead as transforming social practices that define and sustain potentially oppressive categories like race or gender. Arguing that the prevailing logic of American antidiscrimination law is misleading, Post lobbies for deploying sociological understandings to reevaluate the antidiscrimination project in ways that would render the law more effective and just. Four distinguished commentators respond to Post's provocative essay. Each adopts a distinctive perspective. K. Anthony Appiah investigates the philosophical logic of stereotyping and of equality. Questioning whether the law ought to endorse any social practices that define persons, Judith Butler explores the tension between sociological and postmodern approaches to antidiscrimination law. Thomas C. Grey examines whether Post's proposal can be reconciled with the values of the rule of law. And Reva B. Siegel applies critical race theory to query whether antidiscrimination law's reshaping of race and gender should best be understood in terms of practices of subordination and stratification. By illuminating the consequential rhetorical maneuvers at the heart of contemporary U.S. antidiscrimination law, Prejudicial Appearances forces readers to reappraise the relationship between courts of law and social behavior. As such, it will enrich scholars interested in the relationships between law, rhetoric, postmodernism, race, and gender.

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  A Political Theory of Federalism

  Jenna Bednar, William N. Eskridge Jr., and John A. Ferejohn

  Multiethnic nations (South Africa, Russia, Nigeria, Rwanda, the former Yugoslavia, to name a few) have sometimes found decentralized political arrangements attractive. Such arrangements—as long as they last—permit peoples who may differ greatly in their conceptions of a good public life to develop and maintain their own separate communities, within the context of a larger and more powerful political economy. Ethnically more homogeneous nations such as the United States, at the time of its founding, or Australia today, often find decentralized modes of policy formation and administration convenient as well. In such nations, geographic distances, diverse economies, regional disparities in preferences, and variations in local historical experience can make decentralized policy-making institutions more efficient and more responsive than national ones. The advantages of decentralization are realizable, however, only if there are good reasons for the players—ordinary citizens as well as regional and central governments—to believe that others will generally abide by the terms of the federation. That is, all must believe that the regional governments will not try to take advantage of one another and that the center will not try to usurp power from the regions. Without such assurance, frequent disputes and suspicion of foul play would reduce the participants' enthusiasm for the federation, possibly motivating some participating governments to withdraw from the federation altogether. Decentralized political institutions must somehow induce participants to believe that all others will abide by the federation's terms and to act accordingly, by complying as well.

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  Cutting Off the Flow of Funds to Terrorists: Whose Funds? Which Funds? Who Decides?

  Kevin E. Davis

  One of the most important fronts in the newly declared war on terrorism is the financial one. The avowed aim of the United States and its allies is to cut off the flow of funds to terrorists. This campaign involves a two-pronged attack: The first prong involves prosecuting the financiers, i.e. individuals or organizations that provide money or property to support terrorist activities. The second prong involves freezing, seizing and forfeiting property that has been or might be directed toward terrorist activities. This paper analyses the portions of the Anti-terrorism Act that represent the federal government of Canada's first sortie on the financial front of the war against terrorism. Although the government's two-pronged strategy is simple to describe, it is actually inherently difficult to implement through legislation. One reason is because legislation of this sort is designed to capture economic activity that only poses a risk of contributing to future terrorist activity. This forces lawmakers to decide how much risk must be posed by a given activity before it ought to be criminalized, recognizing that the lower the threshold they establish, the more likely it is that they will capture activity that would not, if events proceeded in due course, actually lead to harm. A second challenge associated with legislation of this sort is to determine how close the connection between economic activity and terrorist activity must be in order for the economic activity to warrant criminal sanction. At some point the connection may be so remote that many reasonable people would conclude—for example, on the basis of concerns about personal liberty—that the economic activity should not attract criminal liability. My primary objective in this paper is a relatively modest one: I simply intend to describe how the drafters of the Anti-Terrorism Act have responded to the challenge of defining the relationship that must exist between individuals and property on the one hand, and terrorist activity on the other hand, in terms of both certainty and proximity, in order to trigger criminal penalties. Where appropriate I compare the approach taken in the new legislation to the approach that Canadian law has previously taken to similar issues, as well as to the approach adopted in the International Convention for the Suppression of the Financing of Terrorism (the 'Financing of Terrorism Convention'), which Canada signed on February 10, 2000. I do not attempt to assess directly whether the approach that the Anti-terrorism Act has taken is justifiable, since answering that question would involve canvassing a wide range of ethical, economic and political factors. However, towards the end of the paper, I do analyze the legislation in terms of the amount of power Parliament has given law enforcement officials, trial judges, juries and appellate courts respectively to determine which conduct should attract criminal sanction. I argue that some of the new provisions give law enforcement officials too much power and appellate courts too little.

