Faculty Chapters

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  Property Rights in an Age of Transition: The Struggle Between Continuity and Change

  Richard A. Epstein

  Originally published by the Ramsey Chair of Private Enterprise, Georgia State University, this collection of essays covers three sections: 1) characteristics and culture of the market system, property rights and measuring economic freedom; 2) continuing conflicts between individual and collectivist solutions to economic and social problems; and 3) entrepreneurship and family business as driving forces in economic growth and prosperity, particularly in the United States.

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  Deregulating Union Democracy

  Samuel Estreicher

  "No King is as safe in office as a Trade Union Official;" so quipped George Bernard Shaw in a 1930 play The Apple Cart. After 40 years of federal guarantees of union democracy under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Landrum-Griffin Act),I we are no closer to the democratic ideal of active membership involvement and contested elections, let alone two-party systems. Without gainsaying that some improvements may have occurred in some places, I believe it is time to reassess the entire system of regulation of internal union affairs. The argument of this paper is that union democracy regulation is both ineffectual and counterproductive, and we should move to a system where the law is indifferent to the form the bargaining agent takes—whether it be democratic or autocratic, nonprofit or for-profit—as long as employees in the bargaining unit have low-cost opportunities to cast secret ballot votes on the economic decisions of critical importance to them.

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  Nonunion Employee Representation: A Legal/Policy Perspective

  Samuel Estreicher

  Examines the history, contemporary practice, and policy issues of non-union employee representation in the USA and Canada. The text encompasses many organizational devices that are organized for the purposes of representing employees on a range of production, quality, and employment issues.

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  Instituting Deliberative Democracy

  John A. Ferejohn

  I take it for granted that we live in an imperfectly deliberative democracy. We recognize, in many of our public decision-making practices, the norm that statutes and administrative actions ought to be the result of deliberative consideration of alternatives according to public values. We also believe that public decisions ought to be responsive in some way to the diverse views of the common good held by citizens. We also believe that everyone, directly or indirectly, is equally entitled to enter into the discussions that produce such decisions and to have has views respected and taken seriously into account in whatever public decision is reached. We lament that people don’t take much part in public life and don’t seem to feel obligated to do so. In this sense, there seems a widespread commitment to deliberative norms, even if there is less agreement as to what such norms require of us.

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  The Political Economy of Pollution Control in a Federal System

  John A. Ferejohn

  Professor Revesz has shown that the problem that federalism poses for environmental regulation arises from the fact that pollution produces interjurisdictional externalities and not from jurisdictional competition. Without externalities, Revesz has shown that competition among jurisdictions is generally welfare enhancing and attempts of the central government to impose more stringent environmental standards will only induce the jurisdictions to react by competing on some other margin. When interjurisdictional externalities exist, however, states will typically have an incentive to push the costs of industrial activity off onto their neighbors by making suboptimal locational and abatement decisions, and this may justify federal regulations. Secondly, Revesz shows that existing administrative and court practices under the Clean Air Act in the United States are inappropriate in inducing jurisdictions to internalize the costs of their polluting decisions. Indeed, he shows that, if anything, federal regulations have probably induced regulatory pathologies that have made interjurisdictional opportunism even worse than it had been. The result is that the pattern of environmental regulations is almost certainly quite perverse from a social welfare perspective. The pattern of court and agency decisions has increased the incentives for states and their industrial denizens to locate polluting plants at downwind borders and build excessively tall smokestacks, making inappropriate capital investment decisions and the like. Thirdly, Revesz argues that the lessons of US environmental regulatory policies are a valuable source of cautionary tales for the European Community and for the international community more generally.

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  The Uncitral Draft Convention on Assignment in Receivables Financing: Critical Remarks on Some Specific Issues

  Franco Ferrari

  In one of his very many publications, Professor SIEHR pointed out that the unification of international contract law can be divided into basically two periods: one which relates to the unification of the law of those contracts, such as transport contracts and the contract for the sale of goods, which are universally accepted and the unification of which did therefore not pose too many problems, and a more recent one in which efforts were being made to unify the so-called “innominate contracts”. These two periods had one thing in common: they focused mainly on the unification of specific contracts. Since 1988—when Professor SIEHR wrote those remarks—this has changed. Unification efforts are actually under way which go beyond the unification of specific contracts. This paper will focus on one of these efforts: the Uncitral efforts to unify the law relating to the assignment of receivables which after several years of preparatory work by the Working Group on International Contract Practices resulted most recently in a Draft Convention on Assignment in Receivables Financing submitted to the Commission at its session held in New York, 12 June to 7 July 2000. Given the limited space allocated to this paper, I will be able to focus only on a few issues raised by the elaboration of the Draft Convention, such as its sphere of application, the general provisions as well as its provision on the conflict of conventions. The reasons I picked these issues relate to the need to put these unification efforts into a perspective which, although the starting point of any unification effort, seems to have been forgotten: the need to create one uniform law. The elaboration of new international uniform law conventions which are not coordinated among themselves and/or with already existing instruments merely leads to a multiplication of the sources of law and, thus, to a result contrary to that aimed at by trying to elaborate those very same uniform law conventions. In this respect, it is not sufficient, however, to complain about the lack of an overall unification plan. This is why this paper will merely discuss issues dealt with by the Draft Convention which are also dealt with by other international uniform law conventions, thus trying to emphasize the need if not of an overall unification plan, at least that of a uniform method in approaching specific problems and of the use uniform concepts.

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  Misconceptions, Misdirections, and Mistakes

  Franklin M. Fisher and Daniel L. Rubinfeld

  The chapter by David S. Evans and Richard L. Schmalensee is probably the most coherent version of the Microsoft defense that has yet been produced. That does not mean that it is right, however. Indeed, it is filled with misconceptions, misdirection, and mistakes. Space does not permit a complete discussion, so we comment on a few major points, some of which we discussed at greater length in chapter 1.

