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  IGC 2000: The Constitutional Agenda

  Joseph H. H. Weiler

  My principal theme today will be to identify some of the items on the Constitutional Agenda of the Union which in my view should be addressed in the coming IGC. I will first say some words on Democracy. Europe remains faithful to the idea of an ever closer union among the peoples of the continent and rightly continues to reject the idea of one people, of nation-building and of European statehood. This fateful decision, welcome for its respect for the distinct identity and cultural and political richness of the States and nations which make up Europe, is at the source of the Union’s democratic dilemma. The federal state model—not feasible and not desirable—would, however, have given Europe a smorgasbord of well-tried institutional arrangements, whether Austrian, Swiss or German, American, Canadian or Australian to mention but a few, from which Europe could choose and adapt the one most suitable for itself. The federal state model would guarantee that the norms and habits of Western liberal democracy would be no more compromised in a United States of Europe than in the federal state from which the model was adapted. Instead, the originality of the Europe has been in constructing a polity which to date has achieved a level of legal and material integration far exceeding that obtained by any historical confederation, and yet has managed to maintain the distinct political identity and essential sovereignty of its Member States and their nations in a manner which has defied the experience of all federations. The institutional arrangement at the center of which we find Commission and Council of Ministers, Parliament and European Council has been adept not only at achieving this remarkable result by ensuring a working balance between the Community and its Member States but also, to judge by the results of European integration, at achieving this result with a remarkable level of efficiency at a surprisingly low cost. (After all, the Commission employs, albeit with inflated wages, less officials than any medium-sized European city.) But the price of rejecting a federal state model and charting its own unique experience has been that there is no ready-made democratic blueprint for a European Union. As an IGC approaches one immediately turns to institutional reform, which then overwhelms other items and becomes the central issue in the to and fro among the institutions themselves. This is inevitable, but certain dangers have to be noted. Though all institutions profess that their own pet agendas are exclusively in the interest of the Union and above all the citizens of the Union, in fact as one gets into the thick of it they all adopt keen corporatist attitudes, concerned mainly with protecting their own interests and power. Additionally, they display their blind spots or Achilles’ heels. For example, the Commission’s historical conundrum has always been, on the one hand, its self-understanding as a political institutions couple, on the other hand, with a lack of the kind of legitimation which political institutions require in the Member States and, indeed, in our societies. The historical response of the Commission has been to seek legitimation through results rather than through process, legitimation by outputs rather than inputs—a belief that if it can deliver the substantive economic and social goods, who can complain? Two millennia ago one called that ‘bread and circuses’. The Commission has the typical impatience of the Philosopher-King toward ideas which would increase voice, if the trade-off is a reduction of efficiency. It is interesting to note that in the recently-released Prodi proposals there is some acknowledgment that process might, after all, be important. Parliament’s Achilles’ heel has been its hegemonic attitude toward democratic legitimation. Parliament has not been charitable towards proposals designed to enhance democracy in which it did not play a central role. The trajectory of increase in the powers of the European Parliament in the last 15 years has not been matched by an increase in its own popular legitimacy nor in any appreciable or measurable empowerment of European citizens and their ability either to shape policy or take Euro-politicians to task—i.e. the two principal paradigms of democracy: representation and accountability. To drop the jargon, because of the particularity of European governance, individuals cannot exercise these two most elementary and primitive forms of democratic process. They cannot to the urns and, by their vote, ‘throw the scoundrels out’ of government. They cannot go to the urns with the knowledge that, if a sufficient number of fellow citizens vote as they do, there will be an appreciable impact on key European socio-economic regulatory and redistributive policies. Enlargement will not only mean a growing burden on the decisional processes of the Union. It will bean, too, a continuous decline in the specific gravity of each individual. It will also render more visible that one cannot easily presume the existence of a European society as a basis for a trans-European political discourse. From a policy perspective one must go beyond the institutional matrix. The institutions must be ready to discuss proposals which have as their objective the empowerment of individuals in the political process (instead of just throwing rights at individuals—power is what citizenship is really about) and the enhancement of a true European political discourse: not the old Maastricht-type discourse of ‘yes or not to Europe’, but a discourse of the policy options which are on the Union agenda, a political discourse which should take place both within Member States and across Europe. Such apolitical discourse does not take place today. What policies? I have explored these elsewhere. I turn now to my principal theme: the European Constitutional Agenda.

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  Sons, and Haters…!

  Joseph H. H. Weiler

  This book of essays in honour of Lord Slynn of Hadley, former Advocate General and Judge of the European Court of Justice, is thoroughly worthy of its distinguished honorandus . It focuses on the important topic of Judicial Review in EU Law, and, unlike other books on this topic, it looks at judicial review by both European and national courts. The volume consists of five parts, dealing with The European Court of Justice and the Court of First Instance, Forms of Judicial Review before the European Courts, Forms of Judicial Protection in the European Legal Order, European Law before the National Courts, and Judicial Review and Substantive Law. Each chapter is written by a leading expert and marks a significant contribution to knowledge, as well as being a fitting tribute to Lord Slynn.

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  The European Union: Enlargement, Constitutionalism and Democracy

  Joseph H. H. Weiler

  The planned enlargement of the EU requires constitutional reforms both at EU level and in the accession states. In this second volume of the Forum Constitutionis Europae series, renowned constitutional and European law experts as well as prominent European politicians analyze and comment on this reform process. On the question of institutional reform and the European constitutional process as a whole, the volume contains, among other things, Joschka Fischer's keynote speech on European policy from May 12, 2000, as well as contributions by Joseph H. H. Weiler, Christoph Zöpel and Dietrich von Kyaw. Michaele Schreyer (financial constitution), Dagmar Roth-Behrendt and Ludwig Krämer (environmental constitution) and Martin Morlok (European party law) analyze challenges for individual European constitutional areas. Günther Hirsch and Spiros Simitis deal with the emerging EU Charter of Fundamental Rights. Vilenos Vadapalas (Lithuania) and Jirí Zemánek (Czech Republic) analyze the effects of the accession process on the constitutional law of the accession states. The volume is based on a series of lectures at the Humboldt University in Berlin. A third volume is expected to appear in spring 2001.