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  The Regulation of Social Enterprise

  Kevin E. Davis

  At one time it was convenient to divide society into three sectors: public, private, and “non-profit.” In recent years, however, the distinctions between the sectors have become blurred, mainly because phenomena previously regarded as unique to the private sector have begun to emerge in the other two sectors. The public sector has introduced practices such as competition and reliance on financial incentives, and the non-profit sector, which includes the charitable sector, has experienced increased “commercialization,” often in response to cuts in government grants to charities. The term “commercialization” has a number of meanings, but in the charitable sector frequently refers to charitable entities’ engaging in commercial activities—i.e., providing goods or services in exchange for valuable consideration. This phenomenon is sometimes called “social enterprise” and encompasses a wide variety of activities. Familiar forms of social enterprise include small-scale bake sales and car washes, the sale of Girl Guide cookies, the operation of gift shops and food stands by hospitals or museums, and the rental of unused real property by charities of all kinds. More innovative forms include charging user fees for social services, using a charity’s staff to provide services to corporate clients at market prices, selling membership lists, and licensing trademarks to for-profit corporations. This chapter focuses on the legal regulation of social enterprise. The first section outlines the current legal regime. The remainder of the chapter examines the benefits and the dangers associated with permitting charities to engage in social enterprise and the advantages and disadvantages of various methods of taxing the income that it generates. I conclude by outlining a proposal for reform of the current regime.

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  Human Rights: The Charter and Beyond

  Gráinne de Búrca

  The focus of these comments is principally on two issues relating to the future of the EU Charter of Fundamental Rights: first, on some practical dimensions of the implications of incorporation of the Charter into the existing Treaties; and secondly, a number of broader reflections on the impact of the Charter on the normative foundation of the EU—whatever decision is taken in terms of its future legal status—and more concretely on its actual powers and competences.

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  Legal Principles as an Instrument of Differention? The Principles of Proportionality and Subsidiarity

  Gráinne de Búrca

  The introduction by the Amsterdam Treaty of the flexibility clauses, authorising a majority of Member States to cooperate more closely in areas covered by the Treaties, has been received with mixed feelings. Flexibility is by no means a new phenomenon in the EU's development. It has been on the Community's agenda already since the 1970s. The Single European Act introduced several provisions allowing for flexible approaches to the single market, whilst the Maastricht Treaty launched a differentiated approach to the EMU and social policy. In addition to these forms of differentiation in primary Community law, for many years there has also been a number of quite important, though less visible, forms of differentiation in secondary Community law. This book aims to link both levels of differentiation and seeks to unveil the many faces of differentiation in EU law. It analyses whether, and to which extent, there is a shift in European integration from a system of unity and uniformity to one of flexibility and differentiation. A first series of contributions to the book analyse a number of exemplary policy fields (EMU, social policy, environment, free movement of persons, justice and home affairs) in order to identify their degree of differentiation. A second set of contributions examine various 'horizontal' institutional matters of cross-sectoral importance. These two main parts are framed by introductory articles on the development of flexibility and by contributions drawing on the constitutional limits to differentiation. The contributions are made by Dominik Hanf, José M. de Areilza, Jean-Victor Louis, Sean Van Raepenbusch, Ludwig Kramer, Georgia Papagianni, Grainne de Burca, Ellen Vos, Linda Senden, Sacha Prechal, Wouter Devroe, Deirdre Curtin, Bruno De Witte, Eddy De Smijter en Jan Wouters.

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  The Impact of the WTO on EU Decision-making

  Gráinne de Búrca and Joanne Scott

  EU lawyers have long been used to reflecting on the fundamental ways in which the legal systems and governance of its component states have been affected by their membership of the European Union. In more recent times, however, and in particular since the conclusion of the Uruguay round and the signing of the World Trade Organisation Agreements in 1994, lawyers have been confronting an ever more complex set of questions concerning the relationship between the norms of the different systems and the impact of the strengthened system of international trade law, not only on the states individually but also on the EU and its institutions. There are numerous aspects to the question of how, in substantive and procedural terms, the process of political and legal decision-making in the European Union is affected by the EC’s membership of the WTO. Most obviously, there are a number of hotly debated legal issues, which are addressed elsewhere in this book, dealing with the exact legal status and effect of WTO norms within the European legal order. Secondly, there are sector-specific questions concerning how particular EC policies are affected by the provisions of the relevant agreements. Thirdly, there is a need to examine the extent to which and the way in which the EU institutions and organs seek to integrate the substantive obligations contained in the various agreements into their political and legislative processes. A fourth and significant dimension which is not often explored concerns the likely impact, not of the actual provisions of the WTO Agreements, but of the general principles and due process norms being developed by the dispute settlement bodies, not only on the adjudicative methods of the Court of Justice, but also more generally in the interpretation of provisions of the EC Treaties and EC law, in particular when the scrutiny of trade restrictions arises. This chapter concentrates primarily on the third and fourth categories out- lined above, and it is divided into three parts. The first part considers briefly some of the points of comparison and contrast between the EU and the WTO, and the relevance of these similarities and differences for the interpretation and effect of the respective norms of each system. The second part takes two case studies in order to examine in more concrete detail some of the ways in which WTO norms and provisions are likely to influence and be integrated into the EC decision-making processes. The first of these examines the recently proposed amendment to the EC Cosmetics Directive and the second the ramifications of a pending legal challenge to a recent regulation on aircraft noise. The final part of the chapter considers the general principles and procedural norms evolving and being developed at WTO level, and at how these are likely to be relevant for the ECJ and EC decision-making bodies more generally.