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  United States v. Microsoft: An Economic Analysis

  Franklin M. Fisher and Daniel L. Rubinfeld

  In May 1998, the U.S. Department of Justice, claiming a number of violations of Sections 1 and 2 of the Sherman Act, filed suit against the Microsoft Corporation. The case was tried in the U.S. District Court of the District of Columbia from October 19, 1998, through June 24, 1999. Judge Thomas Penfield Jackson ruled as to the findings of fact on November 5, 1999. As this chapter is drafted, the parties have prepared briefs on proposed conclusions of law and are involved in settlement discussion. If the parties reach no settlement and Judge Jackson rules in favor of the Department of Justice, remedy issues will then come into play. This chapter presents perspective and commentary on the economic issues from the viewpoint of two economists who were active in the case. Franklin M. Fisher was one of the U.S. government’s economic witnesses at the trial, and this chapter is based in part on his testimony. Daniel L. Rubinfeld was deputy assistant attorney general for economics in the Antitrust Division during much of the investigation. During the trial he was deputy assistant attorney general and later a consultant for the U.S. government. Our roles as testifying expert and chief economist at the Antitrust Division, respectively, carry with them the advantage of seeing the issues from the inside as participants and the disadvantage that one’s perspective is inevitably affected by one’s own viewpoint. Because our goal is to explicate the merits of the government’s case and to highlight important issues, we hope that the advantages will outweigh any disadvantages.

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  Neutral Principles

  Barry Friedman

  “Neutral principles” refers to a debate that took place throughout the late 1950s and the 1960s (and still resonates today) regarding the role of the judiciary in American democracy. Participants in the debate were, for the most part, law professors and judges, but their debate spilled into the broader society in the form of widely publicized speeches and articles published in the popular press. In essence, the debate was about whether there is a way to distinguish the judicial function from ordinary politics, and about the power of judges to strike down laws as unconstitutional. The neutral principles debate arose in the context of controversial decisions rendered by the Supreme Court under the leadership of Chief Justice EARL WARREN. In 1954, the Court decided BROWN V. BOARD OF EDUCATION, which ordered the DESEGREGATION of public schools. The Court was criticized, especially in the South, but academic commentary for a time was largely positive. Then, in 1957 and 1958, the Court decided a number of cases favoring the rights of Communists and communist-sympathizers, and there was a strong backlash against the Court in some quarters. It was against this backdrop that, in February 1958, Judge LEARNED HAND delivered his famous Holmes Lecture at the Harvard Law School. Hand was regarded as one of the preeminent judges in the country. His address surprised many people, for in it he was very critical of the Court. Hand attacked the idea of an activist judiciary, and even took the Court to task for its decision in Brown. The following year, Professor Herbert Wechsler delivered his Holmes Lecture, entitled Toward Neutral Principles of Constitutional Law, in which he responded to Hand. Wechsler supported the idea of JUDICIAL REVIEW, but insisted that when courts decide constitutional cases, the most important factor is that they reach their decision by applying “neutral principles” that “transcend the case at hand.” Although he said he personally favored the decision in Brown, Wechsler was unable to identify a neutral principle equally applicable to “a Negro or a segregationist” that made it clear that the Constitution's requirement of EQUAL PROTECTION OF THE LAWS required the desegregation of schools. According to Wechsler, Brown was about the FREEDOM OF ASSOCIATION, and he could not find a way to choose between “denying the association to those individuals who wish it or imposing it on those who would avoid it.”

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  Ideas, Institutions and Situational Crime Prevention

  David W. Garland

  Situational crime prevention (SCP) is a set of recipes for steering and channelling behaviour in ways that reduce the occurrence of criminal events. Its project is to use situational stimuli to guide conduct towards lawful outcomes, preferably in ways that are unobtrusive and invisible to those whose conduct is affected. Institutions, as Mary Douglas (1986) has shown, work in similar ways. Their institutional routines and practices, their distinctive ways of organizing the flow of social life, have the usually unnoticed consequence of channelling the thinking and acting of those caught up in them. The effect of embedded institutional arrangements (such as the criminal justice system) is to gently guide our thought and action in predetermined directions, shaping how we think about problems (such as crime) and how we routinely respond to them (e.g. by processing and punishing individual criminals). What interests me most about the recent rise to prominence of situational crime prevention is its apparent success in breaking free of some of the institutionalized patterns of criminological thought and action that have prevailed for most of the 20th century. Without wishing to overstate the matter, or to attribute too much importance to this otherwise rather modest development, I want to suggest that situational crime prevention marks a break with the institutional epistemology that has characterised criminological thought and action for most of the modern period. Understanding the nature of that ‘epistemological break’ (to give an absurdly grandiose but actually quite accurate name to the event in question) and explaining how it came about, will be the purpose of this paper. The striking thing about the premises and propositions of situational crime prevention is how very simple, how very mundane, how very straightforward they appear once they have been explicitly articulated. As an account of how crime events occur, and as a practical means for reducing the occurrence of these events, SCP has all the seeming obviousness and simplicity of common sense. Indeed, the commonsensical character of their diagnoses and prescriptions clearly appeals to the chief proponents of SCP—who take pains to stress that their insights derive not from fancy theorising or a close reading of criminological literature but simply from attending to the practical world and observing how it works. They like to think that the truth claims of SCP should be apparent to anyone, so long as they can shake themselves free of the legacy of criminological theory and see the world for what it is. SCP thus presents itself as a layperson's criminology; as an empirical account of crime and a pragmatic account of what to do about it. And insofar as it entails an account of offenders and the processes that motivate their offending—that is to say, a criminological theory in the conventional sense of the phrase—SCP offers an account that seems equally simple and straightforward. Offenders are, for the most part, deemed to be normal, mundane individuals who give in to temptation as and when criminal opportunities arise. The common sense wisdom of age-old aphorisms tells us all we need to know: ‘Opportunity makes the thief’.