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  Why Should Europe Be a Democracy: The Corruption of Political Culture and the Principle of Constitutional Tolerance

  Joseph H. H. Weiler

  This book consists of interrelated essays by many past and present members of the EUI Law Department. The contributors are all well-known specialists in their fields, whose essays address such issues as the effects of integration upon certain national laws, the elaboration of EU law to provide a new framework for or replacement for national laws, the piece-meal development of specific legal strands of EU law and their intertwining with national or international laws, and the indirect and sometimes unintended consequences of European integration with regard to national, EU, or international law.

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  Selling a Quick Fix for Boot Hill: The Myth of Justice Delayed in Capital Cases

  Anthony G. Amsterdam

  I want to talk about a body of United States Supreme Court decisions that offend humanity and reason. They forsake fairness, orderly procedure, intelligence, and judicial efficiency for no stated reason and no rational purpose. Insofar as their results are explained in opinions, the opinions are delusory in the double sense of being built upon delusion and promoting it. Their delusiveness is what I chiefly want to explore. This involves a kind of warping of reality that can allow civilized people to conceal from themselves and others that they are engaging in atrocities. It is a principal ingredient in getting American judges—who, after all, include a great many very decent individuals—to feel and sound self-righteous as they play their necessary, mindless part in killing human beings under the language of obedience to the largely self-made rules of capital punishment jurisprudence. The specific cases I examine are those in which the Supreme Court vacates a stay of execution that a lower federal court has issued pending judicial consideration of a condemned prisoner's claims that his or her conviction or death sentence violates the Constitution of the United States. The cases come up at various procedural stages, but the basic scenario is this: A person has been sentenced to death for murder, and his or her date of execution is set. S/he files a petition for habeas corpus in a federal district court, which has jurisdiction to determine whether the conviction or sentence was obtained in disregard of the guarantees of individual rights embodied in the federal Constitution. The federal district judge concludes that he or she cannot practicably give appropriate consideration to the petitioner's claims before the hour set for execution, so s/he issues an order temporarily forbidding (“staying”) the execution until the district court has time to deliberate about the merits of the claims. (Or a federal district judge—or a judge or judges of a federal court of appeals—may issue a similar, temporary stay to give the petitioner time to appeal to the court of appeals from an adverse decision on the merits by the district court. Or any of these judges may issue a similar, temporary stay to give the petitioner time to seek the United States Supreme Court's discretionary review of an adverse decision by the court of appeals. The state's lawyers then ask the Supreme Court to set aside (‘vacate”) this stay order so that the execution can be carried out without delay. The Court does so, after summary review of the papers filed by the state's lawyers and any response to them that the condemned prisoner's lawyers are able to file quickly. The first time the Court did this was on August 10, 1982, in the case of a Virginia prisoner named Frank Coppola. A word of historical background will be useful: In 1965, the NAACP Legal Defense Fund began to coordinate a national effort to challenge the death penalty throughout the United States on federal constitutional grounds. It developed a number of substantive constitutional arguments, embodied them in form pleadings that included applications for a stay of execution, instructed local lawyers on the arguments and the procedures for presenting them, and undertook to represent any condemned inmate for whom no other competent representation could be found. After June 2, 1967, no executions occurred in the United States for almost ten years. In 1972 a divided Supreme Court invalidated virtually all then extant capital punishment statutes by a series of decisions of uncertain scope. The state enacted new statutes, and in 1976 a divided Supreme Court sustained some kinds of statutes while invalidating others. Again the scope of the Court's decisions was unclear; difficult questions about the constitutionality of various capital trial and sentencing procedures and their applications persisted. These were taken up and decided—some going one way, some another—in dozens of additional Supreme Court rulings and in hundreds of rulings of the lower federal courts on habeas corpus petitions for the next two decades. The Court's 1972 and 1976 cases marked a new beginning for constitutional analysis of a wide range of issues, including the shape that capital punishment statutes could take,10 the validity of particular features of such statutes, the nature of the conduct for which a death sentence could be imposed, whether sundry procedures were permissible in the trial of capital cases, and whether sundry other procedures were required. The first person to be executed while this body of issues was shaking down was Gary Gilmore. Gilmore fired his lawyers and waived his appeals. When his mother instituted proceedings questioning his mental competence, he joined the State of Utah in opposing them. The U.S. Supreme Court sustained his right to die as a volunteer with the constitutionality of his conviction and sentence unresolved; and he was killed by a firing squad on January 17, 1977. Five and a half years later, by midsummer 1982, only three additional people had been executed—two of them, like Gilmore, volunteers.

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  Racisms

  Kwame Anthony Appiah

  Introduction to Philosophy, 3/e is the most comprehensive topically organized collection of classical and contemporary philosophy available. Ideal for introductory philosophy courses, the third edition of this classic text now includes a general introduction and features eighteen selections new to this volume and an expanded glossary of philosophical terms. A serious and challenging work, it includes sections on the meaning of life, God and evil, epistemology, philosophy of science, the mind/body problem, freedom of will, consciousness, ethics, and philosophical puzzles. This exceptionally successful anthology presents a large number of substantial—and in some cases complete—selections from major works, offering a unique balance between classical and contemporary readings.