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  From Social To Legal Norms: A Neglected Cause of Big Government

  Richard A. Epstein

  The topic of Big Government is, it may fairly be said, a big question that has already spawned an enormous amount of controversy, if not acrimony. At times in our recent history, it seems as though the idea of Big Government has been vanquished from our domestic lexicon. Back in 1994 the Republicans rode to power on a social contract that promised to clip the tentacles of Big Government. President Clinton then chimed in with a State of the Union address in which he intoned that "the era of Big Government is over." But this joint revolution proved short-lived, as the Republicans have beaten a ragtag retreat from the ideal of Little Government, while former president Clinton made (in, for example, his 1999 State of the Union ad- dress) new promises to every interest group the central talking point of his second administration. The pressures to expand the use of government power often seem irresistible. It is tempting to increase the size of government by looking in isolation at the benefits induced by any single government program. It is much harder, given the tribulations of political life, to hew to the rigorous discipline that generates prosperity in the first place. Transfer programs do not create wealth. Only production can do that. Production in turn requires a focused government policy that builds a solid infrastructure and fosters strong private property rights and voluntary exchanges. In hard times, the necessity of returning to fundamentals to spur production should be evident. But once prosperity returns it is easy to forget that the discipline that brought prosperity in the first place is needed to keep prosperity alive. The great achievements of one generation will not of their own force last for the long run unless they are continuously replenished. Unfortunately, the rate of depreciation for sound social institutions and practices is so rapid that one generation cannot protect the next generation from its own mistakes. Yet it is easy to forget the fragility of political institutions; too often political leaders relax their guard and indulge in humanistic reforms whose major consequence is to undermine the engine of prosperity that made these reforms thinkable. The decline of political discipline never takes place because of frontal attack. In the abstract, everyone acknowledges that well-functioning markets can outproduce and outperform comprehensive command-and-control regulation. But the ostensible generality of that position is picked apart by endless ad hoc exceptions. The Democrats (and some Republicans) continue to show strong support for new increases in the minimum wage: After all, in periods of prosperity, the workers at the bottom of the pile are also "entitled to a raise," whether or not the employer wishes to pay it. The Republicans (and some Democrats) find it within their power to bless farm subsidies, as with the continuation of the ethanol program or strict import quotas on cane sugar for the benefit of domestic producers of the more expensive beet sugar. Leaders of both parties are quite happy to override private insurance markets in order to require worker portability of health care insurance in the face of preexisting conditions that cost more to service than the premiums received. It almost seems that once a political party announces that it is in favor of Little Government, it renders itself invulnerable to attack for the new or expanded forms of government intervention it champions. Intellectual consistency in political circles counts for less than the deft articulation of proper public sentiment. But no one should be deceived. Proclamations against Big Government may respond to the yearnings of the majority of the electorate, but these statements do not drive the mid-level choices on economic or social regulation. This initial dose of cynicism should not, however, lead us to ignore one important shift in the terms of the debate. At one time, Big Government needed no defense. It was thought that the political and constitutional debates of the Franklin Roosevelt era had established the proposition that the well-being of the American public was too important to be left to the vagaries of the market, driven as it was by selfish and shortsighted behavior. Today, fewer people think that private actors have a monopoly on either of these two vices. The gradual reversal of the presumption in favor of Big Government stems from the belated recognition that competitive pressures may provide a needed check against the worst of human impulses, to which government servants are not immune. The evils of private misconduct are checked not by an opposing faction or high-minded regulation but by the simple ability of customers to switch firms when the goods and services that they receive are no longer acceptable. The Internal Revenue Service has never labored under that constraint, so its customer relations take on a rather different coloration from those of a fashionable restaurant or shop. Private monopolies do not behave well, even though they are subject to erosion and decay and, in some instances, government regulation which could easily pull the franchise for inadequate service. Why assume that public monopolies behave any better when they may be propped up indefinitely by the force of law?