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  The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society

  David W. Garland

  The article offers a descriptive analysis of strategies of crime control in contemporary Britain and elsewhere. It argues that the normality of high crime rates and the limitations of criminal justice agencies have created a new predicament for governments. The response to this predicament has been a recurring ambivalence that helps explain the volatile and contradictory character of recent crime control policy. The article identifies adaptive strategies (responsibilization, defining deviance down, and redefining organizational success) and strategies of denial (the punitive sovereign response), as well as the different criminologies that accompany them. One insight that Friedrich Nietzsche shares with Emile Durkheim—perhaps the only insight shared by these very different thinkers—is that strong political regimes have no need to rely upon intensely punitive sanctions. Punitiveness may pose as a symbol of strength, but it should be interpreted as a symptom of weak authority and inadequate controls. The most visible and striking phenomenon of recent penal policy in Britain and the USA is the punitiveness which has come to characterize prominent aspects of government policy and political rhetoric. In what follows, I will seek to identify the weaknesses and limitations that motivate this display of punitiveness and to point to some of the problems of power and authority that lie behind it. I also want to describe some quite different strategies of crime control that have been prompted by these same weaknesses, and that are emerging—rather less visibly—alongside the recurring recourse to punitive display. This second set of strategies is quite different in character from the punitive current and bears a complex relation to it. I will characterize these strategies as adaptations to the current predicament of crime control, whereas the punitive strategy will be described as a symbolic denial of that predicament. I will go on to suggest that this dualistic, ambivalent, and often contradictory pattern of crime control is underpinned by a similarly dualistic and ambivalent pattern of criminological thinking, involving a split between what I term a ‘criminology of the self’ and a ‘criminology of the other’. My argument will be that this is a contradictory dualism expressing a conflict at the heart of contemporary policy, rather than a rationally differentiated response to different kinds of crime. I take as my point of departure the predicament of crime control in late modern society and the reactions to this predicament on the part of state agencies. I want to focus on the problem of crime control as it is perceived and managed by the agencies and authorities involved, and to trace how these perceptions and administrative strategies have changed over time. That broader social and cultural forces play a part in shaping the 'problem' and its ‘perception’ is taken for granted—and largely unexplored—in the present paper. My analysis will be based upon trends which are discernible in Great Britain, although there is evidence to suggest that similar trends are also present in the USA, Australia and elsewhere.

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  The New Criminologies of Everyday Life: Routine Activity Theory in Historical and Social Perspectiv

  David W. Garland

  Criminological theory has adapted in interesting ways to the structural conditions of late modernity—conditions in which high crime rates are a normal social fact and the limited effectiveness of criminal justice is widely acknowledged. The most fundamental aspect of this development has been the shift in the discipline's focus away from theories of social deprivation (or relative deprivation) towards explanations couched in terms of social control and its deficits. ‘Control’ is the defining term of the new problematic—social control, self-control, situational control—and criminologies that are otherwise quite opposed nowadays share this common problem-space. We can see this clearly if we consider ‘the new criminologies of everyday life’. The appearance of a revised edition of Marcus Felson's text Crime and Everyday Life (1998), originally published in 1994, offers an opportunity to consider the characteristics of this new criminological genre in a little more detail. Felson's book is particularly apposite for this purpose because in this new edition Felson has expanded his account to merge routine activity theory with the themes and insights of the other criminologies of everyday life, most notably situational crime prevention, lifestyle analysis, and rational choice theory. If there is a text that exemplifies this new genre, then this is undoubtedly it. The acknowledged background to the new criminologies of everyday life—like their contrasting counterpart, the ‘criminology of the other’—is the emergence, since the 1960s, of comparatively high levels of crime and violence as stable features of the social structure and culture of late modernity—levels that remain high despite the significant declines of recent years. Felson's response to this, which I take to be typical of his genre, is adaptive, pragmatic and focused upon everyday social practices: we need to understand the ways in which our daily activities produce criminal opportunities and we need to invent routine precautions that will minimize these. This, of course, is by no means the only possible response to the normality of high rates of crime. William Bennett's and his co-authors' recent book Body Count: Moral Poverty and How to Win America's War Against Crime and Drugs (1986) responds in a strikingly contrary manner by identifying an immoral culture as the ‘root cause’ of the ‘crime epidemic’ and calling for a concerted moralising effort, a renewal of religious faith, and drastic enhancements of penal and welfare controls. In rhetorical, political and criminological terms these two positions could not be more different. One response presents a ‘criminology of the self’, refusing to draw lines between offenders and the rest of us, characterizing criminals as rational individuals who respond to temptations and controls in much the same way as anyone else. The other revives the ancient 'criminology of the other', of the threatening outcast—Bennett and his colleagues talk of the ‘superpredator’—who is deeply marked by moral deprivation and a profound lack of empathy and impulse control. One criminology de-dramatizes crime, seeks to allay disproportionate fears and promotes routine preventative action. The other demonizes the criminal, works to arouse popular fears and hostilities, and strives to excite popular support for drastic measures of control. But both share a common situation (as responses to the pervasive crime problem and the limits of the criminal justice state), both share the new emphasis upon the enhancement of control (situational controls in one case, social and moral controls in other), and both represent significant shifts away from the liberal and conservative positions that characterized the earlier period of correctionalism. Felson's criminology emphasizes the ways in which criminal opportunities are structured by, and arise out of, the recurring transactions and routines that characterize daily life. In his account, the ‘chemistry of crime’ can be reduced to the interaction of three vital elements—a likely offender, a suitable target, and the absence of a capable guardian against the offence. The ways in which these elements are made to coincide in time and space is a function of our social arrangements and everyday routines. The commute to work, our leisure time activities; the flow of customers through a shopping mall; the daily passage of teenagers as they go to and from school or home; the rapid circulation of goods and cash - these are the patterned activities that make crime a built-in feature of our social organization.