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  Yambo Ouologuem and the Meaning of Postcoloniality

  Kwame Anthony Appiah

  From the appearance of Bound to Violence in the late 1960s, Yambo Ouologuem has been one of Africa’s most controversial writers. For some critics, the young Malian signaled an entire new direction for African letters: a fiercely courageous postindependence literature. For others, his novel revealed too much, bringing to light horrors many preferred to ignore. Today Ouologuem is credited with delivering the final death-blow to Senghorian negritude, thus clearing the way for a more honest literature divested of the longing for a false African past. This book gathers the most important essays on Ouologuem from critics on three continents. Wise also includes his recent interviews with the reclusive author and a companion essay on Ouologuem’s present life among the Tidjaniya Muslims of northern Mali.

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  Defining the Role of the Police in Latin America

  Paul G. Chevigny

  It is difficult to define the role of the police in any society, particularly because the police are so ubiquitous and their job so protean. We can approximate the scope of the police role by speaking of the jobs of protecting persons and keeping order through patrol, as well as investigating past crimes through detectives or “judicial police.” As in so many cases, it is easier to say that the role is not being filled than it is to specify the scope of the role; so, for example, the adoption of a military role for the police seems to me always a mistake. Thus it is clear that in many Latin American countries, the role of the police is misdefined. Many politicians unthinkingly accept a semi-military model in which it is the job of the police to “fight” the enemy “crime,” embodied in the person of the criminal. The model blinds them to the simple perception that the police are citizens, as are those with whom they work, and that there is no enemy. Furthermore, some politicians as well as police administrators have accepted a formula according to which it is the job of the police to reduce crime-to fight it directly, regardless of other institutions of the law and the criminal justice system. This has led to a situation in which the police are ill-equipped either for preventive policing and keeping order or for criminal investigation; they have assimilated everything to a form of semi-military “control” of the sort that Sergio Aguayo mentions in the epigraph quoted above. The consequences can be seen at the extremes in acts of violence such as torture and extrajudicial killings. At the same time, the police have concealed their worst violence, as well as lesser forms of brutality and corruption, by a system of impunity. We can imagine a better role for the police if we do no more than imagine an end to these abuses. When the problems are stated in such a bare, schematic way, it is difficult to understand why democratic societies, now prevailing in most of Latin America, would tolerate such police systems. This is especially so since most of the official violence is directed against the poor, who are the majority in substantially all these countries. Why has the situation continued? We cannot answer that question, or consider what can be done to change the role of the police, unless we confront the fact that, at least as far as life in the cities is concerned, policies that encourage police violence are popular. Leaders have succeeded in conveying the impression that police abuses are directed not to “the people” as a whole, or even to the large part of it that is poor, but only to a few demonized as antisocial. In Sao Paulo in 1991, when former governor Fleury was criticized for strengthening the fearsome ROTA in the military police, he asserted: “The philosophy is what we always try to teach; a police that may be the friend of the worker, the householder and of students, but very hard in relation to bandits. For the bandits there is to be no mercy, no, and the ROTA is going to continue on this path.” And in 1990, when the notorious “tough cop” Luis Patti, an Argentinean police commander, was arrested for torture, residents demonstrated in his support, and even Argentina's President Menem claimed that he had “cleaned up crime,” and that he “does everything well.” From Rio de Janeiro, to Buenos Aires, to Los Angeles, and increasingly to Mexico City, elected officials as well as the police complain that defendants have too many rights, that the courts are a “revolving door,” and that the police have to “crack down” on crime; they even say we need to mount a “war on crime.” I would argue that crime and personal security are always going to pose a political temptation in democratic societies such as these that have large social inequalities. Where there is a free press, the media attracts viewers and readers by sensational crime stories. Politicians can give an impression of strength and decisiveness by inveighing against crime and the criminal justice system without having to come to grips with intractable problems of economic and social injustice; they shift the blame for some of society's ills onto the poor, or at least onto that portion of the poor which can be labeled marginal and dangerous. The appeal is effective because it responds to the fears of the elites and the middle classes, while at the same time it intimidates those who are most affected by police crackdowns. In fact, this method is so effective that politicians sometimes exaggerate the dangers to keep the support of the voters through fear. This has happened recently, for example, in Argentina, where the administration tried to whip up support for increased security measures even though the problem of crime did not seem overwhelming, and it is starting to happen in Mexico. In a case of what Charles Tilly has aptly called the “protection racket,” governments sell their people as a source of support. The rhetoric of fear and personal insecurity is appealing enough in the United States, where the law has assumed such symbolic importance that it seems plausible that the assertion of rights might cause, as well as solve, social problems. The rhetoric is perhaps even more appealing where governments are beleaguered by debt and increased economic misery, and viable political means to alleviate the misery in the short run seem to be closed, sometimes by the demands of creditors. The temptation to escape the apparently insoluble by attacking the criminal justice system becomes overwhelming. Where there has been heavy reliance on the military and security system in the past, moreover, as in Argentina and Brazil, the appeal to that system is reinforced. As the criminologist Zaffaroni has written, penal agencies “try to recover their secure position by projecting another war; because open political violence does not exist any more, there should be a war against ordinary delinquency.” It has reached the point where “human rights” is a term of abuse for some politicians, as though it were a set of privileges for criminals. We cannot rid our societies of police abuses, not even such extreme abuses as torture and extrajudicial killings, merely by showing that they are against the rule of law. The alliance between democracy and the rule of law is uneasy at best. If we think of democracy in its primordial sense of rule by the mass of the people, there is no obvious reason that the demos should care deeply about the generality and continuity of laws. It is familiar ground that one of the reasons democratic governments have constitutions and that the international system has treaty-based and customary laws of “human rights” is that governments, democratic as well as authoritarian, often see little reason to protect those who are outcasts. I think we have to go beyond the assertion of human rights to show why, as a practical matter, changing the police by subjecting them to the rule of law is in the interest of all groups, elite as well as poor, in a democratic society. The main goal of this chapter is to make that apparent. But before we reach that point, we have to understand the scope of the extremes in police work.