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  The Marriage of Art and Business

  Richard A. Epstein

  In September 1999, Sensation, an exhibition at the Brooklyn Museum, opened its doors, igniting a controversy still burning in the art world. This collection of cutting-edge art from the Saatchi collection in England, and the museum’s arrangements with Charles Saatchi to finance the show, so offended New York City mayor Rudolph Giuliani that he attempted to shut the museum down by withholding city funds that are crucially needed by that institution. Only a legal ruling prevented him from doing so. Like the Robert Mapplethorpe exhibition before it, Sensation once again raises questions about public spending for “controversial” art, but with the added dimension of religious conflict and charges of commercialization. The contributors to this volume use the Sensation exhibition as a stepping-stone to analyze larger questions such as the authority the government has to withhold funds, various interpretations of the First Amendment, how to respect divergent cultural and religious values; and the economic stake of museums and dealers in art. In their articles—written expressly for this volume, and spanning the disciplines of law, cultural studies, public policy, and art—the contributors consider issues at the center of arts policy. They propose various legal strategies, curatorial practices, and standards of doing business intended to serve the public interest in the arts.

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  Deregulating Union Democracy

  Samuel Estreicher

  George Brooks was a great teacher and scholar in the field of industrial relations. My warmest memory of my years as a Cornell graduate student (1970-72) were of the times he came to our postage stamp of a house on Ithaca's Water Street for a meal cooked by my young bride Aleta, and for a lively discussion of current events on the labor scene. Virtually my first act as a member of the NYU law faculty in 1978 was to invite him to come and speak at my seminar. It was especially gratifying that in his later post-retirement years, teaching Cornell interns in Washington, George urged me to speak at his seminar each semester. We hoped to get this festschrift out in time to celebrate with him; indeed, in my last conversation with George, he warned: "You better hurry. I may not make it by publication date." George's exemplary teaching career should not obscure his equally important contribution to the literature on unions as organizations. For George, competition (and the insecurity it brings) Was key to the vitality of the labor movement, and he lamented the web of rules and doctrines, fashioned in the service of stability in bargaining relationships and in the institutional life of the union. George's work and example inspired the essay that follows.

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  Models of Workplace Representation for an Era of Global Labor and Product Market Competition

  Samuel Estreicher

  Trade unionism in private companies is a declining phenomenon all over the world. In the United States, for example, unions represent less than 10 per cent of such workers; over half of the AFL-CIO membership comes from workers in government offices even though public-sector employment is only one-eight of the overall workforce. The rate of decline may be slower elsewhere, but the story of private-sector decline (at least if viewed in terms of membership) is universal. What started as a movement of workers against private capital is now increasingly a movement of government workers against public capital. An enormous literature has developed to attempt to explain this phenomenon. Four categories of explanation have emerged: 1. Employer Opposition: Many academics, especially in the United States, point the finger at employer opposition (lawful and unlawful) and the weak remedies of labor law to deter retaliation against union supporters. 2. Demand-Side Changes: Others have focused on changes in the preferences and orientation of workers, observing a shift from class-based solidarity to individualism (sometimes aided by 'minimum standards' laws that essentially provide an individual-rights, cost-free substitute for workplace representation). 3. Structural Change: A third group stresses structural change in developed economies. With the sectoral shift away from manufacturing towards services and the demo- graphic shift from homogenous to multi-cultural workforces, unions are finding it increasingly difficult to retain membership and attract new followers. 4. Global Product and Labor Market Competition: A fourth explanation urges that traditional trade union goals (union wage premium, shorter work week, staffing rules, seniority) are increasingly difficult to maintain in an era of global product and labor market competition.

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  Overview on the Sphere of Application of the 1980 UN Convention on Contracts for the International Sale of Goods

  Franco Ferrari

  As can easily be evinced from the title of this short paper, it focuses merely on the provisions dealing with the sphere of application of the United Nations Convention on Contracts for the International Sale of Goods. It will therefore merely examine those provisions that determine whether a contract is subject to the CISG at all. Those provisions, such as Articles 4 and 5, that determine to what extent contracts are dealt with by the Convention, will not be examined. Before examining more closely those provisions that this paper deals with, it may be appropriate to put the CISG into its historical context. The need to create an internationally uniform discipline for cases linked to more than one country designed to transcend national borders in order to maximise the utilisation of resources and to create certainty was recognised as early as in the 1920s, when it was suggested by Ernst Rabel to start with the work of unifying the law of international sales of goods. Upon this suggestion, the International Institute for the Unification of Private Law, UNIDROIT, decided to undertake extensive studies in this field which led, in 1935, to the first draft of a uniform law on the international sale of goods. After World War II, which had interrupted the aforementioned efforts, work resumed with a conference at The Hague in 1951. Thereafter, other drafts followed, the last of which was discussed at the Diplomatic Conference held at the Hague in April 1964. The twenty-eight participating States approved two conventions, annexed to which were the Uniform Law on the International Sale of Goods (hereinafter: ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (hereinafter: ULF). These laws were not as successful as expected; indeed, they came into force only in nine Countries. This led the United Nations Commission on International Trade Law, UNCITRAL, which was formed in 1966 with the task of promoting the progressive harmonisation and unification of the law of international trade, to attempt the revision of the Hague Uniform Laws. But when it became apparent that a revision would not be successful without substantial modifications, a Working Group was established with the task of drafting a new text. Several drafts were proposed, the last of which - dating back to 1978—was the one upon which the General Assembly of the United Nations authorised the convening of a diplomatic conference, held from March 10 to April 11, 1980 in Vienna. On that occasion, the convention, which is officially known as the “United Nations Convention on Contracts for the International Sale of Goods”, was approved. It entered into force on January 1st, 1988.