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  Products Liability

  Mark A. Geistfeld

  Designing the products liability system to promote efficiency is justifiable because the injurer (seller) and victim (consumer) typically are in a contractual relationship. Contracting will not lead to efficient outcomes when consumers undervalue the benefits of seller liability, as would occur, for example, when consumers underestimate product risk. Although tort liability often would reduce product risk in these situations, forcing sellers to pay for product-caused injuries is likely to increase the average cost of injury compensation. This tension between safety and insurance considerations makes it difficult to reach firm conclusions regarding the efficiency properties of the main products liability doctrines. Nevertheless, in many instances the legal rules do not depend upon the relevant economic considerations, suggesting that the current system could be made more efficient. Products liability—the body of law governing the allocation of losses caused by product use—has rapidly gained prominence over the past 50 years. The importance of products liability stems from the substantial social cost of product-caused injuries. According to government data, product accidents in the United States cost roughly $50 billion per year. These data are crude, however. Relying on survey evidence, Hensler et al. estimate that accidents in the United States, excluding those resulting in latent injuries, institutionalization, or death, impose direct and work-loss annual costs of $175.9 billion or 4 percent of Gross National Product. Approximately 30 percent of these accidents involved product use, and another 18 percent were associated with motor-vehicle use. The social cost of nonfatal product accidents is substantial, then, and including fatalities and latent injuries (like those caused by exposure to toxic substances) considerably increases the total. The magnitude of these losses and the volume of product transactions indicate that products liability rules have a significant impact on producers, consumers, and the general economy. Consequently, products liability has become one of the most important, and politically controversial, forms of civil liability. Legal scholars who analyzed the emerging field of products liability rarely addressed efficiency concerns. Similarly, court opinions in products liability cases have paid little or no explicit attention to efficiency. But as the economic analysis of products liability has developed over the past few decades, so too have legal decision-makers become more concerned about the economic consequences of these liability rules. Today efficiency considerations often strongly influence the formulation of products liability laws, as reflected by the Restatement (Third) of Torts: Products Liability. This emphasis on efficiency is defensible. Sellers include their liability costs in the product price. Consumers (potential victims) accordingly pay for and receive the benefits of tort liability, so their preference for efficient liability rules—those that maximize the net benefit of seller liability—should govern. By analyzing products liability with an economic perspective, it becomes apparent that this body of law could be merely a specific application of contract law, since if unregulated market transactions were efficient, courts would only have to enforce contractual allocations of product risk in order to ensure efficient outcomes. Many product-caused injuries are governed by tort law, however, making it necessary to identify the market failures that may justify tort regulation. Sections 2 through 10 accordingly develop the economic framework for evaluating different liability rules. Sections 11 through 13 describe the impact that the products liability system has had on product safety, innovation, and the market for liability insurance. The remaining sections discuss the efficiency properties of the main doctrines in products liability.

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  The Path Dependence of the Law

  Clayton P. Gillette

  Any legal system that relies on precedent necessarily confronts conflicting objectives. Precedent constrains decision makers (judges and juries) who might otherwise have idiosyncratic preferences and permits the law's subjects to predict the consequences of their conduct. But precedent simultaneously limits the capacity of decision makers to adjust to new conditions and, arguably, discourages detection of those changes by reducing the need for judges to justify their decisions, as long as they discern no novelty in the case they are deciding. This tension between the conflicting characteristics of a precedential system both explains and disputes a major theme of The Path of the Law. Much of that essay portrays tradition in the law as worthy of ridicule. While the villain is often legislators rather than judges, the phrases that Holmes employs to critique the use of tradition as a basis for decision (“the pitfall of antiquarianism” by which “tradition . . . overrides rational policy”) suggest that, in the adjudicative context, reliance on precedent does not simply frustrate legal evolution but subjects legal doctrine to misapplication and inappropriate extension. This view, however, appears distorted once one considers a broader range of Holmes's writings as commentator and judge. Notwithstanding the strong language in his celebrated essay, his earlier lectures on the common law and his judicial opinions reveal a more measured and more complex role for precedent in the development of legal doctrine. At times, judicial invocation of tradition, embodied in the practice of following precedent without further investigation into the propriety of the preexisting rule, played the role of scoundrel, but at times Holmes himself invoked tradition as a substitute for ad hoc analysis—the very sin against which The Path of the Law admonishes others. My objective here is not to chide Holmes for inconsistency, certainly not for drafting opinions at odds with an essay written in the early stage of his judicial career. Taking The Path of the Law in isolation seems a dangerous strategy in evaluating Holmes's beliefs over his lifetime. Moreover, if precedential systems generate the conflicting values that I have mentioned, then there may be times when each of the values trumps the other, so that apparent inconsistencies may simply reflect the reality that a factor that dominated in one context was subordinated in another. Indeed, that is precisely the result implicit in Holmes's conception of economic reasoning in the law, which requires balancing the costs of tradition in any case against its benefits. On that understanding, whether precedent is ultimately overutilized or underutilized depends on the ease with which judges distinguish “bad” precedent from “good” and weigh precedents as applied in a given case. Thus, rather than simply contrasting Holmes's hostile reaction to and hospitable use of precedent, my objective here is to explore the claim implicit in The Path of the Law about the hold that tradition has on law's content. A strong reading of Holmes's antipathy toward tradition would be that substantive doctrine, once established, becomes locked in or frozen. Legal doctrines that would have been adopted were decisionmakers writing on a clean slate are instead rejected or simply not considered. Law, on this theory, does not depend on a rational process directed at implementing a particular social, political, or economic view. Instead, it reflects contingencies that arose for reasons unrelated to current needs but that, once established, determine subsequent developments. Critically, Holmes implies, tradition does not simply displace reason but does so “after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning”. The claim that law is path dependent, in the sense that prior doctrine determines the content of current doctrine, may be noncontroversial. Holmes's critique goes farther than a positive claim, however, and asserts that legal doctrines rooted solely in tradition are undesirable. At first glance, the Holmesian objection strikes one as odd. First, it seems incongruous in light of Holmes's insistence that the study of law consists of prediction. One might imagine that binding litigants to previously adopted positions would enhance rather than diminish the predictive character of legal study. What makes prediction possible is the ability to rely on future adherence to rules previously laid down, and that practice implicitly recommends following tradition. (This is not to deny Judge Richard A. Posner's claim that precedents are not the law, under the prediction theory; the law is only the prediction about what courts will say when a case comes before them. Posner's interpretation suggests that a Holmesian legal system could evolve to meet the necessities of the particular time, as long as one trying to discern “the law” could determine when the need for certainty was overridden by the absence of fit between the preexisting rule and current social preferences. But even this understanding of the prediction theory of law admits that precedents, and hence traditions, “are essential inputs into the predictive process,” in part because we expect judges to begin the analysis of current cases with attention to relevant precedents.)