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  Police Accountability in Hemispheric Perspective

  Paul G. Chevigny

  [1] “In principle, internal processes are to be preferred, for at least three reasons. First, internal regulation can be better informed than external. A determined police can hide almost anything it wants from outside inspection, certainly sufficiently so as to make outside supervision haphazard Second, internal regulation can be more thorough and extensive. It can focus on the whole gamut of police activities, not simply on the more dramatic and visible aberrations. Third, internal regulation can be more varied, subtle and discriminating than external. It can use informal as well as formal mechanisms that are omnipresent in the professional lives of police personnel.” [2] “Civilian review deflects unfounded criticism, isolates the persistently erring officer, strengthens the hands of police middle-managers and attests to the good faith of the police. Civilian review is an important too/for managing the risks of dispersed police actions.” These two passages by [David Bayley,] a leading scholar of police, published six years apart, reflect a change in the acceptability of external review of police misconduct. Among police officials, as well as among scholars like David Bayley, there has been increasing disillusionment with discipline by internal management. Even more, there has begun a search for more legitimacy, for better relations and more credibility with the public. It is significant that the two passages, although they offer contrasting perspectives, are not in conflict; one could easily believe both at the same time. For me, they reflect a dilemma that has become more obvious as external review has been more widely accepted. If the monitoring influence comes from outside the police, it tends to rouse the opposition of managers as well as the rank and file. Without some cooperation from within, then, it is nearly impossible for the outsiders to investigate, and any policy recommendations they make are liable to be ignored. On the other hand, if the control is exclusively internal, it tends to become socialized to existing mores in the department and to be ineffective. This effect is especially strong in the United States, where officers have started at the bottom and there is very little lateral entry. Real accountability will have to combine internal and external controls. I am going to discuss the dilemma more thoroughly later on, when I talk specifically about accountability by discipline of police personnel. The important thing to focus on at this point is that no one system of accountability is a panacea for all the ills of police relations with the community. Moreover, the choices we make in Canada and the US as well as in other developed countries, for example between external and internal systems of administrative discipline, may not be politically feasible immediately in other countries in the Americas. To put it more simply, in places where there are widespread reports of torture and the abuse of deadly force and there is doubt that many police really accept standards of human rights or, for that matter, any standards set by political forces outside the police, discussions about the optimum system of administrative discipline for police may not be the best place to begin talking about accountability. We have to think about how to break down official impunity, and for that purpose we have to think about accountability in the broadest perspective. We have to think about accountability to the legislature and to the courts, as well as to the executive. We tend to think about ‘accountability’ on a case-by-case basis, on the model of a bureaucrat answering for breaches of law by himself or others. But systemic change can obviate the need for individual accountability in a range of cases by making it more unlikely that a violation of human rights will occur. Legislative changes in criminal procedure in Argentina and Mexico, making confessions given to the police alone inadmissible in the criminal trial have tended to reduce the incidence of torture in those countries. Similar results have come from the judiciary in places where the judiciary is strong enough to control the procedures. The Miranda rules established by the Supreme Court in the United States are a device to reduce the incidence of coerced confessions by warning suspects that they do not have to talk. In a similar development in Sao Paulo in the 1990s, administrative judges reduced the incidence of torture of suspects by requiring that police obtain orders to detain suspects, that suspects be examined for injuries, and that there be investigations in response to any complaints from suspects. Setting the standards of police conduct that are implied by these legislative and judicial changes tends to have the effect of making the underlying abuse—in this case, coercing information from witnesses - unacceptable to the public and ultimately to officials. The Miranda rules, for example, have served not only to warn suspects, but the police themselves, that involuntary interrogations are against the law and inadmissible. And I am told by lawyers in Sao Paulo that the use of torture has become less acceptable to the public as well as to officials. Similar changes can be made in the use of vehicle pursuits, house searches and the use of firearms. If the law restricts the occasions on which vehicle pursuits are permitted, then the likelihood of a violent confrontation between the police and the driver when he is finally apprehended is reduced. And we know from tradition in the English-speaking world that if a warrant is required for a search, then the chance of abusive searches is reduced. If there are stringent requirements for the use of firearms that are enforced by investigating and reporting on every shooting, together with discipline that is enforced, the number of shootings can be controlled. In the United States and Canada we would say that any of these systemic changes that reduce the opportunity for violations of human rights can be and often are introduced by changes in internal police regulations rather than by external legal change. The use of vehicle pursuits, for example, is usually limited by police regulation rather than by external legal rules. And when the US Supreme Court limited the use of deadly force in arrests to situations where the suspect presents a threat of violence to the police or the public, it was giving its approval to rules that were already accepted as the best police practice. But systemic change can be made by regulation, of course, only in police departments that accept the need to reduce the opportunity for abuses. When the organization resists systemic change, external legal reform is the only possibility. And when the organization accepts change on paper, but does not act in good faith, or when its members refuse to comply with regulations made either by their superiors or by external political forces, case-by-case accountability may be the only resort. The difficulties with such accountability, whether it be internal or external, are endemic. The success of the case depends on proof of the actor's liability, which depends in tum on happenstance such as the availability and reliability of witnesses and forensic evidence.

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  A Reflection on Three Verbs: To Father, To Mother, To Parent

  Peggy C. Davis

  Law is a telling aspect of a culture. It can teach us where we collectively stand with respect to any number of issues—what standards of conduct we expect, how we sort out competing interests, whom we protect, and whom we blame. Seeing this, legal scholars, who at one time thought of law only in narrowly instrumental terms (What can I learn from this rule that will further a client's interests or alert a client to risk of liability?), are also reading law as a sign of the culture—asking what a statute or judicial opinion teaches about the context in which clients, and all the rest of us, move. It is in this new spirit of legal scholarship that I approach the subject of parenting.