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  The International Sphere of Application of the 1988 Ottawa Convention on International Factoring

  Franco Ferrari

  Although the trend towards a worldwide unification of international trade law is at least one hundred years old, as confirmed by the fact that in 1993 the Hague Conference on Private International Law celebrated the centennial anniversary of its first session, unification efforts are associated particularly with the latter half of this century. This trend is not a surprise considering that in the 20th century “[t]he globalization of most national economies has resulted in a dramatic increase in transnational commerce” and in a consequent need for a corresponding legislative policy designed to regulate such transnational commerce. To put it succinctly, a growing demand arose for a body of law governing business transactions linked to a plurality of legal systems. In order to reach the goal of unification of international commercial law (for the sake of certainty of law), it has been necessary to overcome what has been considered its biggest obstacle, i.e., the existence of a “myriad” of distinct domestic laws. In short, it has been crucial to “reduce the impact of national boundaries,” “the international merchants' and traders' worst enemy.” Thus, there has been a continuing effort to promote international trade through the unification (and harmonization) of international commercial law. In this respect, the unification of the law of the international sale of goods, the commercial contract par excellence, is a significant achievement. Indeed, in 1980 after more than fifty years of preparatory work and two not overly successful conventions on the subject, the unification efforts in this field led to the United Nations Convention on Contracts for the International Sale of Goods (CISG) which became effective on January 1, 1988. The CISG was elaborated by the United Nations Commission on International Trade Law, UNCITRAL, one of the permanent institutions that promotes the unification of international commercial law. This very important Convention has now been enacted in nearly fifty countries. While the unification of international sales law has long been considered a primary goal because of its importance for the flow of international trade, unification attempts in other areas of the law have also been made. The International Institute for the Unification of Private Law (UNIDROIT) has, since the 1970s, sought to draft uniform rules on factoring, mainly in response to the increasing economic importance of factoring as a means of financing international trade and the fact that “divergences in national law and the frequent uncertainty as to the law applicable to a given transaction . . . create problems which the factoring industry must constantly face and which it seeks to overcome by passing on to suppliers the increased cost of its services.” UNIDROIT's work led initially to the 1983 Preliminary Draft Uniform Rules on Certain Aspects of International Factoring, then to the 1987 Draft Convention on International Factoring, and finally culminated in the 1988 Ottawa Convention on International Factoring, which became effective on May 1, 1995, after the expiration of six months from the date of deposit of the third instrument of ratification, acceptance, approval, or accession. This brief article focuses not so much upon the Ottawa Convention's substantive law provisions36 as upon its personal, spatial, and temporal sphere of application (articles 2 and 21). Section I discusses the Convention's sphere of application ratione materiae and its definition of “international” factoring contracts. Section II examines the Convention's “direct” applicability. Section III investigates the Convention's “indirect” (private international law-based) applicability.

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  Economics, Moral Philosophy, and the Positive Analysis of Tort Law