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  Child Welfare Policy and Practice in the United States from 1950-2000

  Martin Guggenheim

  Although there has been a foster care system in place in the United States for well over 150 years, for much of that period—up to the 1970s—most children in foster care had been placed there by parents who were temporarily unable to care for them. Formal coercive state intervention to protect children from harm was left largely to the criminal legal system through prosecution for such criminal acts as homicide, assault, and endangering the welfare of a minor. Beginning in the 1830s, almshouses were built for the poor, the insane, and orphans. The few entities paying attention to children’s well-being in the United States were private associations, which were commonly affiliated with religious organisations. It was only in the twentieth century that specialised juvenile courts were formed. Outside of child labor protections, the federal government’s first venture into the child welfare arena was the passage of the Social Security Act of 1935. That law established the Aid to Dependent Children program, which offered cash assistance to enable poor, single mothers to care for their children.

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  Rights into Action: Public Interest Litigation in the United States

  Helen Hershkoff and David Hollander

  This chapter examines the Ford Foundation’s support of groups that use litigation to promote equality and justice for racial minorities, women, and immigrants in the United States. Since becoming a national foundation in the 1950s, Ford has played an important role in supporting the efforts of inspired civil rights lawyers to develop a network of organizations dedicated to using law to improve conditions and to promote equality for historically marginalized groups. Through seed funding, core financial support, and capacity-building grants, the Foundation has helped to sustain these organizations during the changing political climate of the late twentieth century. Although the Foundation supports a broad set of strategies in its U.S. law programming—including public education, community organizing, and coalition building— this case study focuses on Ford’s support of litigation to effect social reform. Moreover, although Ford’s promotion of law-based work spans the nearly half century of the Foundation’s history, this case study focuses on the 1980s and 1990s, and is current as of mid-1999. Ford’s support of groups undertaking public interest litigation in the United States draws on a moral commitment shared by the Foundation and its grantees to social justice and to rule of law values. It also rests on the pragmatic view that judicially precipitated reform can help to remove discriminatory barriers, to expand opportunities, and to improve conditions for historically underrepresented groups. The Foundation recognizes, however, that the concept of social change is ambiguous; the literature on public interest litigation offers no single definition of “success.” Some commentators criticize public interest litigation as a failed strategy that short-circuits the political process and produces few, if any, long-lasting successes. Reading the same evidence, other commentators declare victory for civil rights litigation, but urge a refocusing of effort on public education, legislative reform, and political mobilization. Still others point to litigation’s unintended adverse consequences—including bitter political opposition—and emphasize the need for consensual solutions to divisive social problems. Finally, some observers recognize the limits of court-initiated reform, but recommend its continued support as part of a multipronged strategy to expand social justice and to preserve victories against erosion and assault. This case study addresses many of these concerns. Looking at the work of some of the Foundation’s grantees over the last two decades, the study illustrates the process of public interest litigation in the United States and identifies some of the factors framing its strategic use. The study does not claim to be scientific or comprehensive; it does not discuss, for example, Ford’s significant support of legal services for the poor during this period. Nor does the case study provide an audit of grantee work. Rather, through a sampling of the Foundation’s law grantees—in women’s rights, minority rights, and immigrant and refugee rights—the authors glean lessons from the use of litigation to change public policy; to enforce, implement, and monitor change; and to mobilize and empower members of historically disadvantaged groups. The authors conclude that public interest litigation has been and remains integral to a holistic social change strategy that may also include community mobilization, leadership and economic development, media outreach, policy analysis, and empirical research. The chapter first provides a brief institutional history of Ford’s support of civil rights litigation in the United States and then describes the adjudicative campaigns of particular grantees in such diverse fields as school finance reform, reproductive choice, and land-use planning. Within specific U.S. contexts, the study then discusses the strengths and weaknesses of litigation as a social change strategy and explores how grantees have used media and other public education activities to mitigate some of the potential risks and disadvantages of court-based activities. Finally, the study draws some general lessons that may be of use to advocates, donors, and policy analysts in considering when, whether, and how to use public interest litigation as a way to support social change. The chapter concludes with a brief look at future challenges, emphasizing the need for continued and sustained philanthropic support of public interest litigation as part of a social change strategy for historically marginalized groups.

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  Public Interest Litigation: An International Perspective

  Helen Hershkoff and Aubrey McCutcheon

  This chapter provides an international perspective on public interest litigation by looking at the work of a sampling of Ford Foundation grantees that use public interest litigation in a number of ways to improve conditions for disadvantaged groups, such as the poor, women, and religious and ethnic minorities. Litigation can help to reform existing laws that hinder or prevent members of these groups from participating fully and fairly in society. It can enforce rights that existing laws guarantee, but are not followed in practice. Litigation can complement a broader political movement, or foster mobilization and encourage alliances that then produce political action. Furthermore, litigation can help change attitudes toward the law and create a culture in which government and private entities respect and enforce human rights values. The Foundation first supported groups undertaking public interest litigation in the United States during the 1960s. In the following decades, the Foundation increased the range of its geographic commitment, and grantees now undertake litigation in many countries in Latin America, Asia, Africa, the Middle East, and Eastern Europe. These nongovernmental organizations address a broad range of social concerns—from job discrimination in China, to wrongful imprisonment in Peru, to violence against women in Poland. They use a variety of creative strategies and often work against great odds, nevertheless winning significant courtroom victories that seek to enforce human rights, to change entrenched practices and laws, and to encourage political consensus for social improvement. An earlier chapter of this volume focuses on public interest litigation in the United States. This chapter turns attention to the equally important work of the Foundation’s grantees in other parts of the world. The first part of the chapter provides an overview of public interest litigation, examining its goals, approaches, and structural adaptations in a global context. The second part highlights the specific litigation efforts of Ford grantees in Nigeria, India, and parts of the Middle East, Latin America, and Eastern Europe.