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  The Institutional Development of the EU: A Constitutional Analysis

  Gráinne de Búrca

  The European Community has been in existence for forty years. This period has seen considerable change and development in both the institutional and the substantive law of the EC—and more recently the EU. Numerous works on EC law have been published over the years, ranging from textbooks, to specialist monographs, to collections of essays on particular aspects of Community jurisprudence. This, however, is the first work which seeks to stand back from the ever-growing detail of Community law, and examine this jurisprudence from an evolutionary and interdisciplinary perspective. Every important area of institutional and substantive European law is covered—leading lawyers analyse the evolution of their area of expertise across time, bringing out the major thematic changes which have occurred.These changes are then viewed against the broader political and economic background of the Community as a whole. This book will give readers a clearer understanding of the overall legal picture, and will also allow them to gain a richer perspective on the interaction between law and other forces which have shaped the Community and made it what it is today.

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  Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire

  Richard A. Epstein

  Laissez-faire capitalism, along with its associated doctrine of freedom of contract, had many stalwart defenders during the nineteenth century. But it has received a rocky reception from many legal and philosophical commentators in the twentieth century. Freedom of contract has often been pronounced "dead on arrival" as an organizing principle for complex contemporary societies. That principle has been said to be insensitive to differences in wealth, status, position' and power that make the exercise of contractual choice a myth for the weak and dispossessed. Within the legal literature, it has been attacked as ignoring the large concentrations of wealth that distort market processes and that trample down the rights of consumers and workers. Modern writers often rejoice in pointing out the intellectual narrowness and class bias of the leading judicial defenders of the principle, of whom Baron Bramwell was surely one. This sustained attack on laissez-faire political theory has taken place on two levels. The most obvious level addresses grand themes of industrial capitalism and political discontent. These challenges to laissez-faire found their most vivid expression in several contexts: the role of assumption of risk in torts cases, the role of contract and combination in labor cases, antitrust cases, and the requirements of constitutional rates of return for public utilities and other regulated industries. But a second level of concern has also exerted a surprising influence, especially in legal circles. Here freedom of contract has been criticized not only for its social consequences but also, doctrinally and internally, for its unsatisfactory and confused conceptual foundations. Four of the most influential legal critiques of laissez-faire theories have bored at the system from within instead of assaulting it from without. I speak here of Friedrich Kessler's early critique of "Contracts of Adhesion"; Grant Gilmore's highly influential set of lectures, The Death of Contract; Lawrence Friedman's Contract Law in America and Patrick Atiyah's massive study of contract theory, The Rise and Fall of Freedom of Contract. In these writings the emphasis shifts from contract large to contracts small. Although these authors advert to the major social themes that surround the debate over laissez-faire, they focus on contract doctrines, such as the rules relating to offer and acceptance or consideration, which at first blush are the stuff of lawyer's law, and not the stuff of political controversy and intellectual unrest. They find that the nineteenth-century synthesis of contract law contains errors, confusions, and equivocations that undercut its intellectual vitality. In one sense, these writers have picked odd doctrinal targets for their work, but the influence of their writing calls for a more sustained examination of their position. This essay therefore has two central objectives. The first of these is to show that the disputes found in classical contract law, and indeed today, operate for the most part at the fringes of any functioning legal system. No system has to be perfect to survive, and the perceived defects of the nineteenth-century legal regime can be fixed without any major changes to its overall structure. This essay's second objective dovetails with the first. It is to establish the internal coherence of the classical system in order to explain why it does withstand the doctrinal and political attacks launched against it. This essay seeks to discharge these missions by using both a top-down and a bottom-up approach. The bottom-up approach is the worm's-eye view of contracts law that examines such issues as offer and acceptance, consideration, and conditions. The plural"contracts" is used to stress the diversity of doctrinal and technical issues that are incorporated into this overall mosaic. The top-down approach, contract large, uses the singular. It examines the social and intellectual linkages between contract law, writ large, and laissez-faire. The specific doctrines of contract law, which form the core of standard treatises and casebooks, do not bear any simple relationship to the principles of laissez-faire. Much of contract law is compatible with extensive systems of social regulation, both foolish and wise. Accordingly, the efforts of modern writers hostile to laissez-faire—Kessler, Gilmore, Friedman, and Atiyah—falsely posit an intimate connection between the formal doctrines of contract, derogated under the name of formalism, and the political philosophy of laissez-faire. But they cannot bring down laissez-faire by pointing out the perceived inadequacies and rigidities of the nineteenth-century doctrines of offer and acceptance, or consideration. Nor do the twentieth-century doctrinal developments in these areas presage the inevitable rejection of laissez-faire. Indeed, some developments, such as the explicit articulation of the principle of promissory estoppel, are more consistent with freedom of contract than with its rejection.

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  Intellectual Property: Top Down and Bottom Up

  Richard A. Epstein

  All too often, lawyers receive bad press for their role in a modem commercial society: They are regarded as the fount of all obstacles to innovation and improvement. Oftentimes I am happy to join a growing fifth column against the excesses of law, notwithstanding my own training and credentials. But although those charges are often warranted, sometimes they are not. What I hope to do in this short chapter is to dispel the illusion that all lawyers are necessarily pitted against productive labor. Accordingly, I want to address the positive legal contribution to setting up the framework in which commercial transactions, especially those in the information age, take place. I shall outline my themes in a somewhat broader context than is appropriate for the technical panels that rightly dominate academic conferences and publications. My self-appointed task therefore is to view intellectual property as part of the broader species of property rights.