  Mark A. Geistfeld

  The positive analysis of tort law is descriptive in the sense that it ascribes a purpose to tort liability, such as one based on corrective justice or wealth maximization, and then interprets tort law in those terms. An interpretation that adequately describes tort practice is thought to support the claim that the tort system serves the purpose upon which the interpretation is based, even if participants in the system do not consciously pursue that purpose. This analytical approach is partially motivated by the role that precedent plays in the justification of legal decisions. If positive analysis shows that most of tort law maximizes wealth, for example, then one may have substantial precedent for justifying the wealth maximizing outcome in the case at hand. Similarly, a greater ability to discern commonality in prior cases makes one more capable of predicting the outcome of future cases, insofar as “like” cases are supposed to be treated alike. By enhancing the ability of the tort system to handle cases in a uniform and consistent manner, positive analysis promotes or protects the values of equality and reliance. Positive analysis has only limited normative value, however. Even if positive analysis shows that most of tort practice can be adequately described as serving some purpose, a purpose that is not morally justified probably does not provide a good reason for deciding the present case. Any purpose ascribed to tort law must be normatively justified, so the positive analysis of tort law cannot substitute for normative theory. Not surprisingly, there has been much debate about the appropriate purpose of tort liability, with the most attention being paid to the competing claims that either corrective justice or wealth maximization provides the appropriate rationale for tort liability. Unfortunately, there is no consensus on the proper objective of tort liability, explaining why so much attention has been paid to the positive analysis of tort law. Those who believe that tort law should maximize wealth have often appealed to the theory’s descriptive power as proof that “the logic of the law is really economics. To rebut this claim, philosophers have argued that moral principles, typically based on corrective justice, provide a better description of tort practice. This critique has two aspects. First, it shows how much of tort law implements moral principles. Second, it argues that the economic interpretation provides a poor explanation of important tort practices. As Sections I and II below show, these objections to the positive economic analysis of tort law are answerable. This analysis does not show that wealth maximization provides a better description of tort law or a more defensible basis for tort liability. Instead, by showing that the economic and moral interpretations can each provide persuasive descriptions of tort practice, the analysis suggests that the two interpretations must share substantial similarities. Section III accordingly seeks to understand why the two interpretations are able to provide such good descriptions of tort practice. Despite their fundamental differences, each justifies an important subset of tort rules, albeit for different reasons. These rules therefore can be justified on the basis of an overlapping consensus. Of course, the overlapping consensus does not encompass all tort rules. Most notably, the conventional economic rationale for tort liability al- ways requires deterrence, whereas the corrective justice rationale does not. But any form of tort liability is likely to have some deterrence impact, making it difficult to determine whether the justification for any given rule depends on deterrence or some other moral reason. Hence it is unsurprising that the economic and moral interpretations each yield persuasive descriptions of tort practice. For various reasons, then, there are considerable obstacles faced by those who want to rely on positive analysis to resolve the issue of whether the tort system pursues an economic or moral objective. Positive analysis, however, has another, underappreciated role, one that connects economic analysis to moral reasoning rather than providing grounds for choosing between the economic and moral interpretations of tort law. As Section IV shows, economic analysis necessarily depends on moral argumentation regarding the way in which social welfare depends on individual welfare, an issue implicating the requirements or restrictions that inhere in the principles of equality and justice. Different versions of equality or justice yield different specifications of social welfare. Consequently, even though the conventional economic interpretation of tort law defines the social objective as one of maximizing utility or wealth, that definition is not required by modern welfare economics. The few restrictions that welfare economics places on the definition of social welfare are likely to be satisfied by any moral theory of tort law that operates within a domain defined by the injurious consequences of human behavior, a domain that includes most moral theories of tort law, including those based on corrective justice. The choice among the various moral theories depends on moral argumentation, rather than economic analysis, concerning the appropriate justification for tort liability. The economic analysis of tort law, in turn, is merely a form of positive analysis seeking to determine whether any given tort rule is likely to affect individual welfare in the normatively justified manner. Positive analysis therefore does not provide grounds for choosing between economic and moral interpretations of tort law; it is the ground that unites them.

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  Afterword: Can a Coin-Toss Election Trigger a Constitutional Earthquake?