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  Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence

  Robert L. Howse

  The creation of the World Trade Organisation (WTO) in 1995 has often been identified with the establishment of a system for adjudicative resolution of disputes which, in its effectiveness and sophistication, surpasses what has been achieved by other international tribunals, such as the International Court of Justice. Under the WTO, member states have access to dispute settlement as of right. A ruling will be adopted as binding unless all the members, including the winning party, vote against its adoption (negative consensus). Determinations of when and how the losing party must act to implement a ruling are subject to arbitration. Should the losing party not implement a ruling in accord with the findings of the arbitrator, retaliation (a withdrawal of trade concessions to the losing party by the winning party) is automatically authorised. This chapter looks at the legitimacy of adjudication and dispute settlement during the first four years of WTO jurisprudence. The role of fair procedures as well as integrity and coherence in legal interpretation in the legitimation of adjudicative decisions is examined.

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  Managing the Interface between International Trade Law and the Regulatory State: What Lessons Should (and Should Not) Be Drawn from the Jurisprudence of the United States Dormant Commerce Clause

  Robert L. Howse

  Increasingly, the application and interpretation of international trade law engages the dispute settlement organs of the World Trade Organization with the contemporary regulatory state in its full complexity. Whether in determining if required risk assessment procedures for health and safety regulations have been followed in interpreting the TBT and SPS codes, or deciding if a Member has respected the criteria for compulsory licensing of patents in the TRIPs Agreement, including “adequate remuneration” to the patent holder, or in the application of Art. XX of the GATT to environmentally-based trade measures, WTO panels cannot avoid making complex trade-offs between free trade and other public values. This raises fundamental issues of democratic legitimacy, far beyond those implicit in what might have appeared to be the character of the multilateral trading order in the past—a bargain about tariff reductions, with a code of conduct to help ferret out cheating on the bargain. From the perspective of the traditional trade policy elites, under the GATT domestic regulation tended to fall on one side or the other of a bright line, dividing entirely evil “cheating” from entirely benign “normal” domestic regulations. Not entirely surprisingly, the difficulty with such an approach became apparent once GATT panels were faced with determining whether measures that violated trade rules could be justified on the basis of other objectives and values, as provided for in Art. XX of the GATT. In the Tuna/Dolphin disputes, GATT panels, somehow intuitively sure that unilateral measures to protect the global environmental commons didn't fit within their image of the “normal” regulatory state, resorted to a number of spurious distinctions, unsupported by the text of the General Agreement, to avoid directly facing a conflict of values. In the Thai Cigarette case, shortly before the Tuna/Dolphin decisions, a panel had applied a least restrictive means test in order to find that Thai measures targeted at foreign cigarettes could not be justified as “necessary” for the protection of human life and health under Art. XX(b) of the GATT: the panel dreamed up a range of hypothetical less trade-restrictive measures that could have been chosen (such as anti-smoking advertising campaigns), with no sensitivity to and little interest in the real policy world in which the Thai regulators lived. A legal economist can always imagine a hypothetical welfare-maximizing regulatory instrument that achieves a public purpose without resort to trade restrictions; the logical conclusion is that the choice of any other instrument is due to protectionist pressures. It is easy to see why such a construct would be attractive to trade diplomat panelists, for it avoids the impression that there is any need to adjudicate competing values at all. Yet in the real world, the “first best” instrument may create serious compliance problems; cultural norms may make Western-style ad campaigns ineffective; a tax may be more efficient than command-and-control regulation but may face constitutional problems or may skew more general fiscal policies. In the real world of regulation, policy makers face hard choices, and need to address difficult normative trade-offs. With the WTO Appellate Body now requiring rigor and consistency in the interpretation of WTO legal instruments, the free manipulation of legal concepts and texts by trade diplomats to produce results that correspond to their own intuitions about what is protectionism and what is normal regulation is increasingly less viable. In any case, where dispute settlement rulings fail to take into account legitimate public values other than trade liberalization itself, this will risk provoking even more severe legitimacy crises than those provoked by the Tuna/Dolphin rulings—more severe at least in part because under the negative-consensus rule of the WTO DSU, the safety valve of non-adoption through a veto of the losing party is no longer available. Where then to tum in order to educate WTO panelists (and to some extent the Appellate Body, too) in the kind of institutional sensitivity appropriate to review of domestic regulation in the context of adjudicating potentially competing values? One rather obvious place might be to the internal economic integration jurisprudence of federal states. The courts in the United States, for example, have passed through, as it were, their era of “Lochnerism,” where they acted as protectors of some kind of natural, laissez-faire baseline against what were viewed as the intrusions of a growing regulatory state. They have developed a set of techniques for engaging in constitutional and administrative law review of regulatory action, which show a degree of appreciation for the need for democratically legitimate institutions to trade off competing values. In addition, there is a body of sophisticated legal scholarship which addresses itself to the institutional strengths and weaknesses of courts in relation to other agencies, in addressing the various empirical and conceptual questions that surround the rationality of and justification for regulatory action.

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  Transatlantic Regulatory Cooperation and the Problem of Democracy

  Robert L. Howse

  This chapter sketches several models of democracy by which programmes of regulatory cooperation may be domestically legitimized. Of these, the author finds two to be especially promising. First, transatlantic regulatory cooperation may be legitimized in terms of ‘competitive federalism’ to the extent that it promotes regulatory information flows across borders, thus allowing persons in different jurisdictions to test the quality of domestic decision making against alternative regimes elsewhere. Second, a complementary ‘deliberative’ model of democracy may impel governments to undertake explicit and rigorous analysis of risks, to consider closely alternative instruments for addressing those risks, and to incorporate non-governmental organizations into the processes of regulatory cooperation as deliberative intermediaries.