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  Harassment Law and the First Amendment: A Window on the Role of the Workplace in a Democratic Society

  Cynthia Estlund

  Sexual harassment is the fastest-growing category of employment litigation in the United States. At the root of recent class actions against several major corporations and the subject of three significant Supreme Court decisions during 1998, sexual harassment litigation is an area of legal practice where much remains unsettled and few claims can be confidently met with established defenses or remedies. Because of its potential for ad hoc outcomes that lead to ever-greater legal instability, the question of sexual harassment in the workplace requires sustained attention by policymakers in both business and government and by academics. It was in order to promote this crucial endeavor that New York University's Annual Conference on Labor for 1999 chose this issue as its theme. This long-standing, influential conference is the premier forum for bringing together legal practitioners, academics and researchers, government officials, representatives of companies and labor unions, and human resources specialists to explore solutions to problems in the American workplace. This valuable symposium addresses such provocative questions as: To what extent can sexual harassment claims be meaningfully addressed by existing laws such as the National Labor Relations Act and state and federal anti-discrimination statutes? Are employer sexual harassment policy initiatives on a collision course with the First Amendment? What rights do accused employees have? When are employers liable for sexual harassment? Sexual Harassment in the Workplace also includes insightful discussions of the valuable role that social science methodologies and alternative dispute resolution techniques can play in fostering an environment where sexual harassment is better understood and effectively dealt with.

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  Accountability and Authority: Toward a Theory of Political Accountability

  John A. Ferejohn

  We take it for granted that modern government must be democratic in the sense of deriving its authority directly or indirectly from the people. But democratic governments differ greatly in producing policies that are responsive to the popular will. In part, this variation may be traced to the diverse representational structures of various democratic governments. Electoral institutions are employed not only to choose good public officials, but as mechanisms to hold incumbents accountable to the public, and, in these ways, they may make policies more or less responsive to public wishes. Accountability is, on this view, a property of institutional structures, whereas responsiveness is a consequence of interaction within such structures. Put another way, responsiveness is a measure of how much accountability an institutional structure permits. Of course, responsiveness is not an unmitigated virtue. Most of us want government to be responsive when it comes to matters like building roads and universities, establishing a system of welfare and social security, and deciding how protective we will be of natural resources. What government should do in these cases is not a matter of justice or morality but depends on what cooperative projects citizens wish to undertake. But in the administration of programs in which the dispensing of justice is concerned, and perhaps in the case of managing monetary policy, popular responsiveness is not so attractive. We may want our judges to be accountable to someone in order to ensure that they are not venal or partisan but not because we wish their decisions to respond to popular preferences.

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  Cautionary Notes

  John A. Ferejohn

  Richie and Hill argue that democratic justice requires proportional representation. Single-member district systems of election are, in their view, fundamentally defective; they are insufficiently representative, and they artificially reduce the options for voter choice, thus limiting the range of viewpoints present in the legislature and emasculating political debate and discussion. This reduction in the range of viable candidates diminishes the representation of minorities and historically under-represented groups (such as women) and tends to reduce voter turnout as well. In addition, single-member district (SMD) systems permit and encourage officials to gerrymander electoral districts in order to increase their own job security at the expense of making most legislative contests uncompetitive. Richie and Hill argue, moreover, that such systems cannot be reformed by regulating campaign finance, limiting incumbent control over redistricting, or redrawing districts with a view to fixing problems of "misrepresentation," both because such reforms are politically unfeasible and because they do not touch the root defects of SMD systems. The authors argue that there are proportional representation systems that would cure these defects, and that there is a politically practical path that can bring about a transition to such a system. Richie and Hill thus presents three arguments: the SMD systems are incurably defective, that there are superior PR systems, and that the adoption of PR is politically practical.

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  Towards an International Common Law of Competition

  Harry First

  Much of the literature dealing with the internationalization of antitrust focuses either on the extent to which antitrust rules should be harmonized or on the content of those rules. The unexamined assumption of this literature is that harmonization is dependent on some form of legislative action, that is, some form of international treaty that will establish either basic principles or minimum standards for applying antitrust to cross-border economic transactions. Might it be possible, however, that international antitrust rules could develop without international legislative action? Setting aside the question whether harmonization is a good idea, and setting aside the question of the proper harmonized rules, are there mechanisms that might produce a system of international antitrust rules? These questions trigger a second set of issues. The dark side of antitrust harmonization has always been procedure, not the substantive rules of antitrust. By procedure, I mean the institutions through which international antitrust rules will be applied and enforced. Commentators have certainly been well aware that enforcement issues are difficult and important, but these issues have generally not been the prime focus of debate. Rather, they have taken a back seat to what many perceive as the fundamental need for an agreement on substantive antitrust principles. In this paper I would like to explore the unexamined assumption of the need for a "legislative” approach to substantive principles of international antitrust law and to explore the underexamined problem of the institutions of antitrust enforcement. To do so I will contrast two theoretical models, the “WTO model” and the “sovereignty model,” and propose a third, the “networks model,” which I put forward as an evolving synthesis of the other two. It is my thesis that the evolution of a networks model shows both that international antitrust rules can emerge (and are emerging) without an international legislative superstructure and that the tools of the common law can allow us to manage an international system effectively.