  Stephen Holmes

  Electoral politics looks considerably more impressive when observed from a filmy distance than when examined under a microscope. American democracy's inherent disorders and defects, it turns out, extend beyond abysmally low turnout, candidates manufactured by advertising agencies, and campaign financing shenanigans. The 2000 presidential election, in particular, revealed that a virtual draw in a winner-take-all contest assigns ultimate decision-making power not only to untypical swing voters (an outcome that is undemocratic enough) but also to unavoidable inaccuracies in the tabulation of ballots. Even if the hand recounts in Florida had been conducted more scrupulously and thoroughly than they were, the difference in votes between the two candidates would have remained statistically meaningless, that is to say, would have been less than the margin of error. Where the electorate is evenly divided, the identity of the U.S. president, who happens to hold the fate of the world in his hands, can be settled only by the flip of a coin. Imaginative attempts have been made, in this volume as elsewhere, to attribute some deep meaning to this underlying fortuity. Partisans on both sides have treated the intense polarization of the post-election circus, culminating in Bush v. Gore, as if it mirrored the state of the polity more accurately than the mind-numbingly bland campaign that preceded it. And the post-election rekindling of the same partisan passions that, a year before, had inflamed the struggle over impeachment, where law was manifestly subordinated to politics, gives some plausibility to this search for a deeper level of significance. Did not partisan politicians, unable to prevail at the ballot box, once again resort to highly malleable law, wielding it as a weapon to rout political foes? The most incendiary, and not entirely implausible, way to elevate the post-election contest into a portentous showdown between rival worldviews has been to interpret it as a reprise of the battle for and against black enfranchisement. No one can plausibly deny that a poor black man is less likely than a rich white one to receive a fair trial in the United States. Before Florida 2000, however, most Americans imagined that the battle to extend the franchise to African-Americans was a thing of the past, largely resolved by the passage of the Voting Rights Act of 1965. But the nearly forgotten struggle against racial restrictions on the suffrage resurfaced rudely in the 2000 election, and not only in the legally questionable scrubbing of “possible felons” from voter lists. Although only 11 percent of Florida voters are black, 54 percent of the spoiled ballots were cast by blacks. Democrats make much of such statistics. They do so because the tendency of Republicans to glamorize private initiative and denigrate government is not as immaculately race-neutral as it initially seems. In practice, the Republican predilection for purchasing private prosperity at the price of public squalor implies not so much an across-the-board as a selective defunding of public institutions. In poor black counties with a small tax base, antiquated voting machinery effectively dilutes the power of voters to influence the electoral outcome. In the aftermath to the 2000 election, the exasperation of African-Americans at minor episodes of disenfranchisement was quickened by sarcastic Republican comments, uttered with a social Darwinist edge, to the effect that voters themselves are responsible if they fail to follow written instructions. In affluent white counties, superior machinery and more professional poll watchers alerted voters who did not follow instructions to correct their mistakes on the spot. This suggests that, rhetoric aside, partisan Republicans are fully aware that the exercise of individual rights, such as the right to vote, depends critically on public expenditures. The reason they deny this publicly may not be intellectual incoherence and ignorance of political theory, therefore. Rather, they may simply hope to benefit from public expenditures themselves while starving the public institutions that give reality to the rights of others, including black Americans, who overwhelmingly tend to vote for the opposite party. Their strategy, if this analysis has any merit, is fairly simple: to fortify the castle of the strong, it helps to enfeeble the siege equipment of the weak. That diverse levels of spending on voting technology, which must be kept in good repair and up-to-date by public expenditures, may have a significant discriminatory effect, is one of the unexpected lessons of election 2000. Thus, in optical-scanner counties, only 1 percent of the ballots registered no presidential selection, whereas 4 percent of the ballots in punch-card counties registered no choice. Such a differential strongly suggests that the rate of ballot invalidation can be reduced by public investment in better equipment. Contrariwise, an existing asymmetry that broadly favors Republicans can be consolidated, intentionally or inadvertently, by “reducing spending to balance the budget.” Exclusively local funding of vote-tabulating machinery turns out to promote the unequal distribution of American citizenship itself.

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  The Legitimacy of the World Trade Organization

  Robert L. Howse

  “Humankind was born free but is everywhere in chains . . . How did this change happen? I am unaware of that. How can it be made legitimate? I believe I can resolve this question.” Understood in these terms, the problem of legitimacy is the central political problem of Western modernity. It arises from a consciousness that there is no higher authority to which the individual, or indeed the collectivity, naturally or self-evidently owes allegiance/obedience. The idealized synthesis of divine law and human political wisdom in medieval natural law theory had failed to offer a practical solution to the competition between throne and altar, sect and party, and its Aristotelian metaphysics and scholastic logic became the target of a new spirit of scientific inquiry and investigation. As is most explicit in the ideas of Hobbes, the problem of legitimacy and its solution have, from the outset of modernity, been bound up with the construction of sovereignty, a kind of power that, once legitimated, is supposedly insulated from challenge by competing higher authorities, whether secular or religious. Once this is appreciated, it becomes easier to understand the tortured, twisted path that the legitimacy question has taken in the sphere of international “order”—if sovereigns are themselves the exclusive object of legitimate obedience/allegiance, how is it possible to even think of the possibility of a legitimate power above and beyond the sovereign? There is a time-honoured tradition of finessing this problem through basing the legitimacy of international institutions on the consent of sovereigns themselves; this finesse gains its plausibility from an attractive analogy between the consent of sovereigns to institutions above them and the basis of the sovereigns' own legitimacy, namely the real or hypothetical consent of the individuals over whom they exercise power. But there is a problem with this analogy, for the second kind of consent is both necessary and sufficient, according to contractarian strands of modern political theory, to establish the sovereign's monopoly of violence or force over its citizens; it is a contract between the would-be citizens themselves to surrender the natural power and freedom of each to the sovereign. Yet in the case of consensual commitments of sovereigns to one another, there is no super-sovereign, as it were, to enforce the contract against a violating sovereign through the application of irresistible force. If such a super-sovereign were to come into being, then we would have, effectively, not an international institution but an empire—in the absence of which, what constitutes the consent of sovereigns is merely a kind of forbearance or attitude of aristocratic comity among equals. This explains the manner in which the issue of legitimacy often gets raised in contemporary discussions of international law and institutions by advocates of these institutions namely, as a means of inducing, persuading, or seducing sovereigns to comply with what they have agreed to, not as a justification for a monopoly of irresistible force but as a palliative for its absence. Yet the critics of international institutions also raise the issue of legitimacy, as a response to the perception not that these institutions have no, or little, power, but too much. Thus, cross-cutting the legitimacy issue is a question about the nature, salience, and location of power. Sovereigns use international organizations as a means of legitimizing their own power or transposing to another site the question of the exercise of sovereignty within the state—if the WTO or the IMF legitimates a certain policy choice by sovereigns, then what in turn legitimates the WTO or the World Bank? The bureaucrats within the organizations, or their technocratic friends on the outside, respond by putting the ball back in the court of the sovereigns—there is no power here, only consensual choices of sovereigns, the organization being a mere servant of its members, or an administrator of their ex ante choices. We cannot, without further inquiry, be sure that the legitimacy question, posed to international organizations, is not a trap or a distraction from its urgency at the level of the sovereign state. And conversely, a finding that these organizations lack legitimacy need not result in pessimism or despair, even if we are inclined to support the kinds of policies which it is their rationale to further—the implication might simply be that the legitimacy question must be answered in a different place.