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  Federalism

  Robert P. Inman and Daniel L. Rubinfeld

  With a topic such as federalism that has been so widely debated from so many perspectives, it would be impossible to provide a comprehensive review of the literature. Rather, we provide a particular perspective, one that balances the twin goals of political participation and economic welfare. To fashion such a balance, we first review the potential virtues of each federalist structure. We conclude that political participation rises with increased decentralization, but economic efficiency first rises and then falls. It is when efficiency declines that we face a trade-off. The choice of an ‘optimal’ level of decentralization ultimately depends upon the relative importance one places upon the competing federalist values of economic efficiency and political participation. JEL classification: K33, H11. Keywords: Political Participation, Voting by Feet, Tiebout, Decentralization

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  Contracting for Employment: The Limited Return of the Common Law

  Samuel Issacharoff

  Over the past ten to fifteen years, the common law has returned to the field of the law governing employment. A number of factors had contributed to the relative obscurity of the inherited presumption of at-will employment as the "norm" in the American workplace. The decline in the role of the common law resulted, in part, from the emergence of unions and their collective bargaining powers, the dramatic growth in the public sector and its attendant constitutional constraints upon employee discipline and discharge, the emergence of a strong regulatory apparatus overseeing the public consequences of private employment, and the far-reaching constraints upon managerial discretion that fell under the general rubric of antidiscrimination law. In part as well, the common law receded in importance because of the growing disutility of doctrinal components such as the independent consideration requirement in contract law and the constricted proof for tortious interference with professional opportunity. But re-emerge the common law did. Unions dwindled, leaving open a wide array of claims of deep injustice to the lifelong aspirations of working people. The economy turned down and then entered a period of rapid reorganization. The post-War pattern of relatively stable career employment for key sectors of the workforce began to fray. The result was a re-emergence of claims uncomfortably fitted into the familiar common-law forms of contract and tort. There is little dispute about the re-emergence of a common-law component to the overall legal regulation of the workplace. There is also a general consensus that the application of legal doctrine to these new employment claims has been rather helter-skelter. As many commentators have noted, there is more than a touch of doctrinal peculiarity accompanying decisions purporting to rest on formal contract law but presuming that all of the elements of a contract exist, or those that find a public policy tort based on highly contestable articulations of basic societal values. Early scholarly reviews of the renewed common-law engagement with the at-will rule focused primarily on chronicling the fate of this century-old doctrine at the hands of the contemporary common-law courts. To a large extent, these early reviews drew heavily from labor law scholarship and were highly influenced by the strengths and limitations of analogies to the union sector. As a general matter, these reviews applauded efforts at providing legal protection to the job-holdings of unorganized workers, with the common-law courts serving as a rough proxy for the grievance and arbitration systems found in union shops. The publication of Paul Weiler's Governing the Workplace in 1990 marked the fullest expression of the labor-law based review of the emerging common law. Weiler's book also represented the first systematic effort to bring independent tools from comparative law and from economic analysis to bear on the nascent debates over the new common law. Weiler and other commentators drew on the labor economic analysis of post-War American employment as reflecting a “life-cycle” or “career-term” relationship. The conception of a career-term helped explain some of the anomalous features of employment contracts, most notably the tendency for wages to rise steadily over an employee's career even when there are no increases in productivity, and the manifest inability of older employees to find comparable employment if fired or laid off. “Life-cycle justice,” to use Stewart Schwab's title from a critically important Michigan Law Review article, also provided a coherent explanation for the apparent solicitude of common-law courts for late-career employees, regardless of the actual doctrinal explanation for their holdings. Although the life-cycle model holds promise as a justificatory explanation for why the courts may be acting as they do, Schwab went one step further and tried to fashion a doctrinal coherence in the common law based on an imputed and intuitive judicial understanding of this economic model of the employment contract. This in turn prompted a strong response from Professor Verkerke, not only challenging the empirical validity of Schwab's claim of doctrinal incorporation of the life-cycle model, but arguing for the desirability of the continued use of the at-will default rule. According to Verkerke, a departure from the at-will presumption not only is uncalled for, but also would violate the desires of contracting parties as evidenced by an empirical study of what parties actually contract for. I wish to enter this debate, even though cognizant of its limitations. The career-term model of employment has suffered serious disrepair in the past fifteen years. In fact, the disruption of long-term employment relationships is what prompted the sudden development of doctrinal pressure on common-law courts, as mid- and late-career employees sought legal redress for their dashed employment expectations. Economic reorganization has brought with it an increase in part-time, more marginalized employment even among the fully employed. Nonetheless, it is those employees who continue to work in the career-term sector of the workforce that bring the current crop of cases before the courts. And the re-emergence of the common law is the predicate for the liability judgements observed in studies by the RAND Corporation and Professor Edelman, which in turn serve as the backdrop for the contracting behavior of employers surveyed by Professor Verkerke. My efforts in this chapter will be focused on the incompleteness of the contractual bargain at two critical times in a life-cycle relationship: at the formation of the contract and at its final stages. My aim is to draw upon some of the insights available from economics, psychology and game theory to illuminate the limitations of narrow contractual interpretations of the employment relationship. I will conclude by arguing for a limited “penalty default” in the interpretation of early-stage contract formation and for an analysis of late-stage employment relatively untethered to the initial contract formation. This paper aims to manipulate default rules so as to allow a robust contractual voluntarism at the early stages of employment. I then argue for the limitation of contractualism for long term employment relations and the need to develop administrative models to offer some meaningful shelter for employees who experience late-stage discharges.