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  The Housing Court's Role in Maintaining Affordable Housing

  Paula Galowitz

  Any discussion of housing and community development in New York City would be incomplete without an examination of the New York City Housing Court. The court was specifically created by the New York State Legislature as a mechanism for providing safe, decent, and habitable housing (New York City Civil Court Act§ 110). Given the court's central role in overseeing housing conditions and the huge number of litigants who pass through its doors, the court plays a major role in shaping housing patterns in New York City. Yet, the Housing Court is widely regarded as an ineffective institution that has not fulfilled its mandate of preserving the city's housing stock. The court has had little influence on the enforcement of the housing maintenance code, a task that the court was specifically designed to accomplish. Furthermore, the court has failed to serve as an effective forum for adjudicating landlord and tenant disputes. This chapter will examine the reasons for the Housing Court's shortcomings and consider whether the court can be reformed to enable it to play a more effective part in community preservation and development. The discussion first will describe the Legislature's goals in creating the court. The discussion then will examine the systemic pressures that stand in the way of an activist, effective housing court, and will consider some of the current proposals for reforming the court. The chapter will conclude by suggesting structural changes for the Housing Court.

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  Durkheim's Sociology of Punishment and Punishment Today

  David W. Garland

  Durkheim focuses upon punishment because, for him, it is a tangible example of the conscience collective at work—expressing and regenerating society's values, reinforcing the moral bonds without which social cohesion cannot exist. Punishment is one of society's solidarity-producing mechanisms, and as such a central topic for sociological research. As a topic for Durkheimian inquiry, it is particularly apposite because it reveals how, even in modem society, rituals of moral communion still take place, providing occasions for mutual agreement and moral solidarity in a world which sometimes seems to lack universal categories. Moreover, the social and moral dimensions of punishment are characteristically modern insofar as they are, for the most part, latent rather than manifest, hidden beneath the mundane instrumental business of controlling crime. For Durkheim, much of modem social morality has this unspoken, latent, taken-for-granted quality. The moral bonds which tie individuals to each other and to society are embedded within acts such as contracts and exchanges which appear, on their surface, to be purely matters of rational self-interest. By showing that punishment is a process which has a high moral seriousness and a functional importance for social life, Durkheim seeks to remind us of the moral content of instrumental action, and to make us more self-conscious of it. (Durkheim regarded this as especially important at the turn of the 20th century when the new science of criminology and the movement for a rational, rehabilitative penality were beginning to challenge the moral role of punishment.) What is it that makes the punishment of offenders an especially moral matter of importance to social solidarity? Isn't it a rather specialised, narrow undertaking, important only to those immediately involved in the business of crime control?

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  Governmentality’ and the Problem of Crime

  David W. Garland

  Michel Foucault's Discipline and Punish (1977) made a huge impression on criminology, providing it with a theoretical language with which to analyse the practices of punishment, as well as with a heightened sense of criminology's own status as a power/knowledge apparatus linked into these very practices. Now, a dozen years after his death, Foucault has begun to exert a theoretical influence of a quite different kind. From 1978 until his death in 1984, his work developed around a new theme, ‘the government of others and the government of one's self’, which focused particularly on the relations between two poles of governance—the forms of rule by which various authorities govern populations and the technologies of the self through which individuals work on themselves to shape their own subjectivity. These analyses of Foucault - broadly described as studies of ‘governmentality’—have inaugurated a vigorous research programme and an impressive scholarly literature, anatomizing practices of government across a range of social and economic fields. Analyses of this kind have recently begun to consider the field of crime control and criminal justice, suggesting that a second, and rather different, ‘Foucault effect’ might be about to be felt within theoretical criminology. At a time when criminologists are trying to come to terms with a reconfigured criminological field, the governmentality literature offers a powerful framework for analyzing how crime is problematized and controlled. It is focused on the present—particularly on the shift from ‘welfarist’ to ‘neo-liberal’ politics—and avoids reductionist or totalizing analyses, encouraging instead an openended, positive account of practices of governance in specific fields. It aims to anatomize contemporary practices, revealing the ways in which their modes of exercising power depend on specific ways of thinking (rationalities) and specific ways of acting (technologies), as well as on specific ways of ‘subjectifying’ individuals and governing populations. It also problematizes these practices by subjecting them to a ‘genealogical’ analysis—a tracing of their historical lineages that aims to undermine their ‘naturalness’ and open up a space for alternative possibilities. In the first part of this chapter, I discuss the usefulness of this governmentality approach in opening up new ways of understanding the discourses, problems and practices of contemporary crime control. I then turn to consider some of the limitations and problems of this framework and argue, against some of its proponents, that an engagement with (certain forms of) sociological analysis would allow governmentality studies to overcome some of these limitations.

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  Penal Modernism and Postmodernism

  David W. Garland

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

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  Constitutionalism, Democracy, and State Decay

  Stephen Holmes

  The hazy mirror with which philosophy reflects its times has cracked under the impact of the collapse of communism and the end of the Cold War. Basic concepts and norms, models and paradigms, anxieties and aspirations, have had to be and are being fundamentally challenged in light of the dizzying and unforeseen events of the past decade. As a Polish journalist recently remarked, in 1989 most of us thought that good had conquered evil (that we had achieved a liberal revolution). What we have instead is a return to Chicago in the 1920s. The intellectual and moral shock of this sort of turnabout has still not been fully absorbed, over there or over here. Nonetheless, a significant transformation of ideas and values has occurred. Previously idealized social patterns, such as markets and community, are gradually acquiring new and not entirely positive reputations. Both instrumental-monetized exchange and emotional-moral solidarity, both border-crossing arms smuggling and border-smashing tribalisms, now rouse new worries in the public mind. The fire sale of the Soviet military inventory, not to mention the unregulated market in ground-to-air missiles, it is fair to say, cause as much apprehension as Bosnia style sub-group loyalty gone insane. So what are the main lessons that transitology, in its current form, can teach political theorists? What do we learn when a system of power crumbles, and a state of nature with highly educated and understandably apprehensive inhabitants emerges, right before our eyes? More concretely, what can constitutional and democratic theorists learn from the unthinkable collapse of state institutions, especially in Russia, but also throughout the postcommunist world? What will the study of criminalization and tribalization, kleptocracy and territorial unraveling, do to our basic categories and questions? It is still too soon to answer this question in a confident manner. But a number of conceptual reorientations or subtle shifts of emphasis in both constitutional and democratic theory can already be perceived.