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  Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization

  Robert L. Howse and Makau Mutua

  Since the late 1980s, the ascendency of market economics coupled with a revolution in information technology has accelerated the process of globalization while institutions of international governance have been unable or unwilling to catch up. Privatization and the related phenomena of deregulation, structural adjustment and a myriad of new bilateral, regional and multilateral trade and investment agreements have proceeded without credible efforts to conceptually and practically address their impacts on legally protected human rights. This paper addresses the tensions and potential synergies between the two legal regimes governing trade and investment and human rights. Trade and investment agreements, as well as the practices of international business, must be held accountable to existing human rights law. The spirit of human rights law must frame the development of trade law if either is to achieve its goals. The ability of capital to move across borders with increasing ease in the era of globalization has implications for human rights. While human rights violations existed long before this period of rapid economic integration, the growing number of sectors covered by multilateral trade and investment agreements has set the stage for a new variety of human rights abuses which have not yet been suitably addressed. Consider the example of Nigeria where in the last decade foreign oil companies and military governments have laid waste to vast tracts of land in the oil-producing areas and responded with chilling brutality when the Ogoni people sought to protect their fundamental rights. In several Asian countries and other emerging markets, businesses and governments have supported practices which violate the rights of workers with impunity through sweatshops and child, slave, unfree, and bonded labour. At the same time, globalization has served to focus heightened attention on such practices in general, including abuses that existed before globalization but were often ignored. Global “free” trade and universal human rights regimes are both post-war phenomena. However, they have developed on parallel, separate, and sometimes inconsistent tracks. The contemporary international economic order, which is based on the push for a single global market, has its basis in the Bretton Woods System. The origins of the global trading system were laid with the International Trade Organization (ITO), which was to be an integral part of the blueprint for global peace and security after WWII. A fair international trading regime was thought to be essential to global peace. Beggar-thy-neighbour economic competition among the western countries—with escalating retaliatory tariffs and quotas—was seen as a cause of instability in Europe. Such policies were blamed for the rise of fascism, and ultimately, the outbreak of WWII. Significantly, the Bretton Woods architects were worried about more than beggar-thy-neighbour competition from overt trade barriers. The ITO was designed to address restrictive business practices and fair labour practices. Several factors, however, changed this vision and resulted in a different multilateral trading order. First, the ITO proposal failed. In its place, a minimal set of rules, concerned mostly with border measures and explicit domestic discriminatory policies against imports, was adopted. The General Agreement on Tarriffs and Trade (GATT) had virtually no institutional framework, and nothing, for example, about concerns such as fair labour practices. Secondly, with the bifurcation of the world by the Cold War, the GATT essentially became an entity for the liberalization of trade among western countries. Without a doubt, it achieved considerable success in the reduction or elimination of a range of trade barriers among these countries. Freer trade became an engine of growth for the project for economic, social and political reconstruction in Europe and Japan. The alliance of governments and private initiative were instrumental in the recovery efforts. Once developing countries began to join the GATT in significant numbers, they soon felt their needs were not addressed adequately by the post-war regime. Many were caught up in the East-West conflict. However, some minimal amendments to the original GATT agreements allowed developing countries certain exemptions or reduced obligations to liberalize trade. Ironically, developing countries were able to erect very high barriers to many of the most important exports of other developing countries, even as tariffs on products traded among the developed countries fell. The GATT, which was concerned exclusively with the negotiation and monitoring of rules for freer trade, operated in splendid isolation from the other international institutions of the post-war order. Many in GATT expressed pride and satisfaction that the multilateral trading order had made progress towards rules-based free trade while other international institutions remained paralyzed or anemic because of geopolitics.