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  Gentili, Grotius, and the Extra-European World

  Benedict Kingsbury

  The modem textbook organization of the law of the sea, with its cascading zones of jurisdiction and its preoccupation with things that happen in the sea such as fishing, navigation, war, pollution, or scientific research, to some extent masks the connections of the subject with reasons for travelling across the sea, including commerce, evangelism, slavery, migration, and empire. Grotius' Mare Liberum, which was published in 1609 to contest the claims of Portugal and Spain arising in part from the sea-borne expeditions to the extra-European world commemorated by this conference, is a reminder of the close links between the developing law of the sea and the expansion of Europe into the extra-European world. The point is manifest even in the title of Mare Liberum: “The freedom of the seas or the right which belongs to the Dutch to take part in the East Indian trade.” This conference falls also on the 400th anniversary of Alberico Gentili's De Jure Belli (1598), a work which had considerable influence on Grotius but which in its own right merits study. I propose in this paper to consider the views of the extra European world held by these two foundational writers on the law of the sea and on what became international law. I will focus more attention on Gentili, who is less well known in part because of having been succeeded so quickly by Grotius. Alberico Gentili (1552-1608) was born in San Ginesio, a much more powerful and populous town then than now, in the Marche region east of the Apennines in central ltaly. He studied law in the Bartolist faculty at Perugia, then took up legal practice and scholarly pursuits in the Marche. The arrival of the Inquisition in San Ginesio and the investigation of the strong Protestant convictions of members of the Gentili family precipitated Alberico's abrupt departure with his father. Reaching England by 1580, he gradually established himself in Oxford, and was appointed Regius Professor of Law in 1587. After 1600 he became increasingly absorbed in legal practice in London, serving from 1605 until his death as an advocate for the government of Spain in the English courts. He produced numerous works on Roman law, and wrote tracts in controversies of theology and British constitutionalism, but his three books of most direct significance for international law are De Legationibus (1585) [DL], a work concerned with the law of embassies and the conduct of ambassadors that arose from his successful argument that the Spanish ambassador Mendoza ought to be expelled rather than criminally punished for plotting against Queen Elizabeth, De Jure Belli [JB], a work that began as three tracts prepared in 1588-89 during English debates on issues of war prompted by the Spanish Armada, and Hispanicae Advocationis (1613), a collection of legal opinions from his practice published posthumously by his brother Scipio. Hugo Grotius (1583-1645) was born in Delft, and had a precocious career in Dutch law, politics and intellectual life until his arrest in 1618 in a politico-religious controversy. After escaping from prison in 1621 he spent most of his career in Paris, latterly as Swedish ambassador to France. JB had considerable impact on Grotius in the composition of both De Jure Praedae (written in 1604-6, but essentially unknown until rediscovery of the manuscript in 1864) and De Jure Belli ac Pacis (1625) [JBP]. JBP was vastly more systematic, elegant, and philosophically rigorous than JB, and it is fair to say that JB has been to some extent in the shadow of JBP ever since. The contrast has been magnified by the importance of Grotius' contributions to theology, philosophy, history and letters, which have assured him a luminous position in the history of European thought to which Gentili's fame will not compare. Gentili's fortune revived in academia after 1870, aided by post-unification Italian enthusiasm for what Gentili could be made to symbolize, as well as the wider aspiration of international lawyers to craft an evolutionary history of the discipline and make its canonical texts available. But JB is probably seldom used by practitioners nor widely studied in universities. Nowadays it is scarcely cited as direct authority by international or national tribunals, whereas Grotius' work, while cited much less than in earlier epochs, is still periodically discussed.

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  Reconstructing Self-Determination: A Relational Approach

  Benedict Kingsbury

  Negotiations on international normative instruments relating to indigenous peoples have repeatedly become ensnared in the question: Does the international law of self-determination apply to indigenous peoples? Although there are glimmerings of future change, the political debate has revolved around the binary issue of the complete applicability or inapplicability of the existing international law concept of self-determination. Representatives of indigenous peoples in international negotiations have insisted, as a large group of them put it in a 1993 demarche to the UN Working Group on Indigenous Populations, that ‘the right of self-determination is the heart and soul of the declaration. We will not consent to any language which limits or curtails the right of self-determination’. These representatives of indigenous peoples proposed that the UN draft Declaration on the Rights of Indigenous Peoples incorporate a version of common Article 1(1) of the International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic, Social and Cultural Rights (CESCR), modified by changing the opening word from ‘All’ to ‘Indigenous’, so as to state expressly that the right of self-determination belonged to indigenous peoples. The five members of the Working Group adopted this indigenous proposal verbatim in Article 3 of the draft: ‘Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'. Representatives of many UN Member States met this with categorical opposition, asserting that these groups are not ‘peoples’, and have no international law right of self-determination. For some state governments, self-determination is a principle upholding independent states, and any application of it to groups within states would undermine the state.

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  Appeal and Supreme Courts

  Lewis A. Kornhauser

  This chapter surveys the economic literature on judicial appeals and collegiality of courts. More general issues concerning judicial administration and court organization are surveyed in a companion chapter. This chapter reviews the literature concerning several issues raised in the economic analysis of appeal and of supreme courts. These issues overlap those considered in Chapter 7100 [Lewis A. Kornhauser's preceding chapter "Judicial Organization and Administration], Judicial Organization and Administration. Appellate courts in general and supreme courts in particular exist only in hierarchically organized court systems. Most of the literature has focused on courts in common law countries. Indeed, most models that extend beyond the simplest features of adjudication do so in the context of the political system of the United States. This review consequently shares the parochial focus of the literature. Analyses of appeal in civil law systems and in the context of different political systems would greatly advance understanding of the subject as they often present different institutional features. At least some civil law systems, for example, allow an appellate court to make an independent assessment of the facts of the case, a judgment denied common law courts. Similarly, the highest courts in some civil law jurisdictions hear substantially more cases than the highest courts in common law countries, a fact that may explain, or be explained by, differences in precedential practice and in the style and content of judicial opinions.