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  The Positive Political Economy of Instrument Choice in Environmental Policy

  Nathaniel O. Keohane, Richard L. Revesz, and Robert N. Stavins

  The design of environmental policy requires that two central questions be addressed: (1) what is the desired level of environmental protections? and (2) what policy instruments should be used to achieve this level of protection? With respect to the second question, thirty years of positive political reality in the United States have diverged strikingly from the recommendations of normative economic theory. Our purpose in this paper is to explain why. Four gaps between normative theory and positive reality merit particular attention. First, despite the well-known economic advantages of market-based instruments, command-and-control standards have been used much more frequently. Second, when command-and-control standards have been used, the required level of pollution abatement has generally been far more stringent for new sources than for existing sources. This dual system may actually worsen pollution by encouraging firms to keep older, dirtier plants in operation. Third, in the relatively rare instances in which market-based instruments have been adopted, they have nearly always taken the form of tradable permits rather than emission taxes, although economic theory suggests that the optimal choice between the two is dependent upon case-specific factors. Moreover, the initial allocation of such permits has been through ‘grandfathering,’ or free initial distribution based on existing levels of pollution, rather than through auctions, despite the economic superiority of the latter mechanism. There are four alternative market-based instruments available: taxes, revenue-neutral taxes, auctioned permits, and grandfathered permits. Despite the numerous trade-offs that exist in normative economic terms, the US experience has been dominated by one choice—grandfathered permits. A fourth, conceptually different, gap, between prior and current political practice, is also worthy of attention: in recent years, the political process has been more receptive to market-based instruments, even though they continue to be a small part of the overall portfolio of existing environmental laws and regulations. After being largely ignored for so long, why have incentive-based instruments begun to gain acceptance in recent years? Commentators have advanced various explanations for the existence of these four gaps between normative theory and positive reality. Some explanations emerge from formal theories. Others take the form of informal hypotheses: they purport to explain certain aspects of environmental policy, but are not part of a formal theory of political behavior. In this paper, we review, evaluate, and extend these explanations. Moreover, we place these disparate explanations within the framework of an equilibrium model of instrument choice in environmental policy, based upon the metaphor of a political market. The scope of the paper is intentionally limited. Our emphasis is on the control of pollution rather than the management of natural resources. We treat Congress, rather than administrative agencies, as the locus of instrument choice decisions and we view legislators (rather than regulators) as the ‘suppliers’ of regulation. Moreover, we focus exclusively on the choice among the instruments, such as tradable permits, taxes, and standards, used to achieve a given level of environmental protection. We do not explore the related issues of how the level of protection is chosen or enforced. Nor do we address the issue of why Congress chooses to delegate authority to administrative agencies in the first place. Finally, our outlook is positive, not normative: we seek to understand why we have the set of tools we do, rather than which tools are desirable. The next section presents the key features of our market framework. In Part 3, we consider the demand for environmental policy instruments, and in Part 4, we examine the supply side. Part 5 offers concluding remarks.

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  Operational Policies of International Institutions as Part of the Lawmaking Process: The World Bank and Indigenous Peoples

  Benedict Kingsbury

  This chapter examines issues concerning indigenous peoples in the World Bank as a case study of an important body of normative practice that has been surprisingly neglected in the theory of international law: the internal policies and practices of international institutions. I suggest that these policies and practices have considerable significance for international law, in three distinct dimensions: their contribution to the process of international norm formation; their implications for accounts of the sources of international legal rules; and the need these policies and practices generate for a more fully formed international administrative law. The aim of this chapter is to sketch a variety of ways in which such policies and practices may be important for international law in general, rather than to delineate specific legal rules relating to issues concerning indigenous peoples. For similar reasons the chapter does not address fundamental threshold questions concerning the merit of the types of ‘development’ promoted by the Bank, the struggles within the Bank group to define a satisfactory mission for its various institutions, or the status of indigenous peoples vis-a-vis states and international organizations. In the trend among international institutions having major field programmes and responsibilities to adopt normative operational policies on issues affecting indigenous peoples the World Bank has been a leader, but it is by no means alone. This chapter focuses on the World Bank as the institution with the most extensive body of juridically assessable experience. The pattern it has set has been followed closely in other international financial institutions, notably the Asian Development Bank and the Inter-American Development Bank. Loosely comparable policies have been adopted, or are under consideration, in other development institutions such as the United Nations Development Programme and the European Commission, and in humanitarian institutions such as the Office of the United Nations High Commissioner for Refugees (UNHCR). Succeeding sub-sections will address the adoption, content, application, and supervision of the Bank's operational policies relating to indigenous peoples, focusing in each case on illustrative features of wider significance for international law. The wider normative impact of such policies will then be considered.

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  Sovereignity and Inequality

  Benedict Kingsbury

  Elaborates on the way in which inequality is entrenched within the existing international order, examining the way in which sovereignty and inequality are inseparably linked in international law. The principle of state sovereignty has long relieved international lawyers from having to think about inequality, by adopting a mask of formal equality and leaving actual inequalities to be treated as the responsibility of individual states. Begins by examining the relations between sovereignty and inequality within the mainstream tradition of international law. It then assesses the extent to which challenges of globalization, democratization, and privatization have forced adaptations of the traditional concept of sovereignty, and whether the mounting criticisms of that concept might soon lead to the replacement of its present normative basis by a functional basis, speculating on the possible consequences for the management of inequality. Concludes that a radical change in the international law concept of sovereignty will be hazardous if not accompanied by development of adequate alternative means to manage inequality.